Pork industry takes fight over California law to U.S. Supreme Court

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10/10/2022 11:00

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      Industry groups appeal ruling that backed California law
    

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      At issue is Commerce Clause U.S. constitutional provision
    

  
    By Leah Douglas
       WASHINGTON, Oct 10 (Reuters) - The U.S. Supreme Court is
set to hear arguments on Tuesday in an industry challenge to the
constitutionality of a California animal welfare law in a case
that could undermine the power of states to regulate a range of
issues within their own borders.
    The National Pork Producers Council and the American Farm
Bureau Federation are appealing a lower court's decision to
throw out their lawsuit seeking to invalidate a 2018 ballot
initiative passed by voters barring sales in California of pork,
veal and eggs from animals whose confinement failed to meet
minimum space requirements.
    The pork industry has defended the size of the cages used at
pig farms as humane and necessary for animal safety. Animal
rights groups have said some pork producers confine mother pigs
in cages so small the animals cannot turn around for most of
their lives.
    The industry groups have argued that the measure, called
Proposition 12, violates a provision of the U.S. Constitution
known as the Commerce Clause, which gives Congress the power to
regulate interstate commerce, by requiring out-of-state
producers to comply or face a California sales ban. A legal
doctrine called the "dormant" Commerce Clause bars states from
passing laws discriminating against commerce in other states.
    Proposition 12 violates that doctrine, the pork producers
argued in a legal filing, because it would increase costs for
pig farmers, nearly all of whom are located outside California.
While being the most populous U.S. state and an important
market, California produces just 0.1% of the nation's pork.
    "If you're looking for an example of an unconstitutional
law, this is it," said Michael Formica, chief legal strategist
for the pork producers. 
    Proponents of the law disagree, saying California has the
right to set standards for products sold to its consumers
regardless of where these are produced.
    "There's a long history of state laws that have to do with
protecting public health, food safety and animal welfare," said
Josh Balk, vice president of farm animal protection at the
Humane Society of the United States, which led the campaign to
pass Proposition 12 and is a party in the case. "Producers have
a choice if they want to sell products within the state's
borders that meet that standard."
    The San Francisco-based 9th U.S. Circuit Court of Appeals
affirmed a district court's decision to throw out the lawsuit,
finding no Commerce Clause violation.
    President Joe Biden's administration has sided with the pork
producers, saying in a Supreme Court brief that states cannot
ban products "that pose no threat to public health or safety
based on philosophical objections."
    'DRAMATIC EXPANSION'
    A ruling by the Supreme Court, which has a 6-3 conservative
majority, favoring the pork industry would have major
implications for Commerce Clause interpretation, according to
some legal experts.
    The industry is "asking for a dramatic expansion of the
doctrine in a way that would call into question all kinds of
state laws," lawyer Brian Frazelle of the Constitutional
Accountability Center liberal advocacy group, which filed a
brief in the case on behalf of law professors, told reporters in
a conference call.
        Sixteen liberal U.S. senators, including both of
California's, had urged Biden's administration to back the law.
They wrote that a ruling endorsing the industry's Commerce
Clause position "could allow large, multi-state corporations to
evade numerous state laws that focus on harms to their
constituents, including those addressing wildlife trafficking,
climate change, renewable energy, stolen property trafficking
and labor abuses."
    A group of 20 primarily Republican-governed states led by
Indiana said in a brief that upholding Proposition 12 would
undermine state sovereignty. Another group of 14 primarily
Democratic-governed states and the District of Columbia, led by
Illinois, said overturning it would undermine state authority to
legislate.
    A ruling favoring pork producers could inspire more industry
challenges to state regulations, according to Nandan Joshi, an
attorney with the consumer advocacy group Public Citizen, which
filed a brief supporting California. 
    Pressed by animal welfare and consumer groups, many food and
restaurant companies already have committed to phasing out small
confinements for pigs and to buying or producing cage-free eggs.
    Proposition 12, passed with the support of about 63% of
California voters, set the required space for breeding pigs, or
sows, at 24 square feet (2.2 square meters). The current
industry standard is between 14 and 20 square feet (1.3 to 1.9
square meters), according to a 2021 report from Dutch banking
and financial services company Rabobank. 
    The measure also increased the space required to house
egg-laying hens and calves raised for veal.
    Top U.S. pork producer Smithfield Foods, owned by Chinese
company WH Group Ltd  0288.HK , said last year it plans to
comply with the law. Kansas-based Seaboard Foods, the No. 2 U.S.
pork producer, said this year it is was converting some of its
production to achieve compliance.
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U.S. pork producer to resume shipments to California after farm
animal law delayed     urn:newsml:reuters.com:*:nL1N2UJ202
California court delays enforcement of part of pig welfare law  
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 (Reporting by Leah Douglas; Editing by Will Dunham)
 ((Leah.Douglas@thomsonreuters.com))