December 7, 2021

Lawsuit targets California, US' inaction on Proposition 12

In an effort to ensure the proper implementation of California's Proposition 12 – with key provisions taking effect in the US state in January 2022 that restrict the sale of pork and eggs that come from confined breeding sows and laying hens – key backers of the measure sued the California Department of Food and Agriculture (CDFA) in the Superior Court in Sacramento. 

CDFA recently revised and submitted for public comment proposed regulations to implement Proposition 12, which, beginning January 1, 2022, will prohibit the sale of pork from hogs born to sows raised in housing that does not comply with California's highly prescriptive standards. It applies to any uncooked pork sold in the state, whether produced in California or outside its borders.

Animal Wellness Action, Animal Wellness Foundation, the Center for a Humane Economy, and Americans for Family Farmers filed suit against CDFA challenging regulations the agency proposed to implement the law. The groups said, while Proposition 12 was enacted to address animal cruelty, environmental pollution and public health concerns, "CDFA's proposed regulations conflict with the legislation implementing Proposition 12 by failing to account for the full range of harmful impacts of industrialised systems of animal confinement that have long dominated US meat and egg production."

Meanwhile, the possible defeat of California's Proposition 12 is still possible before the US Supreme Court. Indiana and its attorney general asked the US Supreme Court along with 19 other US states to support the National Pork Producers and American Farm Bureau Federation farmers' challenge to the implementation of the law.

California has been ordered by the high court to respond to National Pork Producers Council's (NPPC) lawsuit by December 8. A decision from the Supreme Court on whether to accept the case for hearing likely will be made in early January.

In initial statements ahead of proposing the implementing regulations for Prop. 12, CDFA admitted the initiative will have no effect on food safety and actually will increase the mortality rate for sows subject to it.

Beginning January 1, 2022, Prop. 12 will prohibit the sale of pork from sows raised in pens that do not comply with California's housing standards of 24 square feet of space and conditions that allow the sow to turn around freely without touching the enclosure. Nearly all pork currently produced in the United States fails to meet California's standards. Californians account for 13% of the nation's pork consumption and import 99.87% of pork consumed.

Industry estimates for converting sow barns or building new ones to meet the Prop. 12 standards are in the billions of dollars, with consumers bearing the ultimate cost through higher pork prices. Across the country, 65,000 farmers raise 125 million hogs per year with gross sales of US$26 billion. NPPC and American Farm Bureau Federation (AFBF) alleged that compliance will increase production costs by over US$13 per pig, a 9.2% cost increase at the farm level.

Increased production costs will flow through to every market hog born to every sow raised in compliance with Prop. 12, and to every cut of meat from each of those market hogs—regardless of where that meat is sold. An estimated 87% of pork is sold outside of California.

Despite a requirement of the originally voter-approved standard, CDFA has not released final regulations for implementation.

"The California Department of Food and Agriculture has a legal responsibility to propose and enact regulations that conform to all the terms of Proposition 12," stated Wayne Pacelle, president of Animal Wellness Action. "With its proposed regulations, the agency has embraced the false framing from agribusiness groups and omitted the public health threats caused by confining the animals in cages and crates barely larger than their bodies. It is these overcrowded, high-stress conditions that create dangerous environments for pathogens to emerge and even mutate."

The animal welfare groups stated that CDFA proposed regulations that declare that the inhumane confinement practices that Prop. 12 was intended to address do not "directly impact human health and welfare of California residents, worker safety or the state's environment."

NPPC said it will submit comments on the revised regulations by the conclusion of a 15-day comment period. In comments on earlier proposed regulations, NPPC pointed out that the rules would require unworkable annual certification of hog farmers' compliance with the Prop. 12 requirements; create a complex accreditation process for entities allowed to conduct such certifications; impose burdensome and unnecessary record keeping requirements on farmers, meat packers and others throughout the pork supply chain; and impose unnecessary and problematic labeling requirements for pork.

NPPC has requested that the effective date for Prop. 12 be delayed at least two years from the date regulations are finally promulgated.

- Farm Progress