The U.S. Supreme Court on Tuesday took on the challenge of deciding the constitutionality of a California law banning the sale of pork from pigs confined in small cages, unable to move around.
The pork industry contends that the California law, called Proposition 12, that defines the minimum amount of space that mother pigs, baby cows, and laying hens must be given. impermissibly regulates out-of-state farmers.
What the justices heard today is an appeal by the National Pork Producers Council and the American Farm Bureau Federation of a lower court’s decision to throw out their lawsuit seeking to invalidate a 2018 ballot initiative passed by voters barring sales in California of pork, veal and eggs from animals whose confinement failed to meet minimum space requirements, according to Reuters.
But here is the interesting part – California voters were informed by state attorneys that the measure, which is not in effect, would likely increase the price of pork while providing for more humane living conditions for pigs and potentially reducing the risk of foodborne illnesses.
California voters backed Proposition 12 with 63 percent of the vote, a margin of over 3 million votes, knowing that bacon would cost more if the law passed, reports NBC News.
In 2019, the National Pork Producers Council, which represents the pork industry, and the American Farm Bureau Federation, which represents farming interests, sued, saying the measure violates a provision of the Constitution called the commerce clause, which has been interpreted to bar states from interfering with interstate commerce.
To be very specific, the issue is whether Prop 12 violates the constitution’s “dormant commerce clause” by imposing an unreasonable burden on interstate trade. Several states ban gestation crates within their borders, but California takes the ban a step further—targeting the sale of products derived from animals born in gestation crates affects not just domestic production, but the entire pork industry.
What is the “dormant commerce clause?”
The Dormant Commerce Clause, or Negative Commerce Clause, in American constitutional law, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the US Constitution.
Primarily, the Dorment Commerce Clause is intended to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce. Courts first determine whether a state regulation discriminates on its face against interstate commerce or whether it has the purpose or effect of discriminating against interstate commerce.
And as the NPPC and AFBF argue, it will “transform the pork industry nationwide.” Given that almost all of the pork sold in the state is produced outside, Prop 12’s “practical effects are almost entirely extraterritorial.”
The plaintiffs also point out that monitoring the pork supply chain across multiple farms, packer-slaughter plants, and distributors to ensure compliance with Prop 12 is near impossible. Not only that but to become compliant with the law would be very costly to small farmsers.
But, of course, there are two sides to everything: The plaintiffs will argue that allowing the California law to stand risks allowing other states to set standards that influence food production standards nationwide.
“Allowing States to impose their own policy preferences on farmers, processors, wholesalers, and retailers nationwide will fracture national markets into regional and local affairs. That future is precisely what the framers intended the Commerce Clause to prevent.” —a brief filed by the National Association of Manufacturers
“Legal challenges to states’ and cities’ policies setting climate and clean energy standards, regulating cannabis, flavored tobacco, car sales, or firearms…could soon follow—and may succeed in striking down such laws.”– Harvard Law School report on potential reverberations of pork producers’ commerce clause challenge before the supreme court
Additionally, not all pork producers are against Proposition 12, either. Food processing company Hormel Foods says it “faces no risk of material losses from compliance with Proposition 12.” Smithfield Foods, Seaboard, and Clemens Food Group have all said they can comply with the law, too.
