Rule of Law

Next on the Supreme Court Docket: Farm Animal Welfare

Oral arguments begin next week in a case targeting California’s Proposition 12, a law that bans the sale of pigs raised in confinement. The ruling has implications for a wide range of other environmental and public health laws.

For more than a decade, animal welfare advocates have been fighting to—and in some cases succeeding at—get chickens, veal calves, and mother pigs out of cages that are barely larger than their bodies. In 2020, close to 30 percent of egg-laying chickens in the U.S. were raised in cage-free systems, compared to only around 5 percent in 2010. Grocery and fast food chains have primarily driven the shift through commitments to cage-free, but citizens and their representatives have also weighed in, with 14 states passing laws that ban the caging of farm animals in some way.

In 2018, the passage of one of those laws—California’s Proposition 12—pushed the issue into its most significant battle to date: On October 11, it will be challenged in front of the Supreme Court, in National Pork Producers Council v. Ross.

Segments of the pork industry and the American Farm Bureau Federation have fought this particular law aggressively because it doesn’t just prohibit cages on California farms, it also bans the sale of pork (and eggs and veal) that comes from farms using caged systems, regardless of what state they’re in. Along the way, they’ve lost multiple lawsuits in lower courts. In front of the nation’s highest court, the National Pork Producers Council (NPPC) will argue that the law violates a clause in the Constitution that prevents states from regulating commerce outside their borders.

On the other hand, lawyers, advocates, and farmers who are following the case closely say that it’s the latest industry attempt to slow the movement toward shifting to more humane farm practices. While the requirements for cage-free eggs already went into effect and the egg industry has largely adjusted without major hiccups, the pork industry has vehemently defended the practice of keeping pregnant pigs in small stalls, called gestation crates, which inhibit movement for most of the animals’ lives. Prop. 12 prohibits gestation crates and requires farmers to provide each pig with 24 square feet of space.

“This entire case is because the National Pork Producers Council does not want pigs to [be able to] turn around,” said Josh Balk, the vice president of farm animal protection at the Humane Society of the U.S. (HSUS), the organization that led the ballot initiative effort in California. “That is the issue.”

However, the case has implications that extend beyond the lives of the country’s breeding pigs, as evidenced by the dozens of amicus briefs filed on both sides by groups representing diverse interests—from religious and constitutional scholars to those representing family farmsstate governments, and public health concerns. The Biden administration has even weighed in, on the side of the pork industry.

One question at the center of the case is whether the moral concerns of citizens can be used to pass laws that shape farm practices. The case is also pitting farmers who believe in smaller-scale, crate-free production against powerful corporations that control the pork industry. Finally, legal experts say that if the court strikes down Prop. 12 based on NPPC’s argument, the ruling could make other state environmental justice and consumer protection laws—such as low-carbon fuel standards that affect energy producers in other states and laws that restrict the sale of products that contain harmful substances and are manufactured out of state—vulnerable.

“It would open up the door to a lot of litigation filed by industry, which just wants to be exempt from state and local regulations they find inconvenient,” said Brian Frazelle, senior appellate counsel at the Constitutional Accountability Center (CAC).

And while experts say they cannot predict how the justices will rule, over the past few years, as the Court has shifted to the right, corporations and business interests have been on a winning streak.

The Arguments

CAC, which submitted an amicus brief in support of Prop. 12, has been working on cases that involve what is referred to as the “Dormant Commerce Clause” doctrine for a long time. The Commerce Clause in the Constitution says that while states can regulate business within their barriers, Congress has the power to regulate interstate trade. When Congress hasn’t passed a law on a particular issue, the “Dormant” version may be applied, Frazelle explained. In the past, courts have applied the Dormant Commerce Clause doctrine in cases where states pass laws that are clearly intended to give businesses within their borders advantages at the expense of businesses in another, such as in a 2019 case where a Tennessee law regarding wine sales heavily favored state residents.

In this case, NPPC’s argument starts with the fact that 99 percent of pork sold in California is produced in other states. Because Californians buy about 15 percent of the pork sold in the country, the small group of packers and distributors who control the industry will start providing pork that complies with the law. Due to the integrated structure of the industry, they say it will be too complicated to sort out non-compliant from compliant pork. As a result, the majority of farmers across many states will be forced to comply with the requirements in order to sell their pigs. The NPPC argues that this will lead to added costs, higher prices for consumers everywhere, and to pork shortages as the industry adjusts.

NPCC did not respond to an interview request from Civil Eats by press time, but its arguments are laid out clearly in its complaint and various materials on its website. In September, farmers who also hold positions at the organization told ag news publication DTN that if Prop. 12 is upheld, additional states could pass laws with different space requirements for farm animals, making it impossible for farms, especially smaller farms, to keep up.

“Individually, producers are not going to be able to handle that at a small level and therefore they will end up pushing small producers out of the business,” Minnesota pork producer and NPPC president Terry Wolters said.

But Frazelle said that while any constitutional law expert would agree that no state law can regulate businesses in other states, the overall argument falls apart on several fronts, and several lower courts have agreed.

First, the idea that any farm will be forced to comply is flimsy, he said, because “if market participants . . . find it economically worth their time to continue selling in California, they’ll make the changes necessary to do so. If they don’t find it advantageous, they can stop.”

In addition, there is significant evidence that shows the industry can and will likely produce both compliant- and non-compliant pork and develop supply chains that can differentiate and distribute it accordingly. Over the past year, California Department of Food and Agriculture’s animal care program manager Elizabeth Cox visited 10 hog farms and processing plants in several states to discuss Prop. 12.

