SCOTUS upholds Prop 12

By Matt Reese

The long-awaited ruling from the U.S. Supreme Court on California’s Proposition 12 animal confinement law was not in favor of the arguments made by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation.

“We are very disappointed with the Supreme Court’s opinion,” said Scott Hays, NPPC president, and Missouri pork producer. “Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation. We are still evaluating the Court’s full opinion to understand all the implications. NPPC will continue to fight for our nation’s pork farmers and American families against misguided regulations.” 

The May 11 decision by the court was 5-4 with dissention from Justices Samuel Alito, Brett Kavanaugh, and Ketanji Brown Jackson and Chief Justice John Roberts.

“Companies that choose to sell products in various states must normally comply with the laws of those various states,” wrote Justice Neil Gorsuch in the court ruling. “Assuredly, under this court’s dormant Commerce Clause decisions, no state may use its laws to discriminate purposefully against out-of-state economic interests. But the pork producers do not suggest that California’s law offends this principle. Instead, they invite us to fashion two new and more aggressive constitutional restrictions on the ability of states to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

Prop 12 was approved by California voters in in 2018, but the law’s impact spreads to other states and internationally. The law sets living space standards for sows, egg-layers, and veal calves. For the pork industry, Prop 12 requires that sows must have 24 square feet or more of space. There is very little pork production in California, but the state is a huge consumer of pork and the real rub with Prop 12 is that the regulations apply to products sold in California, with fines, jail sentences and civil action in place as punishment for selling pork, eggs, or veal from animals not raised according to the standards.

Duane Stateler, a Hancock County pork producer and grain farmer who serves as vice president on the board of directors for the National Pork Producers Council, said Ohio pork producers have been on the front lines in the ongoing battle with concerns about Prop 12.

“It really affected the pork industry to have 24 square feet of open pen space because that is in total contradiction to what the industry is doing in Ohio. We all remember that we made a deal with the Humane Society of the United State and Wayne Pacelle back in 2010 that set up the Ohio Livestock Care Standards Board. Through that, we determined when gestation stalls could be used, when they couldn’t be used, the size of the gestation stalls, and then going to the open pen after the sows are determined pregnant. HSUS came in and saw some of the work that Pat Hord had done. Pat was one of the first pork producers looking at changing to be in compliance — Kalmbach and Cooper Farms were right there with him. It’s amazing that in the open pen gestation that you find at about 20 square feet there’s a lot of open pen space. People don’t understand that pigs like to be close to one another. You can have a whole barn and have 20 pigs in it and they will all be probably in one or two spots all laying up against one another — that leaves a lot of open space,” Stateler said. “So, when California Prop 12 came, they decided to make it 24 square feet because they knew the industry was at 20. The unfortunate part for residents of California is the fact that, when this was passed, it was only about 2% of the pork industry that could be compliant. Today it’s up to about 3% of the industry and California consumes about 15% to 16% of all the pork consumed in the U.S. That means someone was going to be short because you just can’t turn around and get that kind of compliance that quick. That is what Prop 12 did to us as far as for pork. And it not only involves the U.S., but Canadian pork flows into California, Mexican pork goes into California and even some European Union Danish ribs go into California. It is not just an American problem. It is also an international and export problem too.”