David G. Savage
The Supreme Court on Tuesday will hear the pork industry’s challenge to a California animal welfare law that would forbid confining breeding pigs in narrow metal cages for most of their lives.
At issue are two broad questions: Can one state can enforce regulations within its borders that will force businesses in other states to change their practices? And can voters insist on standards of morality and decency that include the humane treatment of animals?
In 2018, 63% of California voters approved Proposition 12, a ballot measure to prohibit the sale of eggs or meat that originate from the extreme confinement of egg-laying hens, breeding pigs or calves raised for veal. The law was due to take full effect this year.
While some of the largest meat packers, including Hormel and Tyson, said they could comply, the National Pork Producers Council sued, alleging the law is unconstitutional because it would require farmers in the Midwest and North Carolina to change how they raise and confine their breeding pigs.
California produces less than 1% of the pork sold in the state, the producers told the court, but “Prop. 12 will transform the pork industry nationwide.”
To comply with the California law, breeding pigs would have to be given larger pens that would allow them to stand and turn around, or they could be confined in an open area with other pigs. The producers said those changes would increase their costs by 9%.
“The practical effect of Prop. 12 is that commercial activity outside of California will need to comply with California’s regulations, and therefore [it] is an extraterritorial regulation of the $26-billion interstate pork market….Consumers nationwide will pay for California’s preferred sow-housing methods,” they told the court.
The pork producers lost before a federal judge in San Diego and the 9th Circuit Court of Appeals, which said they had no claim of a constitutional violation. But in March, the Supreme Court agreed to hear the industry’s appeal, and the Biden administration joined the case on the side of the pork producers.
“California has no legitimate interest in the housing conditions of out-of-state animals,” Solicitor Gen. Elizabeth B. Prelogar said. “States may not otherwise regulate out-of-state entities by banning products that pose no threat to public health or safety based on philosophical objections to out-of-state production methods or public policies that have no impact in the regulating state.”
In defense of the law, the state’s attorneys said the law regulates what happens inside California.
It “only restricts the products that businesses choose to sell within California’s borders,” they said. “In approving Prop. 12, California voters chose to prohibit the in-state sale of pork products that they found to be immoral and potentially dangerous to human health.”
Attorneys for California also contended that the pork producers challenging the law do not represent the entire industry, noting that three years ago, “nearly a third of the nation’s pork industry had converted to sow breeding facilities to allow for group housing” where breeding pigs may move around freely.
“Pork produced this way may be marketed as ‘cratefree’ pursuant to USDA regulations” and can be separated from other pork products, they said.
The Constitution says Congress may “regulate commerce…among the several states.” Congress has not regulated the confinement of breeding pigs, but the court has struck down state laws that seek to protect businesses from out-of-state competition. By contrast, in this case, National Pork Producers vs. Ross, the court will decide whether a state law is unconstitutional because it will have a strong regulatory effect in other states.
The Humane Society of the United States and several animal-protection groups objected to the Justice Department’s contention that Californians have no “legitimate” interest in preventing cruelty to animals.
“The citizens of California do not want to be complicit in patronizing or condoning the abuse and cruel treatment of these intelligent, social animals,” wrote Katherine A. Meyer, director of the Harvard Animal Law and Policy Clinic.
She noted that in the Dobbs vs. Jackson Women’s Health Organization decision that overturned Roe vs. Wade, the court said that questions of “profound moral and social important” are “unequivocally” left to the people to decide. If so, she said, “Californians should be able to decide not to be complicit in such blatant cruelty to animals with respect to the food products sold in their state.”
This story originally appeared in Los Angeles Times.
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