by Ria Roebuck Joseph
“Products may be marketed as free range, wild caught, or graded by quality (prime, choice, select, and beyond). The pork products at issue here, too, sometimes come with “antibiotic-free” and “crate-free” labels…Much of this product differentiation reflects consumer demand, informed by individual taste, health, or moral considerations. Informed by similar concerns, States (and their predecessors) have long enacted laws aimed at protecting animal welfare.”
This is the opinion of the Supreme Court of the United States in Thursday’s ruling which upheld a California law banning the sale of pork products in California that didn’t meet the state’s requirements.
Under the Farm Animal Confinement Initiative or Proposition 12, pork products cannot be sold in California unless the sow from which the pork-producing pig was born, was raised in a space defined by law to be no smaller than 24 square feet to prevent “cruel” confinement, that prevents a pig from “lying down, standing up, fully extending its limbs, or turning around freely.”
The petition to the supreme court was brought by the National Pork Producers Council and American Farm Bureau Federation “arguing that the law unconstitutionally interferes with their preferred way of doing business in violation of this Court’s dormant Commerce Clause precedents.”
The opinion of the court said. “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.”
The ruling ended a three year battle which began when the pork producers and the Farm Bureau challenged Prop 12 in the US District Court for the Central District of California and the US Ninth Circuit Court of Appeals, both of which dismissed the complaint.
The North American Meat Institute challenged against Prop 12 in 2019, citing the “Commerce Clause” which was also dismissed by the US District Court for the Central District of California and the US Ninth Circuit Court of Appeals but, unlike the Pork Producers and the Farm Bureau, their petition to the Supreme Court was denied.
The ruling potentially dismisses a pending similar suit brought by Iowa Pork Producers Association in 2021 which was awaiting a decision by the Supreme Court before going any further.
The petition to Supreme Court was bolstered by a brief submitted by 26 attorneys general who argued that the cost of compliance would be borne by “out-of-state producers that, though they have no vote in California, must remodel their farms (or reduce their herds) to comply with the law.”
“So even accepting everything petitioners say, we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree…
In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant “political and economic” costs and benefits for themselves and “try novel social and economic experiments” if they wish. Judges cannot displace the cost-benefit analyses embodied in democratically adopted legislation guided by nothing more than their own faith.” Justice Gorsuch wrote in his opinion.
No doubt California’s vast consumer market which imports 99.87% of all the pork it utilizes and 13% of all pork consumed nationwide, will affect pig farmers’ decisions moving forward.
Prop 12 was passed in 2018 with about 63% of the vote representing 7.5 million Californians.
It will now be up to The California Department of Food and Agriculture and the California Department of Public Health to enforce the requirements of Prop 12. Violations of the law may be seen as misdemeanors with fines up to $1,000 per pig sale. Enforcement can begin as early as July 1, 2023.
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Ria Roebuck Joseph is a contributor to The Center Square.
Photo “Pig Farm” by Saraí Zuno.
