Major blow to pork and ag sector, but Kavanaugh dissent comments could mean further challenge ahead
The U.S. Supreme Court upheld California’s new humane-pork law, rejecting an industry challenge in a ruling buttressing the power of states to impose rules that have a broad economic impact on other parts of the country. The ruling could force pork producers to implement costly changes to keep selling in the country’s most populous state. Link to ruling.
The industry argued unsuccessfully that California is violating the Constitution by regulating commerce outside its borders.
The Supreme Court ruled that the case was properly dismissed by lower courts. Pork producers had said that the law could force industry-wide changes and raise the cost of bacon and other pork products nationwide.
The decision of the court was 5-4, with Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson dissenting. “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” said Justice Neil Gorsuch, writing for the majority.
Kavanaugh’s opinion: “I add this opinion to point out that state economic regulations like California’s Proposition 12 may raise questions not only under the Commerce Clause, but also under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause. Although the Court today rejects the plaintiffs’ dormant Commerce Clause challenge as insufficiently pled, state laws like Proposition 12 implicate not only the Commerce Clause, but also potentially several other constitutional provisions, including the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause. In other words, if one State conditions sale of a good on the use of preferred farming, manufacturing, or production practices in another State where the good was grown or made, serious questions may arise under the Import-Export Clause. I do not take a position here on whether such an argument ultimately would prevail. I note only that the question warrants additional consideration in a future case. Under this Court’s precedents, one State’s efforts to effectively regulate farming, manufacturing, or production in other States could raise significant questions under that Clause [Privileges and Immunities Clause]. Again, I express no view on whether such an argument ultimately would prevail. But the issue warrants further analysis in a future case.”
Kavanaugh conclusion: “It appears, therefore, that properly pled dormant Commerce Clause challenges under Pike to laws like California’s Proposition 12 (or even to Proposition 12 itself) could succeed in the future — or at least survive past the motion-to-dismiss stage. Regardless, it will be important in future cases to consider that state laws like Proposition 12 also may raise substantial constitutional questions under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.”
California’s law requires more space for breeding pigs, and producers say it would force the $26 billion-a-year industry to change its practices even though pork is produced almost entirely outside California.
The justices upheld lower court rulings dismissing the pork producers’ case.
The case before the court involved California’s Proposition 12, which voters passed in 2018. It said that pork sold in the state needs to come from pigs whose mothers were raised with at least 24 square feet of space, with the ability to lie down and turn around. That rules out confined “gestation crates,” metal enclosures that are common in the pork industry.
The Iowa-based National Pork Producers Council and the American Farm Bureau Federation sued, saying that while Californians consume 13% of the pork eaten in the United States, nearly 100% of it comes from hogs raised outside the state, mostly in the Midwest and North Carolina. The vast majority of sows, meanwhile, are not raised under conditions that would meet Proposition 12′s standards.
The Biden administration had urged the justices to side with pork producers, telling the court in written filings that Proposition 12 would be a “wholesale change in how pork is raised and marketed in this country” and that it has “thrown a giant wrench” into the nation’s pork market.
Pork producers argue that 72% of farmers use individual pens for sows that do not allow them to turn around and that even farmers who house sows in larger group pens do not provide the space California would require.
They also say that the way the pork market works, with cuts of meat from various producers being combined before sale, it is likely all pork would have to meet California standards, regardless of where it is sold. Complying with Proposition 12 could cost the industry $290 million to $350 million, they said.
NPPC statement on SCOTUS Opinion on California Proposition 12:
“We are very disappointed with the Supreme Court’s opinion. Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation. We are still evaluating the Court’s full opinion to understand all the implications. NPPC will continue to fight for our nation’s pork farmers and American families against misguided regulations.” — Scott Hays, NPPC president, and Missouri pork producer.
Sen. Chuck Grassley (R-Iowa) tweeted: “Disappointing news the Supreme Court upheld 9th circuit decision to allow California to regulate how pork reaches ur plate Prop 12 is an attack on your breakfast U can expect to pay more for bacon California’s liberal regulations impact pork producers nationwide… Iowa is the nation’s top pork producer California comes nowhere close yet its proposed regulations put restrictions on how pork producers in all other states raise hogs. 2day SCOTUS upholds California’s radical regs its HOGWASH”
Note: Some of the information comes from the Associated Press.