On
August 11th, Massachusetts Attorney General Maura Healy and a coalition of
restaurant trade associations and National Pork Producers Council entered a
joint motion to stay the enforcement of Massachusetts’ Question 3 regulations
pertaining to pork sales in the state (330
CMR 35). The stay will delay the enforcement of Massachusetts’ pork sale
restrictions (but not restrictions on egg or veal sales) pending the resolution
of Supreme Court challenge to similar California legislation in National Pork Producers Council v. Ross.
Massachusetts’
Department of Agricultural Resources promulgated several restrictions on pork
sales to implement a 2016 law passed by ballot initiative, Question 3. Question
3 instituted several animal new welfare standards for swine, laying hens, and
veal calves. Notably, the legislation not only applied to animals raised within
Massachusetts, but also to eggs, pork, and veal raised outside the state.
Massachusetts’ regulations require that uncooked “whole pork meat,” including bacon,
ham, chops, and ground pork (but not sausage) sold in the state (either to
consumers, retailers, restaurants, or distributors) could not be derived from
hogs or the direct offspring of hogs that had been confined in housing that did
not meet Massachusetts standards.
Massachusetts
planned to begin enforcement of its Question 3 regulations beginning August 15,
2022. The timeline for implementation posed numerous challenges for pork
producers, distributors, and retailers. Massachusetts did not publish its
regulations until June 10, 2022 and began publishing clarifying guidance
in July 2022. Earlier this month, the coalition of restaurants and NPPC sought
to enjoin Massachusetts from enforcing its regulations in Massachusetts Restaurant Ass’n v. Healy (22-cv-11245, D. Mass.) on
dormant Commerce Clause grounds.
The
U.S. Supreme Court will hear a challenge the constitutionality of California’s
restrictions on pork sales this fall in National
Pork Producers Council v. Ross (Docket
No. 21-468). Like Massachusetts’ law, California’s regulations implement a
2018 ballot initiative (Proposition
12) that would restrict the sale of pork raised outside of California. The
outcome of the NPPC case will likely clarify
the extent of a states’ authority to impose restrictions on out-of-state businesses
that sell products in the state.
