Pork Industry Case Weighed by Supreme Court

On Tuesday, the Supreme Court heard a case concerning livestock treatment that could have significant implications for interstate trade, perhaps even raising the price of bacon and other pork products across the nation.

National Pork Producers Council v. Ross involves California’s Proposition 12, under which pork sold in the state must come from pigs whose mothers were raised with at least 24 square feet of space and the ability to lie down and turn around.

The $26-billion-a-year pork industry commonly uses metal enclosures called “gestation crates,” which were prohibited under Proposition 12.

The law was approved by California voters in 2018, although it has yet to go into effect.

In September 2021, the American Farm Bureau and the National Pork Producers Council filed a lawsuit against Karen Ross in her official capacity as secretary of the California Department of Food and Agriculture. The suit challenged the proposition’s constitutionality and argued that it “will transform the pork industry nationwide.”

The plaintiffs said nearly all of the pork consumed in California came from pigs raised outside the state, the vast majority of which were not raised under conditions that meet the standards of Proposition 12.

While Californians consume 13% of the pork in the nation, the swine industry is primarily concentrated in the Midwest and North Carolina.

Pork producers said 72% of farmers use individual pig pens that do not allow the animals to turn around, and even farmers who use larger group pens do not provide the space Proposition 12 requires.

They argued that complying with Proposition 12 standards could cost the industry between $290 million and $350 million. Those costs would then be passed on to consumers — raising the price of pork products, including bacon, nationwide.

The Supreme Court is deciding whether California has impermissibly burdened the pork market and improperly regulated an industry outside state borders.

Tuesday’s oral argument lasted over two hours. Several justices raised concerns about the potential nationwide impact if the court were to affirm the proposition.

The outcome of the case could potentially affect the ability of states to pass laws that impact communities and industries outside their borders.

The plaintiffs first went to federal court in California to challenge the proposition in December 2019, arguing that it violated the “Dormant Commerce Clause.”

They suggested that there is an implicit prohibition in the Commerce Clause “against states passing legislation that discriminates against or excessively burdens interstate commerce.”

The court rejected their argument, a decision upheld by the U.S. Court of Appeals for the 9th Circuit. The challengers then appealed to the Supreme Court, which agreed in March to hear the case.

The primary sponsor of the proposition was the Humane Society of the United States (HSUS), supported by the Animal Legal Defense Fund (ALDF), Animal Outlook, and other animal protection groups.

Proposition 12 also said other animals, such as hens and calves, must be raised in conditions where they have enough room to move freely, but those portions of the law are not currently being adjudicated in this case.