On May 11, 2023, the Supreme Court of the United States (SCOTUS) upheld, in a 5-4 decision, a California law restricting the sale of pork in California. In National Pork Producers Council v. Ross, SCOTUS was tasked with answering the question: “Does a California law that prohibits the sale of pork from animals confined in a manner inconsistent with California standards violate the ‘dormant’ component of the Constitution’s Commerce Clause,” even if the pork in question is raised outside of California? – SCOTUS determined, it does not.
The law in question, which was enacted via a ballot initiative, Proposition 12 (Prop 12), “forbids the in-state sale of whole pork meat that comes from sows (or their immediate offspring) that are “confined in a cruel manner.” Under Prop 12, confinement is “cruel” (1) if it prevents a sow from “lying down, standing up, fully extending [its] limbs, or turning around freely”; and (2) if there is less than 24 square feet of usable floor space per sow. Several states have enacted laws restricting the use of “gestation crates” on farm operations within their borders – mostly in states with little pork production (except Ohio and Michigan). However, only California and Massachusetts (via Question 3) have enacted laws that would require some forms of pork sold within their borders to meet their confinement standards, regardless of where the source animal is raised.
The National Pork Producers Council (NPPC) and American Farm Bureau Federation challenged the Prop 12 restrictions on pork sales on the basis that the burden of compliance will largely fall on farms located outside of California. NPPC estimated that the cost to farmers to implement Prop 12 measures — such as converting from gestation stalls and reducing group housing density for sows to accommodate 24 square feet of floor space — will cost approximately $3,500 per sow. Meanwhile, animal-activist groups and other supporters argued that Prop 12 was an appropriate exercise of state power to promote animal welfare and that it did not discriminate against out-of-state commerce because it treated all pork products equally.
Justice Gorsuch delivered the opinion and said in his conclusion:
The Framers equipped Congress with considerable power to regulate interstate commerce and preempt contrary state laws…While this Court has inferred an additional judicially enforceable rule against certain state laws adopted even against the backdrop of congressional silence, the Court’s cases also suggest extreme caution is warranted in its exercise. Disavowing reliance on this Court’s core dormant Commerce Clause teachings focused on discriminatory state legislation, petitioners invite the Court to endorse new theories of implied judicial power. They would have the Court recognize an “almost per se” rule against the enforcement of state laws that have “extraterritorial effects”—even though it has long recognized that virtually all state laws create ripple effects beyond their borders. Alternatively, they would have the Court prevent a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms—even though the Pike line of cases they invoke has never before yielded such a result. Like the courts that faced this case below, this Court declines both incautious invitations.
In light of the decision, California’s Department of Food and Agriculture will begin enforcing Prop 12 for products beginning July 1, 2023. Massachusetts’ Office of the Attorney General will begin enforcing its restrictions on July 13, 2023. Both laws restrict the sale of uncooked, whole cuts of pork. Ground products, ready-to-eat products, and combination products (e.g., hot dogs, pizza, soups) are not subject to their animal confinement requirements.
OFW will continue to follow developments as Prop 12 and Question 3 are implemented.
