Under California’s Proposition 12, a farm animal protection law that was passed in 2018 and went into effect this year, it’s illegal for hens, sows, and veal calves to be confined in what the state calls “a cruel manner.”
The legislation, known as the Prevention of Cruelty to Farm Animals Act, also prohibits the in-state sale of products from caged animals raised out-of-state—and this has been a major concern of the National Pork Producers Council (NPPC) and the American Farm Bureau Federation. The law also states that each sale of an illegal (i.e., non-compliant) pork product is punishable by a $1,000 fine per violation or a 180-day prison sentence.
Now, the Supreme Court has agreed to hear a challenge to the law on behalf of the NPPC and the American Farm Bureau Federation as they look to overturn the decision. The organizations say that the act “sets arbitrary animal housing standards that lack any scientific, technical, or agricultural basis,” and add that the law will only inflict economic harm on U.S. hog farmers and consumers.
“We are extremely pleased that the Supreme Court will consider the constitutionality of Proposition 12, in which California seeks to impose regulations targeting farming practices outside its borders that would stifle interstate and international commerce,” said Terry Wolters, NPPC’s president, in a prepared statement. The organization added that pork is a $26 billion per year market, and the estimated costs for compliance with the legislation are needless expenses to for consumers downstream.
Shashank Upadhye, an attorney at Upadhye Tang LLP, an FDA and IP law firm, notes that the Supreme Court has always been concerned over one state’s ability to regulate the conduct of out-of-state actors under the dormant or negative commerce clause. Therefore, the thrust of this hearing is on the Constitutional law aspect of the dormant commerce clause, which refers to the constitutional prohibition of states passing legislation that discriminates against or excessively burdens interstate commerce.
“The [National] Pork Producers Council argue that California’s law is an illegal extraterritorial overreach because it illegally regulates conduct outside of California, and the regulation is significantly impactful,” says Upadhye. “Now, under Supreme Court law, many states can justify certain out-of-state regulation when the underlying law is grounded in protection of the state’s human health. So, the Supreme Court will also look to see if the human health exception (under Pike v. Bruce Church) can save the Prop 12 laws.”
Upadhye notes that, during the hearing, California will likely argue that Proposition 12 only regulates in-state activity—the sale of pork in California—and will further argue that it’s not necessary to look at the practical effect of its regulation beyond the point-of-sale or any pre-sale activity. “California will argue that, under its ability to protect its own citizens, under the Pike v. Bruce Church human health exception, Prop 12 survives,” he says. “It will argue that having mother’s being able to freely move around in a pen reduces illnesses that can be transmitted to humans.”
The Supreme Court has often determined that California’s regulatory efforts are overreach. “If the Supreme Court rebukes California again, the law will be struck down as unconstitutional,” Upadhye says.