Pork Industry Thumbs Its Nose at American Consumers and Corporations in Asking Supreme Court to Nullify Measures Promoting Humane Treatment

Give Big Pork its due. It has chutzpah.

The National Pork Producers Council and its agribusiness allies have lost every anti-gestation crate ballot measure that qualified for statewide consideration in the 21^st century. They first lost in Florida in 2002, then in Arizona four years later, next in California in 2008 on Prop 2, in Massachusetts in 2016 on Amendment 3, and then a second time in California in 2018 when voters augmented animal protection standards in passing Prop 12. The most recently approved measures, Amendment 3 and Prop 12, stipulate that all pork sold in the states must come from farms that give the animals sufficient space, regardless of where the production occurs. Each ballot measure handed a double-digit loss for an industry that chose immobilization of animals as a routine housing strategy.

The pork industry sustained a major drubbing on Prop 2, losing by 26 points. A decade later, voters repeated the political lesson — delivering a nearly identical vote on Prop 12, which itself was modeled on Amendment 3 in Massachusetts. The industry’s defeat in the Bay State was even more crushing, where the vote was 78 percent to 22 percent — a spread of 56 percent. Such a vote is almost unheard of in a contested measure.

With the major retailers closely watching the extraordinarily lopsided electoral returns, there then came a cascade of corporate policy declarations opposing gestation crates. Just about every big-name brand in food retail either directly or implicitly stated their opposition to gestation crates, which don’t even allow the sows to turn around and where they are confined for as long as three years. 

• 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 added, “this transition should be accomplished no later than 2022.”

Failing at the Ballot and with Major Retailers, Industry Appeals to Courts

Rejected by voters and retailers, the National Pork Producers Council and other players in agribusiness took direct aim in the courts at Prop 2 and then Prop 12. By limiting its direct legal challenges to the California measures, the intimation to conservative judges was that a legal correction was required to rein in those wild Californians. California does happen to be the No. 1  agricultural state in the nation, and it’s the state’s biggest industry. But the pork industry’s false framing, characterizing the California election results as some sort of aberration, disregards the evidence of overwhelming opposition to gestation across the nation. Remember, it is corporations based in Arkansas, Illinois, Oklahoma, Tennessee, and other parts of the South and Midwest that say they’ve also had enough of gestation crates, as have majorities of Republican and Democrat voters in a range of red and blue states.  

Thus far, the federal courts have been a dead end for the industry as well. Over the last eight years, agribusiness groups have lost all 10 challenges to the two voter-approved laws, including their most recent cases against Prop 12 in federal district courts in California and in Iowa, and then before the U.S. Court of Appeals for the Ninth Circuit.

“It is undisputed that Proposition 12 is neither a price-control nor price-affirmation statute, as it neither dictates the price of pork products nor ties the price of pork products sold in California to out-of-state prices,” said appeals court Judge S. Ikuta, an appointee of George W. Bush, writing for the three-judge panel.

“Even though the council’s complaint plausibly alleges that Proposition 12 has an indirect ‘practical effect’ on how pork is produced and sold outside California, we have rejected the argument that such upstream effects violate the dormant Commerce Clause,” she opined. “Under our precedent, state laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects.”

Pork Industry’s Hail Mary Pass to U.S. Supreme Court 

So, let’s be clear on what the pork industry is asking here.

Twenty-two million people voted in favor of ballot measures banning gestation crates. Sixty major food retailers — the biggest names in American food that sell 90 percent of the food that Americans eat — have issued public statements against gestation-crate confinement of sows.  Ten of 10 courts ruled that the two California ballot measures were a proper exercise of state authority.

And now the pork industry wants at least five justices to unwind all of that.

Chutzpah.

And a bunch of hogwash in terms of legal arguments.

Under our U.S. Constitution, the states have governing rights enshrined in the 10^th Amendment. And with the pork industry thwarting any federal animal welfare standards, and meaningful food-safety standards, California and other states have acted with intentionality. The important policies they’ve adopted are part of a larger cultural and economic movement to provide better treatment for animals used by a wide range of industries.

Just take these indicators:

Horse slaughter. In 1990, there were 350,000 American horses sent to slaughter for human consumption.  As of last year, that number is down to 23,000.

