In 2018, California voters passed Proposition 12, an initiative banning the sale of veal, pork, and eggs from animals that are raised in pens smaller than Proposition 12 deems humane. The National Pork Producers Council challenged this law in court, saying California has no right to impose its standards on how farmers raise pigs in South Dakota or anywhere else. Last week, the United States Supreme Court sided with California and upheld Proposition 12.
The vote count from the bench is not straightforward; the nine justices split different ways on different issues. But the final impact of the ruling is that the Supreme Court has affirmed states’ rights to regulate what is sold within their borders:
One principle central to the ruling is that a state or local law that treats in-staters and out-of-staters differently is presumed unconstitutional. For example, Michigan‘s law allowing in-state but not out-of-state wineries to sell directly to consumers through the mail was found unconstitutional by the Supreme Court.
As the court has previously explained, the Constitution prohibits enforcement of state laws driven by “economic protectionism — that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” California’s Proposition 12 is not discriminatory in this way. It applies the same standards for pork sold by both in-state and out-of-state companies. In fact, the challengers did not claim that the California law is discriminatory or protectionist.
The Supreme Court has long held that a nondiscriminatory state law should be upheld unless its burdens on interstate commerce are clearly excessive in relation to its benefits. Several of the justices observed that there is no indication that the California law would place a significant burden on interstate commerce or that it is clearly excessive in light of the state’s interest in ensuring that pork is humanely produced. Ultimately, the Supreme Court ruled that California officials and voters may regulate what is sold in California so long as they treat in-state and out-of-state producers alike.
Under the Constitution, Congress could use its power to regulate interstate commerce to override Proposition 12 and decree national standards for pork production. But until it does, states should be able to decide for themselves. As Justice Neil M. Gorsuch wrote for the majority, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list” [Erqin Chemerinsky, “The Supreme Court Says California Can Regulate Pork. That’s Big, Even If You’re Not a Pig,” Los Angeles Times, 2023.05.11].
This ruling puts Humane Society International CEO Kitty Block in hog heaven:
While the lengthy opinion contains several concurrences and dissents, the Court unanimously rejected the pork industry’s primary claim: that Proposition 12’s ban on the sale of pork from cruelly confined animals is unconstitutional merely because it may have indirect so-called “extraterritorial” effects on out-of-state pork producers. The Court noted that “Companies that choose to sell products in various states must normally comply with the laws of those various states.” Proposition 12 is one more such law.
Ending the extreme confinement of farmed animals is not only crucial for animal welfare, but also critical for human health. The American Public Health Association, Infectious Diseases Society of America and Center for Food Safety submitted an amicus brief in support of Proposition 12, which stated plainly that the extreme confinement of mother pigs “poses a profound danger to food safety and public health in California.” Confining mother pigs in crates so small that they can’t even turn around “severely suppresses” their immune systems, making it so both they and their piglets are “more susceptible to disease.” These diseases can spread to humans, since pigs are “ideal mixing vessels for various strains of influenza virus, including human influenza.” Today’s decision made clear that California voters may have enacted Proposition 12 with the goal of reducing such health risks of food sold within their state’s borders.
The Court’s decision gives the judicial “green light” for further progress to be made on behalf of animals currently suffering from extreme confinement. This is an issue that resonates with people across various walks of life. A recent poll found that 80% of American voters—including strong majorities of both Republicans and Democrats—want a law like Proposition 12 passed in their states. So far, we have helped ensure passage of laws in 14 states (both “red” and “blue”) banning one or more forms of extreme confinement and/or the sale of meat and eggs that come from such cruelty [Kitty Block, “Supreme Court Upholds Strongest Farm Animal Protection Law in U.S.,” A Humane World, 2023.05.11].
Pork producers continue crying that California is imposing its morals on other states, but hey—who says pork producers have to sell their chops to California? If you want to keep raising sows in pens smaller than 24 square feet, just market your bacon to other states that have no beef with your pork space. That’s states’ rights, right?