Next week, the US supreme court will hear oral arguments in a case that could put climate, public health and animal welfare regulations across the country on the chopping block – from California’s ban on gas-powered cars by 2035 to state bans on food packaging that contains BPA or lead.
The case will consider the constitutionality of California’s Proposition 12, a law that bans the sale of meat and eggs from animals raised using certain kinds of extreme confinement. The pork industry has been fighting Prop 12 since it passed by ballot measure in 2018 – with more than 62% of the vote and the backing of animal advocacy groups like the Humane Society of the United States – because it bans gestation crates: metal enclosures where pregnant pigs are kept for most of their lives that are so small that they can’t turn around or stretch their limbs.
The crates are standard practice in the pork industry even though, according to a supreme court brief filed by 378 veterinarians and animal welfare scientists, they “cause profound, avoidable suffering and deprive pigs of a minimally acceptable level of welfare”. According to a brief by the American Public Health Association, the Infectious Diseases Society of America and other groups, they can also contribute to disease spread to humans.
All of the pork industry’s legal challenges to Prop 12 so far have been unsuccessful, but in March, the supreme court agreed to hear its case. The US Department of Justice has since filed a brief backing the pork industry, a move that surprised many observers, especially since a group of 15 Democratic and independent senators previously urged the solicitor general to support Prop 12. (The Trump administration also briefed in favor of the pork industry when the case was being considered by a lower court.)
A decision is expected between December and next June.
At issue is whether Prop 12 violates the constitution’s “dormant commerce clause” by imposing an unreasonable burden on interstate trade. While several states ban gestation crates within their borders, California’s law takes the added step of banning the sale of pork produced with gestation crates anywhere in the world. The National Pork Producers Council and the American Farm Bureau Federation, the two lobby groups that brought the case, argue that because California imports almost all the pork it consumes from other states, Prop 12 would force the industry to overhaul its practices to cater to Californians.
Neither organization provided comment for this story.
That the supreme court took up the case at all surprised some court watchers, because the pork industry’s argument breaks with past precedent. “The constitution does not guarantee the right to pork producers to have an uninhibited national market,” said Kelsey Eberly, a legislative policy fellow at Harvard law school. “The whole idea behind the commerce clause is to prevent discrimination on interstate commerce,” she said; if, for example, California were holding out-of-state pork to a different standard than pork raised in-state, which is not the case with Prop 12.
This could signal the court’s interest in putting stricter limits on states’ ability to regulate commerce. “A lot of the time, the United States supreme court hears cases not so much to resolve the dispute between these particular parties, but to announce doctrine,” said Mark Rosen, a professor at the Chicago-Kent College of Law, who co-authored a brief defending the constitutionality of Prop 12.
It’s common for state and local laws to regulate the sale of goods produced in other states, which means that if Prop 12 goes, these too could be at risk of invalidation. According to a recent Harvard Law School report by Eberly, these could include low-carbon fuel standards, state bans on carcinogenic ingredients in personal care products, and lead and BPA in food containers, among others. California’s planned ban on gas cars would also be at risk, as well as animal welfare laws, like California’s ban on fur sales and hundreds of cities’ bans on selling animals bred in puppy mills.
Lobby groups for other industries have filed briefs urging the supreme court to overturn Prop 12, including the pharmaceutical industry and producers of foie gras – a meat product made by force-feeding ducks to engorge their livers, which has been banned in California and New York City.
Part of the pork industry’s case relies on the argument that Prop 12 would force big changes throughout the entire industry, not just on farms producing pork for California, because, it argues, “it is impracticable, in the complex, multi-stage pork production process, to trace a single cut of pork back to a particular sow housed in a particular manner.”
But many observers have cast doubt on this claim, including the UC Davis agricultural economists Richard Sexton and Daniel Sumner, who have studied the economic impacts of Prop 12 with funding from the National Pork Board. “Not only are [the industry’s] arguments flawed as a reflection of basic economic incentives, but they are factually implausible,” Sexton and Sumner wrote in a brief to the supreme court.
Some pork sold nationwide is already labeled crate-free, a claim that requires tracing. “That’s modern agriculture,” Sexton said. “Products are being differentiated in a whole variety of ways: organic, GMO-free, different properties related to animal welfare, antibiotic-free.”
Less than 10% of North American pork production will need to convert to crate-free to satisfy California’s demand, Sexton said. “So it’s a much smaller infringement in reality on commerce and pork production in the US than is being claimed.”
While the pork lobby claims that Prop 12’s requirements are unreasonably onerous, large pork companies have told their investors a different story, indicating that they would be able to comply without difficulty. In a 2020 earnings call, the Tyson CEO, Donnie King, said Prop 12 represents only 4% of its production and that the company “can do multiple programs simultaneously, including Prop 12”. Hormel said in a statement that it “faces no risk of material losses from compliance with Proposition 12”. Smithfield, the country’s biggest pork producer, stated in its 2021 sustainability report that it would comply with Prop 12 and a similar law passed in Massachusetts. A representative from the California department of food and agriculture confirmed the “relatively straightforward” process of pig tracing after visiting pork producers across the country.
Sexton and Sumner’s research found that California retail pork prices would increase about 7.2% as a result of Prop 12, but would slightly decrease elsewhere in North America. The law applies only to whole, uncooked pork cuts, like bacon and pork chops, not ground pork, combination products like hotdogs and pizzas, or pre-cooked products like deli meats. Pork products not covered by the law won’t see price increases.
While the supreme court’s pro-business inclination has made many advocates worried about Prop 12, the outcome is unpredictable. Two of the court’s conservative justices, Neil Gorsuch and Clarence Thomas, don’t believe the dormant commerce clause is appropriate doctrine, Rosen said, “and there may be others who haven’t yet declared themselves”.
“I’m hoping that the court, once it gets to oral argument, is rethinking the wisdom of granting this petition,” Eberly said. “Because the arguments on the pork producers’ side are just exceptionally weak.”