National Pork Producers Council v. Ross: How Can A State Regulate The Products Sold Within Its Borders?

By: Alexandra Dickerman

Originally sent for publication on may 11th, 2023.

Edited By: Luke Vredenburg and Isabel Gortner

Knowledge of the inhumane practices of many farming establishments is becoming more widespread, but unfortunately, there is a lack of federal legislation protecting livestock. This problem has not gone unnoticed by the state of California, which has a history of passing protective legislation for farm animals. However, a recent lawsuit concerning the state’s most comprehensive farm animal welfare law, Proposition 12, is threatening to upend important animal welfare advancements, jeopardize public health, and call into question the sovereignty of the states. As a result, the justices of the Supreme Court, who are currently deciding the case, must consider their decision carefully, as its consequences could be significant and widespread.

While Proposition 12 is currently California’s strongest farm animal protection law, the state previously passed other laws that gradually increased the rights of animals raised within and, in some cases, outside of its borders. Proposition 2, also known as the Prevention of Cruelty to Farm Animals Act, was passed in 2008 and required California livestock producers to raise hens, sows, and veal calves in enclosures that gave them enough room to stand up, lie down, turn around, and stretch their limbs without hitting the sides of their cage. [1] While it may seem like a bare-minimum requirement, livestock producers were permitted before Proposition 2 to utilize far more extreme confinement practices, so this step was important in securing improved farm animal welfare in the state. Later, in 2010, the California legislature passed Assembly Bill 1437, which outlined that all eggs sold in the state needed to be produced in compliance with the standards set by Proposition 2. [2] This enactment heightened California’s standards regarding animal welfare, specifically for the millions of hens impacted by the law’s provisions. [3] More recently, in 2018, California voters passed Proposition 12, which some consider to be the nation’s most powerful farm animal welfare law to date. [4] This law sets standards on the minimum amount of square footage egg-laying hens, sows, and veal calves are required to have within their enclosures if producers wish to sell the animal products derived from them in California. [5] This was an improvement over the less straightforward requirements under Proposition 2 that did not specify measurement-based standards. [6] Proposition 12 also now requires all egg-laying hen producers selling eggs in California to have cage-free facilities. [7]

Producers selling relevant animal products in California were required to comply with Proposition 12’s square footage provisions for chicken and veal by January 1, 2020, and the cage-free facility requirement for chickens on January 1, 2022. [8] However, the square footage requirement for sows, which was also supposed to go into effect on January 1, 2022, is currently not being enforced due to the significant backlash against it. More specifically, one of the barriers to enforcement has been a lawsuit, National Pork Producers Council v. Ross, filed in December 2019 by the National Pork Producers Council (NPCC), a trade association representing the U.S. pork industry. [9] The NPCC argued in their complaint that Proposition 12 violates the dormant Commerce Clause, which is used to prevent states from passing legislation that “discriminates against or excessively burdens interstate commerce.” [10] In other words, the NPCC is arguing that Proposition 12 unduly burdens out-of-state pork producers who sell their products in California by requiring them to comply with the heightened standards. The defendants in the case are the Secretary of the California Department of Food and Agriculture, the Director of the California Department of Public Health, and the California Attorney General. [11]

The history of the case is as follows: the district court dismissed the lawsuit, concluding that the petitioner did not show that Proposition 12 violates the Constitution, and the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s decision. [12] The U.S. Supreme Court agreed to hear the case, which was argued on October 11, 2022, and as of now, the case is still pending. [13]

The implications of this decision will undoubtedly be significant in many ways. If the Court affirms, it would be a considerable win for animal welfare in the nation. By placing the well-being of the animals impacted by Proposition 12 over the capitalistic desires of the pork industry, the Court would be showing the movement of the judiciary, as well as the rest of the government, toward a stance of greater support for animal welfare. The decision would set a precedent that could lead to further improvements in this domain, advancing the nation’s support for the humane treatment of animals.

Moreover, the Ross decision could impact public health by affecting livestock-raising practices. Laws improving farm animal welfare standards could change the typical operational practices on many livestock farms, which, due to the often high numbers of animals they confine in extremely small spaces, may contribute to a variety of safety-related issues. For example, large livestock operations, often called “factory farms,” contribute to air pollution, the contamination of water resources, and the spread of pathogens that may cause disease. [14] Furthermore, improving animal welfare standards could reduce the reliance of livestock producers on antibiotics by potentially changing unsanitary farming practices, which would be an important step in combating the antibiotic resistance crisis currently facing our world. [15]
However, some individuals have expressed concerns about the ramifications of upholding Proposition 12 on interstate commerce in general, arguing that the law could be followed by protectionist legislation impeding trade across state or national borders. [16] For example, Justice Amy Coney Barrett asked if California could pass a law prohibiting the sale of pork from companies that do not require their employees to be vaccinated, and Justice Elena Kagan argued that states could make immigration policies through laws like Proposition 12. [17] Nevertheless, in the words of animal welfare activist Steven Wise, this type of “slippery-slope argument” is commonplace in the legal world, and at the end of the day, the Court needs to focus on the issue at hand: the degree to which California can regulate animal products sold within its borders. [18]

To help determine whether or not Proposition 12 is constitutional, the Court seems to be leaning toward using the Pike Balancing Test, which outlines that a law is not permissible if, while effectuating a local public interest, it unduly burdens interstate commerce. [19] Unfortunately, weighing the relative merits of local interests and the interests regarding interstate commerce in such cases presents a considerable challenge, as it is an inherently subjective process. There is no easy, objective answer to the question of how a state can regulate the products sold within its borders. To complicate matters further, the particular local interest at stake in this case is unclear, as the law was passed through a ballot initiative. For example, a local interest in protecting public health by implementing confinement space standards would likely be more heavily weighted than a local interest in raising livestock in a more morally-sound manner, but it is not definite which of these interests is the most substantial underpinning of Proposition 12. [20] 

In the end, the ruling for National Pork Producers Council v. Ross will undoubtedly have major ramifications in the livestock industry and beyond. The Supreme Court should heavily consider the consequences of striking down Proposition 12, not only in terms of morality and public health but also in terms of state sovereignty. The dormant Commerce Clause is intended to prevent protectionism and discriminatory interstate economic practices, but not to overly restrict the actions of the states. [21] The word of the California voters cannot be ignored without diligent deliberation, and when one considers the importance of treating animals humanely and protecting the health of the public, an affirmation by the Court seems like the correct decision.

