California Pigs to Have Their Day in Supreme Court

On Tuesday, a hearing is set to take place in the U.S. Supreme Court (SCOTUS) as part of a case that could have wide-ranging implications for animal welfare protections and a host of other safeguards in the country.

The case—National Pork Producers Council v. Ross—involves a pork industry challenge to California's Proposition 12, an animal welfare law adopted in 2018 via ballot initiative requiring that certain meat products and eggs sold in the state meet minimum humane, health and safety standards.

Prop 12 requires that "farmed animals raised in California be provided cage-free housing and more living space, specifically applying to mother pigs, egg-laying hens, and calves raised for veal," Maha Bazzi, farming campaign manager from nonprofit World Animal Protection, told Newsweek.

Significantly, Prop 12, which is widely considered to be among the strongest measures aimed at preventing farm animal confinement in the world, also mandates that all pork, eggs, and veal sold in California must adhere to these requirements.

A pig in a gestation crate
A pig inside a gestation crate. Prop 12 requires that mother pigs be given enough room to stand up, lie down, turn around, and extend their limbs. The HSUS

Californian voters passed the ballot initiative with over 63 percent approval in response to both animal welfare and public health concerns.

"On factory farms, egg-laying hens are crammed into cages where they can't spread their wings. Baby calves are taken from their mothers and confined in crates so small they can barely move. Mother pigs are locked in crates barely larger than the width and length of their bodies, unable to even turn around," Ben Williamson, U.S. executive director of Compassion in World Farming, told Newsweek.

"These conditions are not only cruel to the animals, but they also increase the spread of diseases, which then sicken people."

When it comes to pork products in particular, the standards set by Prop 12 require that mother pigs be given enough room to stand up, lie down, turn around, and extend their limbs. That equates to a living space measuring at least around 5 feet by 5 feet—or 24 square feet in total.

Keeping mother pigs in "gestation crates" measuring around 2 feet by 7 feet—a common industry practice—does not meet this standard, Chris Green, executive director of the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School, told Newsweek. While mother pigs in gestation crates can sit, stand and lie down, there is not enough space to turn around.

"California pork producers have had to meet these requirements for several years, but in 2018 California consumers overwhelmingly voted to apply the same standards to any such products sold within the state, regardless of where they were produced," Green said.

Now pork producers in Iowa and other states are challenging Prop 12 because they don't want to comply with these space requirements in order to sell their products in California, despite the fact that they have had nearly four years to prepare for the updated rules.

The National Pork Producers Council (NPPC), which represents pork producers across the country, filed a lawsuit challenging Prop 12, arguing that the law is unconstitutional because it causes "extraterritorial" effects and imposes a substantial burden on interstate commerce.

The pork industry has challenged the law, alleging that it violates the Commerce Clause of the U.S. Constitution, which prohibits states from discriminating against or imposing undue burden on interstate commerce.

According to the challengers, complying with Prop 12 places an undue burden on the industry because it effectively forces all or most hog farmers, regardless of their location, to comply with the California law, even though it mostly affects transactions outside of the state (87 percent of pork produced in the United States Is consumed outside California but the state is the country's largest pork market).

The pork producers allege that it will be costly and complicated to meet the state's requirements while continuing to provide products to its markets.

Prop 12 has been upheld in several lower federal courts over the past few years, including in the Ninth U.S. Circuit Court of Appeals in 2021. But despite this, the case has now worked its way up on appeal to the highest court in the land after the Supreme Court decided to review the dismissal of the pork producers' case in March, 2022. Oral arguments on the case will be heard on October 11, 2022, and a ruling is expected by next summer.

"There already have been five separate lawsuits just over California's Proposition 12––in addition to several previous lawsuits by the egg industry and foie gras producers challenging other California animal welfare and health standards," Green said.

"Every single one of those cases was thrown out by courts that found no constitutional issues because the laws in question applied equally to both in-state and out of state producers. Just last summer in June 2021, the U.S. Supreme Court itself declined to hear another meat industry challenge to Proposition 12. That's why everyone was so surprised when the current Court suddenly reversed course and granted certiorari to the pork producer's challenge last March."

According to Green, it is "impossible" to predict the outcome of the Supreme Court case because there was no "rational" reason for the Court agreeing to hear the appeal in the first place. It is also not known what positions the newest justices will take on the issue.

"Our August report outlined at least five different directions the Justices could take that are all equally plausible given the Court's recent willingness to radically depart from established precedent," Green said.

"That said, one point that has been somewhat lost in the commentary is that this specific challenge is to the lower court's granting of a motion to dismiss the pork producers' case," Green said. "On this type of appeal, the Court must accept all the pork producers' claims at face value as if they were true, even if those claims haven't yet been verified. So even if the Supreme Court does decide to revive the pork producers' lawsuit, the case still would go back to the lower courts to be tried on the merits and determine if the industry's claims are indeed true and valid."

The outcome of this case could have significant implications for animal welfare regulations in the United States, but also on the law in several other domains.

If California wins the case, the outcome would mean that the states with the most progressive animal welfare policies will effectively be able to set standards nationally for the well-being of many livestock animals, and may even be able to require basic conditions for human labor in the production of products sold in California, David Favre, a professor of law at Michigan State University College of Law, Michigan State University, wrote in The Conversation.

But if the court rules against California, supporters of Prop 12 argue that a wide range of regulations designed to protect the public could be under threat,

"By challenging Prop 12, the NPPC is asking SCOTUS to value the rights of giant corporations over the rights of states and communities to pass laws responsive to the health, safety, and moral concerns of their residents," Williamson said. "Beyond animal welfare, the case could radically limit states' authority to address hundreds of state health, safety, and welfare laws."

According to Green, the case "strikes at the very heart" of voters' and states' ability to determine their own health, safety, and welfare standards.

"If states are unable to apply these standards to all products sold within their borders, then out-of-state producers could flood the market with cheaper products that are less safe, less healthy, and less humane," he said. "Given that 10 states have similar confinement requirements, the impact on human health and farmed animal welfare could be severe."

"But importantly, the Court's decision could have far-ranging implications for a slew of other safeguards, including standards related to environmental protection, energy production, climate change, product safety, and even child exploitation. The pork producers' position is that no state should be able to set such standards if they carry an economically burden. That should be frightening to every American, not just Californians."

Correction 10/12/22, 5:33 a.m. ET: This article was corrected to fix a misspelled word.