The question of what is moral when it comes to animal pen sizes and other pig production practices took center stage Oct. 11 with Supreme Court justices during oral arguments over California’s Proposition (Prop) 12 in the National Pork Producers Council’s (NPPC) appeal against the state of California.
Agriculture groups led by NPPC argued the dormant commerce clause of the Constitution prohibits such restrictions on out-of-state production practices as it relates to questions of morality.
Jeffrey A. Lamken, an attorney representing animal rights groups, told the court Prop 12 does not violate the commerce clause because it applies solely to pork sold in California.
“It prohibits the sale within California of pork that Californians find immoral and unsafe regardless of where it originates,” Lamken said during oral arguments. “Proposition 12 reflects a moral tradition that has been respected for millennia, that consuming meat that is a product of animal cruelty is itself immoral. California chose to rid its markets of some of those immoral products.”
Justice Clarence Thomas asked Lamken to define the term “immoral.”
“One of the things you might look at is looking at whether this is a traditional basis for regulation, if it’s something that distinguishes a product from being moral versus immoral,” Lamken said.
“Humanity has recognized for millennia that products can be immoral because they are a product of animal cruelty, in particular, food. … We’d also look at whether the market recognizes things as distinct products based on their morality. And the market here and regulators here distinguish inhumanely raised crated pork from humanely raised pork.”
Chief Justice John Roberts questioned the validity of Prop 12 based on the question of morality. In responding to Lamken, Roberts said what may be immoral to voters in California in terms of animal production practices isn’t necessarily that way for other states.
“I think people in some states, maybe the ones that produce a lot of pork—in Iowa or North Carolina or Indiana—may think there’s a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices,” Roberts said.
The chief justice added, “But, under your analysis, it’s California’s view of morality that prevails over the views of people in other states because of the market power that they have. So, I mean, isn’t that a consideration we should take into effect in analyzing this under the commerce clause? If, in fact, moral values are going to be given weight at least as significant as economic ones, why isn’t that something that we should be sensitive to under the commerce clause?”
Because Prop 12 focuses on pork products sold and consumed only in California, Lamken said the state’s voters’ decision carries the most weight.
“Yeah, but the reality—the reason they have this law—is, one, because they don’t have pork producers in California. So nobody is going to be hurt from that point of view,” Roberts said. “And, two, they want to affect conduct in other states. They want pork producers in Iowa and North Carolina and Indiana to have to produce pork the way they want them to, not necessarily even the way they want their own pork producers to produce, because they don’t have any pork producers or a de minimis amount.”
Timothy S. Bishop, an attorney representing NPPC, American Farm Bureau Federation, National Cattlemen’s Beef Association and others, said Prop 12 violates the commerce clause because it’s an “extraterritorial” regulation that places conditions on out-of-state farmers.
“California wants to change farming methods everywhere to ‘prevent animal cruelty by phasing out extreme methods of farm animal confinement,’” Bishop said. “That confinement occurs in other states. California imports 99.9% of its pork. … No other state makes its farmers house pigs the way that California does, and very few farmers do. They keep sows in individual pens during the vulnerable breeding period, and they provide less than 24 square feet of space in group pens.”
Bishop said farmers in Iowa, for example, aren’t aware of where their pork is ultimately sold. Pigs go to nurseries, finishers, then slaughterhouses where packers butcher them into parts that are hauled around the world in response to demand.
“The only safe course is to raise all pigs the California way, which is what we see buyers demanding, and the costs of doing that inhere in pork parts sold in places where buyers are unwilling to pay more to satisfy California’s policy preferences,” Bishop said.
“If Proposition 12 is lawful, New York can say that pigs have to have 26 feet of space and send inspectors into farms to police compliance as California does. Oregon can condition imports on workers being paid the minimum wage, and Texas can condition sales on the producer employing only lawful U.S. residents.”
Bishop said the commerce clause was intended to prevent balkanization of trade at the time of the Constitutional Convention, and it was intended to stop “interstate strife” among states.
The Biden administration filed a brief in the case supporting the pork industry position.
Edwin Kneedler, U.S. deputy solicitor general, said during oral arguments if Prop 12 is allowed to stand, then it would open the door to states passing laws aimed at a number of retaliatory efforts against other states—whether it’s for reasons of economics or differing political views.
“So, what we have here is basically an attempt by California to regulate what is happening in other states,” Kneedler said. “That is a proposition that, once unleashed, would be difficult to contain.”
Michael Mongan, an attorney representing the state of California, said voters in the state made the decision to pay higher prices to “serve their local interest.”
“The commerce clause does not prohibit that choice,” he said during oral arguments. “Prop 12 is not protectionist or discriminatory. … It doesn’t control prices in other states, and it doesn’t violate the general principle against regulating wholly extraterritorial commerce. … Sales restrictions often have upstream out-of-state effects, but they’re permissible as long as the condition on in-state sales focuses on the actual process for producing the goods sold in the regulating state.”
Mongan said Prop 12 is emphasizing how the market already treats the hog production process as a basis for differentiating between products.
“That’s why stores sell crate-free pork,” he said. “Prop 12 places no restrictions on how out-of-state businesses produce pork for sale in other states.”
Prop 12 prohibits the sale of pork not produced according to California’s production standards. Prop 12 applies to any uncooked pork sold in the state, regardless of whether it was raised in California.
Prop 12 would make it a criminal offense and civil violation to sell whole pork meat in California unless the pig it comes from is born to a sow that was housed within 24 square feet of space and in conditions that allow the sow to turn around without touching an enclosure.
Voters in the state passed Prop 12 in 2018, with nearly 63% of votes supporting it. — Todd Neeley, DTN staff reporter
