More than two dozen state attorneys general and the Biden administration are siding with farm groups in a battle over California’s Proposition 12.
Ohio Attorney General Dave Yost recently joined 25 other state AGs in filing an amicus brief urging the U.S. Supreme Court to overturn a lower court ruling that bans the sale of pork, eggs and veal in California from animals that don’t meet new space requirements for breeding animals.
“The West Coast can’t seem to understand that this is not the ‘United States of California’ and that farmers in Ohio and other states don’t need to be told how to raise animals,” Yost said, in a June 27 statement. “California imports most, if not all, of its meat, whereas Ohio is known for its agricultural production. It’s best to leave regulation to the experts.”
The U.S. solicitor general filed an amicus brief June 17 siding with the National Pork Producers Council and American Farm Bureau Federation in their case against California, saying California cannot “extend its police power over animal welfare beyond its jurisdictional bounds by regulating out-of-state activity with no in-state impact based on a philosophical objection.”
Case background
In 2018, California voters passed Proposition 12, a ballot initiative developed by the Humane Society of the United State that amends the California Health and Safety Code to prohibit confining breeding pigs, egg-laying hens and veal calves “in a cruel manner.”
According to California, this means female pigs 6 month of age or older must have at least 24 square feet of usable floor space per animal. The regulation also prohibits the sale of pork from other states that did not follow this space requirement.
The amendment faced a legal challenge by the National Pork Producers Council and American Farm Bureau Federation. The groups argued Prop 12 violates the dormant commerce clause, which says that because Congress has power over interstate commerce states cannot discriminate against or unduly burden interstate commerce.
California has less than 1% of the nation’s breeding pig herd but consumes about 13% of pork eaten in the U.S., so Prop 12 will primarily impact other states, the farm groups argued.
Last July, the 9th U.S. Circuit Court of Appeals ruled against the farm groups. They appealed to the Supreme Court. which announced in the spring it would hear the case. The Humane Society and other animal rights groups intervened in the case.
The implementation of Prop 12 on pork has been put on hold as California has yet to release its final rules. The Supreme Court will hear oral arguments on the case in October.
Local impact
Prop 12 has the potential to hit pork producers across the country hard with its space requirements because pork is a commodity, Michael Formica, general counsel for the National Pork Producers Council, told Farm and Dairy, in an interview.
“California is such a big market player, they impact the streams of commerce everywhere,” he said. “This case is about pigs, but we have the full breadth of the U.S. economy supporting us because at its core, it’s about ‘can one state tell another state what to do?’”
Ohio and Pennsylvania are both among the top states for pork production in the country, according to U.S. Department of Agriculture data. Ohio has 2.6 million hogs. Pennsylvania has about 1.3 million hogs.
Formica said few farmers in the country meet Prop 12’s space requirements. Nearly three-quarters of farmers with breeding hogs in the U.S. keep them housed in individual pens through gestation with about 14 square feet of space, according to the lawsuit.
The other quarter of farmers keep their sows in group pens with about 16-18 square feet of space per sow, but only after a sow finishes weaning and is confirmed to be rebred, Formica said. While this is common pen sizing within the industry, research funded by the Pork Checkoff found that more space is better in group pens. A 2013 study recommended that, at minimum, group housed gilts have 15-18 square feet, mature sows have 19-24 square feet and mixed groups have 18-23 square feet.
To be compliant with Prop 12, most farmers would either have to reduce the size of their pig herd or retrofit their facilities, Formica said. The lawsuit alleges that would cost producers between $294 and $348 million and increase production costs 9% per pig at the farm level. That in turn would increase costs for consumers.
The California spacing standards would be at odds with Ohio’s own Livestock Care Standards Rules, which is already requiring pregnant sows be housed in group pens by the end of 2025, though it does not specify the size group pens must be. It also allows individual pens to be used post-weaning to confirm the sow is pregnant, something that is at odds with the Prop 12 rules.
“If you’re a farmer in Ohio, and you’ve invested money to upgrade your facilities pursuant to state law requirements, now you can’t sell your pork into the California market,” Formica said.
Alternative perspective
Two agricultural economists with University of California Davis filed a brief with the Supreme Court calling the farm groups’ economic arguments “erroneous and implausible.”
Richard Sexton and Daniel Sumner, who have conducted research for the California Department of Food and Agriculture and the National Pork Board, said Prop 12 would increase pork prices in California but likely won’t have much of an impact on the rest of the country.
Unlike the presumption that the whole of the U.S. pork industry will be pressured to comply, Sexton and Sumner predict only some out-of-state farmers will face the higher costs to comply with Prop 12 in order to capture that premium market. The rest of the producers will “suffer at most only marginal economic harm” and focus sales outside of California, where the majority of the U.S. pork market exists.
Opposition
The Humane Society of the United States said it is disappointed in the Biden administration’s brief supporting the farm groups’ case, but found it encouraging that the brief stopped short of openly endorsing the pork industry’s radical legal theories and specifically noted that state laws like Proposition 12 can be constitutional under the right conditions.
“The California Attorney General and our lawyers will now focus on making clear in our briefing to the Supreme Court that Proposition 12 meets everyone one of the conditions set forth in the Biden brief,” Sara Amundson, president of the Humane Society Legislative Fund, wrote in a blog post.
(Reporter Rachel Wagoner can be reached at rachel@farmanddairy.com or 330-337-3419.)
