October 2,  2020

US court to decide if Californian law that can ban pork sales is constitutional

The 9th Circuit Court of Appeals in the United States will decide whether a new law in California -- which will ban pork sales in the state if pigs are not raised under new restrictions -- violates the Commerce Clause.

The law, Proposition 12, will go into effect on January 1, 2022.

"In support of [Commerce Clause's] argument that Proposition 12 will impose substantial costs on producers, plaintiffs claim the pork industry will consolidate into larger farms and smaller farms will cease operations as a consequence of increased costs," US District Court Judge Thomas J. Whelan, who tossed the case in April, wrote.

"However, interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one  supplier to another."

While pork producers and consumers might be hurt economically, "that argument relates to the wisdom of the statute, not its burden on commerce," he continued. "The fact that changes to the physical farms and operations might impose financial burdens on the hog producers is not enough to establish a substantial burden on interstate commerce."

"Thus, plaintiffs have failed to demonstrate that there is a substantial burden on interstate commerce. As such, the court need not determine whether the benefits of the challenged law are illusory. The motions challenging the sufficiency of plaintiffs' substantial burden on interstate commerce claim for relief are granted and the second claim for relief is dismissed with leave to amend."

In the appeal to the 9th Circuit, the defendants continue to include Karen Ross, Secretary of the California Department of Food and Agriculture; Sonia Angell, California Director of Public Health; and Xavier Bacerra, Attorney General of California; all in their official capacities.

The American Farm Bureau and the National Pork Producers Council filed the appeal on June 18 and they've jointly filed opening written arguments seeking to have the appellate court strike down Proposition 12 for violating the US Constitution's Commerce Clause.

Proposition 12 mandates housing standards for sows raised for commercial breeding that are six months or older or pregnant. Holding a sow "in a cruel manner" is defined as one that prevents lying down, standing up or fulling extending the animal's limbs or freely turning around.

The provisions take effect after December 31, 2021,  thereafter requiring every pig get at least 24 square feet of usable floorspace.

California wants to apply the law to pork producers inside and outside of its borders if they sell product in the state.

The NPPC and the AFBF argue that by attempting to regulate businesses outside of its borders, California's Proposition 12 violates the Commerce Clause of the US Constitution.

In their opening  written arguments, both groups said Proposition 12 "imposes an enormous and costly burden on interstate commercial transactions, requiring wholesale rebuilding of tens of thousands of sow farm facilities and massive operational changes in how farmers care for their sows."

They also claimed the law "achieves no consumer health benefit at all - though that was touted to voters as one of its goals - and far exceeds any right of California to determine what its own citizens eat by regulating as a practical matter how pork is produced nationwide."

The NPPC said only about 1,500 sows are currently raised in California while its consumption amounts to 673,000 sows annually.

"If Californians want to eat only pork produced in a certain way, they can raise their own pork in state and insist on those conditions (and pay more for pork as a result), but the dormant Commerce Clause does not permit them to force their preferences on the industry nationwide and worldwide or, as also results from Proposition 12, on consumers outside California," the brief stated.

- Food Safety News