Notes:

1. “Proposition 2: Treatment of Farm Animals,” California Legislative Analyst's Office, July 17, 2008, https://lao.ca.gov/ballot/2008/2_11_2008.aspx.

2. Cal. Health & Safety Code § 25995-25997 (2010)

3. “Commodity Fact Sheet: California Egg Industry Association,” California Foundation for Agriculture in the Classroom, August 2022, https://cdn.agclassroom.org/ca/resources/fact/eggs.pdf.

4. Ashley Chang, “This Is What Prop 12 Means For Animals,” The Humane League, October 13, 2021, https://thehumaneleague.org/article/prop-12.

5. Proposition 12, Cal. Health & Safety Code § 25990-25994 (2022)

6. Cal. Health & Safety Code § 25990-25994

7. Cal. Health & Safety Code § 25990-25994

8. Jana Caracciolo, “What Is Going on with Prop 12?,” National Agricultural Law Center, December 2, 2022, https://nationalaglawcenter.org/what-is-going-on-with-prop-12/.

9. “California Proposition 12 Resource Hub,” National Pork Producers Council, April 10, 2023, https://nppc.org/ca-prop-12/.

10.  “Commerce Clause,” Legal Information Institute (Cornell Law School, July 2022), https://www.law.cornell.edu/wex/commerce_clause.; “National Pork Producers Council v. Ross." Oyez. Accessed April 21, 2023. https://www.oyez.org/cases/2022/21-468.

11.  “National Pork Producers Council v. Ross,” Oyez, Accessed April 21, 2023, https://www.oyez.org/cases/2022/21-468.

12. Oyez, “National Pork Producers Council v. Ross.”

13. Oyez, “National Pork Producers Council v. Ross.”

14. “Other Health Risks of the Meat Industry,” PETA, June 3, 2014, https://www.peta.org/issues/animals-used-for-food/health-risks-meat-industry/.

15. “Stop Using Antibiotics in Healthy Animals to Preserve Their Effectiveness,” World Health Organization (World Health Organization, November 7, 2017), https://www.who.int/news/item/07-11-2017-stop-using-antibiotics-in-healthy-animals-to-prevent-the-spread-of-antibiotic-resistance.

16. Rich Barlow, “Your Bacon Shouldn't Be the Product of Animal Cruelty, Says Animal Rights Activist and LAW Alum,” Boston University, December 1, 2022, https://www.bu.edu/articles/2022/supreme-court-case-banning-inhumane-confinement/.

17. “Transcript of Oral Argument: National Pork Producers Council v. Ross,” Oyez, Accessed April 21, 2023, https://www.oyez.org/cases/2022/21-468.

18. Barlow, “Animal Rights Activist.”

19. Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).

20. Oyez, “Transcript of Oral Argument.”

21. Elizabeth Wydra, Brian Frazelle, and Brianne Gorod, “National Pork Producers Council v. Ross,” Constitutional Accountability Center, October 12, 2022, https://www.theusconstitution.org/litigation/national-pork-producers-council-v-ross/.

BIBLIOGRAPHY:

Barlow, Rich. “Your Bacon Shouldn't Be the Product of Animal Cruelty, Says Animal Rights Activist and LAW Alum.” Boston University, December 1, 2022. https://www.bu.edu/articles/2022/supreme-court-case-banning-inhumane-confinement/. 

“California Proposition 12 Resource Hub.” National Pork Producers Council, April 10, 2023. https://nppc.org/ca-prop-12/. 

Caracciolo, Jana. “What Is Going on with Prop 12?” National Agricultural Law Center, December 2, 2022. https://nationalaglawcenter.org/what-is-going-on-with-prop-12/. 

Chang, Ashley. “This Is What Prop 12 Means For Animals.” The Humane League, October 13, 2021. https://thehumaneleague.org/article/prop-12. 

“Commerce Clause.” Legal Information Institute. Cornell Law School, July 2022. https://www.law.cornell.edu/wex/commerce_clause. 

“Commodity Fact Sheet: California Egg Industry Association.” California Foundation for Agriculture in the Classroom, August 2022. https://cdn.agclassroom.org/ca/resources/fact/eggs.pdf. 

“Stop Using Antibiotics in Healthy Animals to Preserve Their Effectiveness.” World Health Organization. World Health Organization, November 7, 2017. https://www.who.int/news/item/07-11-2017-stop-using-antibiotics-in-healthy-animals-to-prevent-the-spread-of-antibiotic-resistance. 

“Other Health Risks of the Meat Industry.” PETA, June 3, 2014. https://www.peta.org/issues/animals-used-for-food/health-risks-meat-industry/. 

“Proposition 2: Treatment of Farm Animals.” California Legislative Analyst's Office, July 17, 2008. https://lao.ca.gov/ballot/2008/2_11_2008.aspx. 

Wydra, Elizabeth, Brian Frazelle, and Brianne Gorod. “National Pork Producers Council v. Ross.” Constitutional Accountability Center, October 12, 2022. https://www.theusconstitution.org/litigation/national-pork-producers-council-v-ross/.