Farms, including those owned or associated with JBS and Clemens Food Group, “all demonstrated their commitment to production of Prop. 12-compliant pork,” she wrote in a July report. Smithfield is the world’s largest pork producer, and at a visit to one of their processing plants, “employees confirmed that the company is hard at work constructing and upgrading sow farm facilities to serve consumer demand in California for Prop. 12-compliant pork.” Cox also noted that processing plants already had tracing and segregation systems in place to separate premium pork from conventional products and that operators planned to use those same systems to keep California-bound pork separate.

Perdue owns Niman Ranch, a brand with systems that already comply with the law, and it filed its own brief in support of Prop. 12. Hormel’s Applegate brand is already compliant and it put out a statement saying the company is “preparing to fully comply” with the law. TysonSeaboard, and Hormel have all stated in company communications that they are able to provide compliant pork and are preparing to do so.

“On one end, there’s this lawsuit talking about, ‘It can’t be done. It’s going to cause such disruption,’” Balk said. “And on the other end, the pork producers themselves are saying, ‘We can do it, so come to us for the pork.’”

There is a cost associated with the changes, especially since over the past 20 years, the industry has been driving a shift to fewer, larger farms that pack in more pigs, bringing the cost of production way down. NPCC says the added costs threaten producers’ livelihoods, despite a premium paid in the marketplace. But in an August panel discussion hosted by Niman Ranch, Chris Oliviero, the company’s general manager, called Prop. 12 “truly beneficial for small farmers,” since it could provide a larger market for family-scale farms that use more expensive systems and can’t typically compete with conventional pork on price.

In one amicus brief filed in support of Prop. 12, a group of family farm organizations argue that due to intense consolidation, the largest pork integrators stifle competition and innovation. Increasing demand for crate-free pork, then, provides an opportunity for smaller players to compete. “Independent farmers are willing to meet this demand, and in doing so, can access some of the wealth and power that has accumulated only for pork integrators, and redistribute it back to local communities, businesses, and families,” they wrote.

Upholding Prop.12 will almost certainly cause prices California consumers pay for pork to rise. But while the pork industry has publicized drastic price increases that would be triggered by a sudden drop in supply, the best independent research analysis to date predicted an 8 percent increase in the price of uncooked pork, equal to about $0.25 per pound. Researchers predicted that the price of cooked pork products, which are not covered under the law, would stay the same.

Cage-Free Eggs Came First

There’s also a case study to be found in what has already happened in eggs. “Quite a few states have already passed laws that regulate the sale of eggs produced in confinement systems even when produced out of state, and the egg industry has been more adaptable than the pork industry,” explained Delcianna Winders, the director of the Animal Law and Policy Institute at Vermont Law School.

In California, a previous ballot initiative approved by voters in 2008 included less-specific space requirements for egg-laying chickens and didn’t ban the sale of eggs from caged hens or pigs in the same way. Still, the egg industry fought it in a similar fashion and warned of high prices. Egg prices spiked in the first year after the law’s implementation and then settled at 9 percent higher per dozen compared to before.

In 2018, the Association of California Egg Farmers warned that Prop. 12 would result in additional supply disruptions and price spikes. Four years later, they’ve changed their tune. In fact, the organization submitted a brief to the Supreme Court in favor of upholding the law, writing that the shift to cage-free has been good for the egg industry. California producers have increased cage-free production, which has helped them sell more to retailers and consumers who more than ever are looking for more humanely produced animal products.

And there’s no evidence yet that Prop. 12’s new requirements have raised the price of eggs in the state, although that could be because the transition away from cages was already well underway. “The egg industry’s experience suggests that the transition will be manageable for the pork industry,” they write in the brief.

The Outcome

After arguments are heard on October 11, it will likely be months before the Supreme Court makes a final decision, experts say, and in the meantime, they’re reluctant to predict outcomes. One might assume the more conservative justices would side with industrial agriculture interests in a case regarding animal welfare, which is now seen as a liberal cause. But Frazelle noted that in the past, Justice Thomas has indicated he is against the Dormant Commerce Clause doctrine, and Gorsuch has also been skeptical of its application.

There are also multiple ways the court could rule that might overturn aspects of Prop. 12 or relate back to other parts of the argument embedded in the Commerce Clause claim, like whether California has a legitimate “local interest” based on claims regarding public health and respecting the moral convictions of its residents. But if the law is fully overturned, other state laws that ban the sale of eggs from caged hens would be suddenly vulnerable to challenges, and other proposed laws to ban pork from sows raised in gestation crates would likely be stalled. And Frazelle said, “it would really open the Pandora’s Box” in allowing challenges to other state laws meant to protect citizens. An August report from Harvard Law School’s Animal Law & Policy Program includes a long lists of laws that could fit into that category because they impact products and services that are not produced or distributed within a single state. It includes state laws that require energy companies to meet greenhouse gas emissions standards, food safety laws like restrictions on BPA in baby food containers, and regulations that mandate recycled materials in product packaging.

Still, continued advocacy and consumer concern seems to be driving the movement toward a full-scale shift to cage-free eggs regardless, and consumer sentiment is certainly continuing to push retailers and food companies to make similar, albeit slow, changes to their pork sourcing, regardless of what laws allow. On the Niman Ranch panel, Olivero said the case might even help accelerate that movement. “There’s so much more attention to this issue than there was even when it was passed,” he said, “and probably more discussion than had the industry just gone forward and implemented it.”

Complex legal doctrines aside, Winders said, “These are female pigs who spend the majority of their lives unable to stand up, lie down, or turn around. It’s not a radical thing [to change this practice]. It’s really basic.”