The Pork Industry’s Attack on State Animal Welfare Laws

While most Americans savor the taste and smell of bacon and eggs, they often avert their gaze after a glimpse at the way sows and hens are treated in industrialized agriculture.

The taste buds say “yes” when it comes to the meat of fast-food outlets but the eyes say “no” when it comes to the means of factory-farm operations.   

It’s one of our most common forms of sensory conflict. 

Driven by desire and appetite and with the factory farm conveniently off in the distance, most consumers do indeed vote with their dollars in the marketplace for conventionally produced animal products. But when presented, for example, with the chance to establish policy through a ballot measure to ban extreme confinement of farm animals and to give the animals a chance to move, they’re all in.

In a society increasingly alert to the mistreatment of animals, with social media platforms and YouTube videos exposing us to the realities of modern meat production, most everybody knows that there’s a moral problem with the systemic mistreatment of animals on factory farms. And the stickiest mental images for us may be the rows of gestation crates, with forlorn breeding sows immobilized in two-foot-by-seven foot cages barely larger than their bodies, and the battery cages, which cram six or eight hens in a cage so tightly that not one of them can lift a wing.

Voters pass ballot measures to ban confinement

In the 21st century, there have been a series of anti-confinement ballot measures voted on in some of the biggest states in the nation.  Voters approved every one of them by landslide margins – from Arizona and California to Florida and Massachusetts.  
California (Prop 12 in 2018) and Massachusetts (Amendment 3 in 2016) voters took the most dramatic action, not just forbidding exceedingly inhumane production practices for in-state farms, but establishing they won’t allow the sale of pork or eggs from any farm with caged sows or hens. In short, hog factories in Iowa or North Carolina must provide the animals room to turn around if they want to sell the meat in California. So come January 2022 – just more than four months ahead – all pork and eggs sold to the 50 million consumers in these two states must be drawn from farms that don’t rely on crates or cages. Those states represent a little more than 15 percent of U.S. demand.

Those state policies are neatly aligned with the pledges of most major American food retailers, which have gotten in on the act in the last decade.  McDonald’s, Costco, Safeway, and just about every big-name brand in American food retail announced some years ago that they’d source pork starting from farms that disallow gestation crates, with most of the corporate pledges to take effect in 2022. These corporate policies probably account for more than 80 percent of sales of pork in the nation.

Smithfield Foods, the nation’s largest pig producer, announced an anti-gestation crate policy way back in 2007, with a 10-year phase-in, and Hormel, Cargill, and other big producers have made similar commitments. But a herd of other pig-producing companies has stubbornly refused to convert their facilities and break down the crates. They are holding fast to their plan to immobilize the animals as their standard means of production, and consumers and retail customers be damned. 

Pork Industry Obstinacy

The National Pork Producers Council and other major trade agribusiness trade associations are activists on the issue. They have sued the state of California multiple times and argued that the restrictions on sales of pork in California from other states violate the dormant Commerce Clause. But the series of cases they and their proxies have initiated have landed with a thud. They’ve lost a half dozen cases in the federal district and appellate courts.

In two latest cases, the U.S. Court of Appeals for the Ninth Circuit rejected a challenge by the North American Meat Institute to California’s Prop 12 in October 2020, and then at the end of July of this year, the same court turned away a challenge from the National Pork Producers Council and the American Farm Bureau. “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,” noted Judge Sandra Ikuta, speaking for the three-judge panel that affirmed a District Court ruling.  So far, the U.S. Supreme Court has decided so far not to grant any additional review.

With the courts turning away their constitutional challenges, and doing so emphatically and unanimously, the industry’s latest maneuver is to appeal to Congress. They have reprised the infamous “King amendment,” named for former Congressman Steve King of Iowa, to forbid any state to restrict the means of agricultural production. Their bill, the Exposing Agricultural Trade Suppression (EATS) Act, would not only forbid state or local animal welfare standards, but also standards to stop the use of dangerous pesticides, to impose worker safety standards, to prevent manure lagoons from spilling into rivers and streams, or any other rule or restriction of any kind on agricultural production. Congress, which has never passed any animal welfare standards for animals on farms, would be the single, all-powerful federal authority when it comes to agriculture policy.

If past is prologue, the EATS Act should go down in flames, as did the King amendment. Lawmakers can demagogue all they want about their view that California has done too far on farm policy, but their proposal sweeps broadly and into every state, disempowering state and local legislators everywhere on the important issue of agriculture and food policy in America.

And that means they must have a third act – with their likely frustrations in the courts and in Congress. Their third play, already in motion to a degree, is to bring about a “supply crisis” – to try to show that California and Massachusetts laws are unworkable in practice and to say there’s just not enough gestation-crate-free pork, causing prices to spike and creating a sort of food riot.

But really, when there are so many foods available to customers – whether meat or plant-based – are people really going to get into a lather that they won’t have enough cheap bacon?

The pork industry has long fought with the beef and chicken industries for market share. This brinksmanship – threatening to deny sufficient supply to food retailers in California and Massachusetts – seems like a terrible gamble, giving customers a chance to swap out their pork purchases for more beef or chicken or plant-based foods. If they switch, will they ever come back, and will the pork industry deliver a major self-inflicted wound, with its pork products in its own commercial freezers instead of in Americans’ refrigerators?

The pork industry — much more so than the egg industry, which is doing far better in converting its facilities – just doesn’t get it on animal welfare. They think their lawyers, lobbyists, and truck drivers are going to win the day. But so far, their strategies seem to bring more risks than rewards. What’s really needed is more customer service. They need to start building an agriculture sector aligned with the values of the American public. That requires disassembling the old, inhumane systems — like communities do with old buildings with asbestos and other inherent safety problems — and build in their place newer, more modern, more humane systems. In the end, when it comes to a business grounded on the use of animals, they have to start thinking about the animals and their most basic well-being.