Proposition 12 is having a ripple effect well beyond the borders of California
The Ninth Circuit Court of Appeals dealt a blow to animal agriculture last week when it upheld a California ballot initiative creating new regulations on animal housing. The North American Meat Institute filed the lawsuit attempting to stop enforcement of Proposition 12. NAMI requested the trial court enter an injunction stopping the new law from going into effect, but that request was denied. So, for now, Proposition 12 is alive and well.
Here’s what it all means.
California’s Proposition 12
California is notorious for its extreme and ridiculous ballot initiatives (remember Proposition 65?). But unlike others, Proposition 12 has real consequences for farmers and animal agriculture.
The Prevention of Cruelty to Farm Animals Act, the proposition’s official name, passed in 2018 with 63 percent of the vote. The law imposes new standards for animal housing. According to the California Legislative Analyst’s Office, the measure creates minimum requirements to provide more space for veal calves, breeding pigs, and egg-laying hens. By 2020, the law requires farmers to give egg-laying hens at least one foot of floor space, and to completely eliminate cages by 2022. Farmers must now give veal calves 43 square feet and sows 24 feet of space.
But the Act’s biggest feature is that it applies to anyone selling these animals in California. So a California farmer is bound by the requirements just as much as a Michigan, Florida, or Massachusetts farmer. If you don’t follow the law, you’re not allowed to sell your products in the state.
North American Meat Institute’s Lawsuit
NAMI filed its lawsuit in October 2019. It argued that Proposition 12 violates the Constitution’s Commerce Clause. How? Because it essentially imposes restrictions on farmers across the United States. All farmers who want to sell products in California are subject to these restrictions. It doesn’t matter where those products originate or whether the farmers adhere to another state’s laws. California law is now a national law.
The concept is known as the Dormant Commerce Clause. I’ll spare you the nitty gritty, but give you a very high-level overview (because, quite frankly, I’m not a constitutional scholar). The Commerce Clause says that Congress shall have the power “to regulate Commerce with foreign Nations, and among the several States.” Essentially it protects free trade among the states. The dormant aspect happens when one state imposes “unduly burdensome” regulations on commerce from another state. The Supreme Court has found that these laws are unconstitutional even where they don’t discriminate between interstate and intrastate businesses.
So the argument is that these laws are so unduly burdensome, they hinder interstate commerce. Farmers in all states are required to implement costly production practices to comply. If they don’t, they can’t engage in commerce in California.
Unfortunately, these Dormant Commerce Clause arguments haven’t been very successful in California’s Ninth Circuit. Similar lawsuits were filed against other ballot initiatives in California, but the courts didn’t buy it. And now the courts have declined to strike down these laws again.
So is this the last word?
The Ninth Circuit’s ruling isn’t the last straw, though I’m not optimistic about the other cases either. The National Pork Producers Council and American Farm Bureau Federation have also filed a lawsuit arguing Proposition 12 is unconstitutional. That case is still pending.
NAMI will also have an opportunity to appeal its case to the Supreme Court. But SCOTUS is unlikely to accept the case. It’s hard to get in front of SCOTU anyway. And it has declined to weigh in on prior ballot proposals with similar arguments and rulings. So I would be very surprised if NAMI’s lawsuit is granted a review. That being said, there are some new justices on the court, so maybe they’ll be interested.
It’s a tough situation for farmers. California represents 15 percent of the pork market. So not complying with the laws means cutting out a large chunk of the market. But on the other hand, these laws are costly, burdensome, and not always consistent with good animal husbandry. Unfortunately, these laws are likely here to stay.
Amanda Zaluckyj blogs under the name The Farmer’s Daughter USA. Her goal is to promote farmers and tackle the misinformation swirling around the U.S. food industry.
