Sow at a factory farm.

Biden Administration’s Legal Attack on Farm Animal Welfare

In the latest but perhaps most appalling subversion of animal welfare since assuming control of the executive branch, the Biden Administration has targeted the nation’s most important farm animal welfare law. In an amicus brief to the U.S. Supreme Court, the U.S. Department of Justice sided with the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (Farm Bureau) in their dubiously grounded efforts to overturn California’s Prop 12.

Approved with more than 62% of the vote in 2018, Prop 12 stipulates that any California farmer raising breeding sows, laying hens, and veal calves must provide minimum space allotments to the animals. The law also bars sale in California of pork, eggs, or veal coming from farms that rely on the most extreme confinement methods. If out-of-state farmers want their animal products to find shelf space in the large California market, they must play by the same rules that in-state farmers must observe. It’s a level playing field for all.

Pointing to the sales restrictions, the NPPC and its allies falsely argue that it is unconstitutional for California to exert this “extraterritorial” effect, alleging a crippling industry-wide economic impact. What NPPC attorneys omitted from their pleadings is widespread egg industry support for Prop 12, with many major producers having converted to cage-free housing. That industry had to travel a much longer path; the vast majority of the nation’s 330 million hens were in cages just 15 years ago, and at its height, perhaps just five percent of the pork industry’s animals were in cages two decades ago.

Biden Betrayal Ignores 20 Years of Progress Against Extreme Confinement

California’s Prop 12 was not a one-off political action. Voters passed a ban on gestation crates and battery cages a decade earlier. In fact, triggered by the success of that prior anti-confinement ballot measure, many of the biggest names in American food retail pledged to stop buying pork from operations that confine breeding sows, too — with many of the policies by statute to take effect in 2022.

  • McDonald’s announced in 2012 that it believes “gestation stalls are not a sustainable production system for the future.”
  • Kroger announced that “a gestation crate-free environment is more humane and that the pork industry should work toward gestation crate-free housing.”
  • Costco said it wants “all of the hogs throughout our pork supply chain to be housed in groups” and said “this transition should be accomplished no later than 2022.”

The Biden Administration seems to have missed the memo on this vibrant social movement. In seeking to wipe out the core of Prop 12, the Biden team is directly challenging the authority of states to enact anti-cruelty and food-safety standards that are entangled with commerce.  In fact, it is seeking to overturn laws that the Vice President, when she was California Attorney General, actively defended.

Mind you, Prop 12 isn’t some dizzyingly complex measure. It doesn’t attempt to regulate food and water requirements, air safety standards on factory farms, manure management, surgical procedures, breeding practices, or so many other aspects of production agriculture. The simple proposition behind Proposition 12 is, if you want pork or eggs in California, allow the animals to stride with their legs or to flap with their wings.

A Pig’s Litter of Economic Fallacies

Prop 12 probably didn’t require one California pig producer to have to change his or her housing system. California never has been one of the top pig-producing states, but in 2008, voters banned confinement, with farmers having until 2015 to make changes in their housing systems.

The obvious truth is, Prop 12 doesn’t require a single producer in Iowa, North Carolina, or any other state to make any housing changes. Farmers who keep sows in small pens have a vast marketplace for their products — from Hawaii to Texas to Florida to Japan and China. Just California and Massachusetts have laws restricting sales of their pork.

The markets in California and Massachusetts collectively represent just 10% of total sales of all U.S. pork producers.

What’s more, key industry sources have suggested that nearly 40% of breeding sows in the United States have allegedly been removed from gestation crates — with this shift propelled by 10 state bans on crates and 60 of the biggest food retailers explicitly signaling to the pork industry that every one of them will source only crate-free pork in the near future. The existing set of producers who don’t imprison sows in crates can supply the pork California needs with no or limited adjustments to their housing systems.

So really all this doomsday forecasting in its legal pleadings to the federal courts is a contrivance.

And one more bit of context: Prop 12’s pigs language relates just to gestation crates. The pork industry raises and kills 130 million pigs a year, and whatever the torments and terror they endure from farrow to finish, these “meat” pigs are not kept in narrow crates that inhibit them from even turning around. They are raised in pens, enduring plenty of misery but not the immobilizing confinement that many of the sows suffer. Prop 12 doesn’t apply to that form of more extensive housing.

Rather than an economic liability, Prop 12 is a market opportunity for more humane-minded farmers. It offers producers from other states the opportunity to change housing systems to access their market. But their participation in California’s retail economy is not needed by retailers there. Niman Ranch, Hormel, and even Tyson Foods, among others, have told California retailers they’ve got it under control and are already meeting the demand created by Prop 12.

The forecast of economic calamity is a knowing fiction. The economic disadvantage claims are grounded on all sorts of fraudulent assumptions and analyses.

NPPC and its allies still cannot accept that it got clobbered at the polls in two successive California ballot campaigns. It has dusted off its electioneering playbook and asked its lawyers to transform those talking points into legalese for the federal courts in 2022 — but it still reeks of the traditional blend of hyperbole and sham economics. Today the key audience is a cluster of judges and justices rather than 20 million California voters.

And results have been similar: they’ve lost in the court of public opinion with the ballot measures and more recently in court after court. In all, they’ve lost 10 straight cases since they took aim at California’s anti-confinement laws. Their Hail Mary is that a conservative court, with its apparent penchant to overturn prior legal precedent, turns things around for them when all other options have been exhausted.

Farm Lobby Just Doesn’t Want Anyone Telling Them How to Treat Animals

The factory farming lobby has long held disproportionate sway on Capitol Hill, spending hundreds of millions of dollars a year to influence government and to keep subsidies flowing. While readily taking federal money, it wants no accompanying duties in the form of federal legal standards for the care of animals at the center of its enterprise.

And they’ve got a go-along partner for the ages in the USDA. Agriculture Secretary Tom Vilsack stepped out of his role as CEO of a dairy industry export council to run the USDA a second time. He and other leaders personify the revolving-door concept between government and Big Ag, and they have long had the view that animal welfare is an obstruction, not a core value that the government must bring to life and enforce. Years go by at USDA without the Secretary announcing any significant initiatives related to animal welfare.

Big Ag’s design is clear: it wants no path for reform for their critics. It’s got the federal government in its hip pocket, and it wants no disruptive action by states that offer citizens the option to make law directly through plebiscites.

The NPPC is relying on an overstated business case to augment its legal case, but it’s forgotten one foundational business rule: “the customer is always right.” Californians told them loud and clear with Prop 12: “We don’t want your inhumanely produced pork, with its attendant risks of pathogens that may make us sick.”  When will the industry start listening and offer up products that come from rearing systems that customers can stomach?

The only players in their universe who get less respect than their conscious consumers are the animals under their charge. That’s a bitter irony, since animals are at the very center of their enterprise. It is the animals who are so foundational to the pig producers’ employment and their accumulation of wealth. There’d be no business without them. It is that much to ask that they have some rules of care and treat them with some kind measure of respect and mercy?

Photo Credit: Jo-Anne McArthur / Animal Equality / We Animals Media

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