Rows of sows live confined to gestation crates at an industrial pig farm.

The Supreme Court Takes Up Prop 12 – and the Future of Factory Farming

Four years ago, 12,051,139 Californians cast ballots on Proposition 12, a measure formulated to improve the living conditions of some species of farm animals. In a landslide vote, 63 percent of them said “YES” to more mercy in our food system.

Next Tuesday, nine justices of the Supreme Court of the United States will take a vote of their own, judging whether that law — and perhaps dozens of other state laws that impose some limits on commerce — are constitutionally sound.

While Prop 12 addresses confinement of veal calves and egg-laying hens, it’s the immobilizing of breeding sows in gestation crates that is the central question on the docket on October 11. The National Pork Producers Council (NPPC) and the American Farm Bureau Federation initiated the legal proceedings. But there’s been a pile-up of pleadings in the case by a wide range of stakeholders. The Center for a Humane Economy, Animal Wellness Action and its allies filed a very carefully constructed pleading in NPPC v. Ross, as did, in a separate offering, two of our staff veterinarians with deep roots in agriculture.

If the justices pay careful attention to the lapidary arguments made not only by our attorneys and veterinarians and 27 other amicus presenters, they’ll reject the NPPC challenge. They also must pay close attention to the long roster of federal judges who have turned away 10 prior federal court cases initiated by the NPPC and its allies, 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.

Animals Built to Move Should Be Allowed to Move

Then there are the common-sense instincts and the core values of American consumers and voters. NPPC and its agribusiness allies have lost every anti-gestation crate ballot measure that qualified for statewide consideration in the 21st Century. Voters voted “YES” to ban gestation crates 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 California and Massachusetts must come from farms that give the animals sufficient space, regardless of where the production occurs.

These were not close outcomes in the states. The pork industry lost the vote on Prop 2 by 26 points. A decade later, voters repeated the political lesson — delivering a nearly identical vote on Prop 12. 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.

Remember, these voters and the pork industry consumers are one and the same. The industry readily takes their currency at check-out stands and in restaurants, but apparently regards their votes as some sort of foolish civic spasm. What part of “YES” to ban the crates — among tens of millions of voters in states across our nation — does the pork industry not understand?

With the major retailers closely watching the extraordinarily lopsided electoral returns, there 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.
• 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.”

The pork industry characterizes the California election results as some kind of radical social experiment rather than the expression of a simple moral instinct to let the animals stand up and turn around, and it disregards the fact that concerns about humane treatment are not isolated to the nation’s biggest and most diverse state, as Washington Post columnist Kathleen Parker wrote in her column on the legal mudfight. Remember, corporations based in Arkansas, Illinois, Oklahoma, Tennessee, and other parts of the South and Midwest 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.

Besides customers, the only beings that get less respect from the pork industry are the animals under its 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?

Dangerously Applying a Legal Doctrine to Subvert States’ Rights

The industry argues that Prop 12’s constitutional violation is its in-state restriction on selling pork from sows kept in crates. Citing the Dormant Commerce Clause — which cannot actually be found in the U.S. Constitution — the pork industry lawyers argue Prop 12 has an extraterritorial effect, imposing Californians’ values on pig producers clustered in North Carolina, Iowa and other states in the Midwest.

But gestation-crate producers are not obliged to sell their products to California. They choose to sell there.

And given the vast markets available to them elsewhere, the old-school producers view, at least for the moment, the world as their oyster. They can sell to 48 states, since it’s only California and Massachusetts with laws restricting the sale of pork. What’s more, nearly one-third of U.S.-produced pork goes to China, Japan, South Korea, Mexico, and dozens of other nations throughout the world. In fact, the biggest U.S. pork producer, Smithfield Foods, is owned by a Chinese conglomerate under the thumb of the Communist government there, and that tells us all we need to know about where it wants products to flow. (Ironically, Smithfield, before its sale to the Chinese, pledged in 2007 to eliminate its use of gestation crates for a million sows under its control by 2017, and that’s a big chunk of 34 percent of sows in the U.S. who are not kept in gestation crates during their full pregnancy terms.)

Californians consume well less than 10 percent of all U.S.-produced pork. And 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.

Elizabeth Cox, a veterinarian with the California Department of Food and Agriculture, spent the past year with a team visiting hog producers across the country and assessing their ability to meet Prop 12 standards. She reported that production in crate-free and open-pen housing systems are surging and that these producers are excited about selling to California’s market. “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),” Dr. Cox explained in a July 2022 report.

But let’s remember, the Justices are not to make a judgment about the morality of immobilizing animals as a routine production practice. Their charge is to determine if California is fairly regulating commerce within its state and not acting in some sort of protectionist manner. And here, so far, the lower Courts have been clear.

“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 of the U.S. Court of Appeals for the Ninth Circuit in rejecting NPPC’s challenge.

“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.”

Under the U.S. Constitution, the states have governing rights enshrined in the 10th 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.

It’s long past time that pork industry magnates align their production practices with the values of the American public. That requires disassembling the old, inhumane systems — as communities have done with old, asbestos-ridden buildings and other inherent safety problems — and building in their place newer, more modern, more humane systems. California has stayed in its legal lane to advance anti-cruelty and food safety standards in its state and the Court should allow that sensible, humane, and constitutional exercise of state authority to stand.

Photo: Rows of sows live confined to gestation crates at industrial pig farm in Canada. Jo-Anne McArthur / We Animals Media

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