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This summer the U.S. Supreme Court and the United States Circuit Court of Appeals for the Ninth Circuit (9th Circuit) have issued rulings in two different cases challenging California's Proposition 12. Proposition 12, a 2018 ballot initiative, enacted animal welfare standards that will impact all livestock producers who want to sell meat in California. Given the size of the California economy, many viewed Proposition 12 as a groundbreaking national livestock production standard and one worth challenging in court. However, the recent federal decisions, described in more detail below, indicate that Proposition 12 may be here to stay, at least until the next appeal is filed.
Proposition 12
In 2018, California voters approved The Prevention of Cruelty to Farm Animals Act, known as Proposition 12, by a vote of 63%. According to the U.S. Humane Society, Proposition 12 “is the strongest law in the world addressing farm animal confinement.” The first parts of Proposition 12 took effect in 2020, requiring more space for egg-laying hens and veal calves. The remainder of Proposition 12, due for implementation by January 1, 2022, requires eggs to come from cage-free hens and prohibits the sale of pork from hogs that are: (a) born of a sow that cannot lie down, stand up, fully extend its limbs, or turn around without touching the side of its stall or another animal; or (b) raised in a pen with less than 24 square feet per pig. Importantly, Proposition 12 also prohibits the sale in California of eggs, pork, and veal from facilities that confine animals in contravention of the law.
Commerce Clause
The opponents to Proposition 12 argue it violates the U.S. Constitution’s Commerce Clause (Article 1, Section 8) and more specifically the dormant Commerce Clause. According to the Commerce Clause, only the U.S. Congress has the power to regulate commerce among the states. A judicially-formed doctrine from the Commerce Clause, known as the dormant Commerce Clause, prevents one state from imposing “unduly burdensome” regulations on products from another state. More specifically, states cannot pass a law that discriminates against out-of-state products and harms the national economy. The opponents of Proposition 12 argue it dictates the practices used to produce the meat sold in California, instead of just raised in California, and it places an undue burden on interstate commerce.
U.S. Supreme Court's Ruling
On June 28, the United States Supreme Court refused to hear an appeal (in legal terminology denied certiorari) of The North American Meat Institute (NAMI) vs. Bonta, No. 20-1215. NAMI was joined in the case by a coalition of numerous states, including Indiana, Arkansas, and South Carolina. NAMI sought review of a decision issued by the U.S. District Court and upheld by the 9th Circuit, upholding Proposition 12. According to NAMI, the “Ninth Circuit’s decision conflicts with the decisions of other federal courts of appeals on the question of whether the Constitution limits a State’s ability to extend its police power beyond its territorial borders through a trade barrier dictating production standards in other states and countries.” In the recent past, the Supreme Court has declined to hear similar challenges to California’s statute banning the sale of force-fed foie gras, as well as to California’s precursor law to Proposition 12 prohibiting the sale of certain cruelly produced eggs, pork and veal, and a similar Massachusetts law. Without a grant of certiorari by the Supreme Court, the lower court’s decision will stand - meaning out-of-state producers will have to comply with California’s regulations.
Ninth Circuit's Ruling
A month following the Supreme Court's decision, on July 28, the 9th Circuit issued a decision in Nat’l Pork Producers Council, et al v. Karen Ross, et al, No. 20-55631, upholding the constitutionality of Proposition 12. At oral argument, the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) asked the Court to strike down California’s Proposition 12 as unconstitutional based on the dormant Commerce Clause. The NPPC and AFBF further argued Proposition 12 had the impermissible extraterritorial effect of regulating prices in other states and, as such, is unconstitutional. The 9th Circuit disagreed and found legal precedent related to exterritorial effects does not apply to Proposition 12 because the law does not dictate the price of a product. The 9th Circuit also considered whether Proposition 12 violates the dormant Commerce Clause by imposing excessive burdens on interstate commerce (higher production costs in other states). The Court held a law is not impermissible unless it regulates conduct that is entirely out-of-state. In other words, because Proposition 12 applies to both California and non-California pork production the higher cost of production is not an impermissible effect on interstate commerce. Unless appealed or reheard, the 9th Circuit's ruling leaves Proposition 12, and the associated livestock production requirements, in place.