Cosmetic testing on animals. Hundreds of companies have stopped testing cosmetics on animals and use a “No Animal Testing” symbol on packaging to assure consumers that the products are cruelty free.

Commercial tiger cub petting. A decade ago, there were more than 60 commercial cub-petting operations at roadside zoos, churning out tigers that then either ended up in the pet trade or in some other dangerous setting.  Now there are just two, and we are poised to pass the Big Cat Public Safety Act to ban them entirely.

Greyhound racing. A generation ago, there were more than 60 greyhound racing tracks in the United States. By the end of 2022, there will be just two operations.

Wild animals in circuses. Ringling Brothers closed shop in 2017 after years of controversy. Now there is just a set of small-time ragtag traveling zoos that use animals.

Cockfighting. In the late 1990s, there were 11 states and territories that had legal cockfighting and another 20 or so states that treated staged fighting as a misdemeanor.  Now it’s a federal felony to engage in cockfighting and a wide range of associated fighting activities in every part of the United States.

Fur. Just about every major fashion designer and clothing retailer has stopped working with or selling fur, resulting in virtually no fur at all sold in the United States or Europe any longer.

The Biden Administration seems to have missed the memo on this vibrant social movement powered by the evolving attitudes of Americans. 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.

Fortunately, 14 Democrat state attorneys general, led by these elected officials in the major pig-producing states of Illinois and Michigan, have filed pleadings in favor of California’s position in defending the law.  

But damage is already being done. The pork industry’s move is already stymieing implementation of Prop 12 and also Amendment 3, with Massachusetts authorities announcing earlier this week that they’ll wait for the Supreme Court’s review of Prop 12 before enforcing their law.

As Animal Wellness Action and the Center for a Humane Economy noted in their pleading to the Court, the pork industry is no monolith. Major pork producers, including Tyson Food, Clemens Food Group, Hormel, Niman Ranch, and others already have sufficient capacity to meet California’s needs, vitiating the exaggerated claim from the pork industry that there will be a “pork crisis” in the United States if the California law goes into effect.

Indeed, Elizabeth Cox, a veterinarian with the Animal Care Program at the California Department of Food and Agriculture, spent the past year with a team visiting an array of hog producers across the country, including some who contract with Hormel, Smithfield, JBS, and Premium Iowa Pork. The Animal Care Program team visited farms with crate-free and open-pen housing systems. Producers are excited about the market opportunities created by Prop 12, Dr. Cox explained in a July 2022 report: “Several of the farmers and processors who I visited told me that tracing pigs throughout the pig production cycle is relatively straightforward because farmers and processors have already been tracing product from sow farm to end-product for years in order to market and sell premium pork products (such as “crate-free” pork).”

Two agricultural veterinarians with the Center filed their own expert amici brief that lays bare the false claims of the industry and the veterinarians who work for it and undergirds the concerns of Californians about the public-health consequences of factory farms. “The major zoonotic risks from producing and consuming industrial pork are zoonotic foodborne bacteria, especially Salmonella pork contamination; antibiotic-resistant bacteria and antibiotic-resistant genes in live pigs; and contaminants in pathogenic and commensal bacteria driven by swine industry antimicrobial usage,” wrote Jim Keen, D.V.M., Ph.D., and Thomas Pool, D.V.M., M.P.H. “These environments also foster emerging, epidemic or pandemic zoonotic swine pathogens, especially swine influenza virus.”

Matthew Scully, a longtime conservative voice and former senior speechwriter for President George W. Bush, wrote a moral, political, and legal critique of the pork industry’s argument in this month’s National Review. Scully astutely notes that one-fifth of states, both conservative and liberal, have gestation crate bans and reminded readers of the value of the free market and the importance of states’ rights: “[W]hen a multibillion-dollar industry has so offended the moral standards of so many citizens that they take corrective action at the ballot box, why is that a violation of constitutional order, instead of just the industry’s own self-imposed commercial disadvantage?”

The only players in the pork industry’s universe who get less respect than its conscious consumers are the animals under their charge. That’s a bitter irony, since animals are at the very center of the enterprise. It is the animals who are so foundational to the pig producers’ employment and their accumulation of wealth. There’d be no business, no jobs, no output without them. Is it that much to ask that pork producers observe some minimal standards of care and deliver some measure of respect and mercy for the animals conscripted to give every ounce of their life to them?