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Paxton Supports Challenging California Pork Law

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Groups of pigs in a farm yard. | Image by Deyana Stefanova Robova, Shutterstock

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Texas Attorney General Ken Paxton has joined an Indiana-led multistate amicus brief in the U.S. Supreme Court against a California law that regulates the sale of out-of-state pork, veal, and eggs.

The law is Proposition 12, a measure that more than 60% of California voters approved in 2018 that was scheduled to go into effect on January 1, 2022. Specifically, the proposition “ban[s] the sale of (a) veal from calves, (b) pork from breeding pigs, and (c) eggs from hens when the animals are confined to areas below minimum square-feet requirements.”

The veal and eggs portion of the proposition is unlikely to impact supplies in the state; however, pork production is another story. The proposition would forbid the sale of most pork in California unless the pig it comes from was born to a sow housed in at least 24 square feet of space.

The National Pork Producers Council and the American Farm Bureau Federation sued the state, and the Supreme Court will hear the case during their next term, which begins in October. The suit states that the “massive costs of complying” with the law will “fall almost exclusively on out-of-state farmers” and suggests that the costs will be passed on to everyone nationwide.

The groups are directly challenging the California law claiming that current pens “provide around 14 square feet of space and — for hygiene, safety, and animal-welfare and husbandry reasons — do not allow the sow to turn around.”

California consumes around 15% of the nation’s pork, with about 87% of the pork sold in California coming from pigs raised outside the state. Under the proposition, pork producers will have to decide whether to comply with the law or not participate in the California market.

In a brief, attorneys for the plaintiffs write that “almost no sow farmers in the country satisfy Proposition 12’s sow housing requirements, and most believe that those requirements would harm their animals, employees, and operations.”

A press release announcing AG Paxton’s joining onto the multistate brief against the law states that “while California is arguably free to manage these issues within its own borders, Prop 12 reaches nationwide, effectively imposing California’s standards on the entire nation’s pork, veal, and egg industry.”

“This violates a constitutional doctrine known as the “Dormant Commerce Clause,” which prohibits state protectionism or a state’s burdening of interstate commerce,” the press release states.

“Amici States file this brief to explain that the Commerce Clause prohibits California’s attempt to usurp other states’ authority to set their own animal husbandry policies,” the brief Paxton signed onto reads. “Proposition 12 does not protect the health and safety of California consumers, and its overall benefits for animal welfare are debatable at best yet threaten to segment interstate markets . . . and create interstate conflict.”

Currently, California still allows the continued sale of pork processed under the old rules while the case is litigated.

California’s Attorney General Rob Bonta filed his own brief in defense of the law, saying that the plaintiffs “overstate the practical economic effects of Proposition 12” and noting that his state’s voters showed they have a legitimate interest in restricting “extreme methods of farm animal confinement,” and protecting their food supply from the ill effects of factory farming, like food-borne illnesses.

“A number of pork producers and suppliers have publicly announced that they have taken steps to ensure that their products will continue to be sold lawfully in California,” Bonta claimed.

Lawyers for the Humane Society of the United States and other animal welfare groups also have filed briefs in the case to defend the law. They say the proposition aims to end “cruel and unsanitary conditions that threaten the health of California consumers” and that “producers can freely sell products outside California from farm animals confined contrary to Proposition 12’s standards.”

Previously, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in San Francisco unanimously rejected the plaintiff’s argument that the law’s out-of-state effects made it invalid.

“State laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects,” Judge Sandra S. Ikuta wrote for the panel.

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