Vet: Pork Prop 12 Burden Claims False

LINCOLN, Neb. (DTN) -- A veterinarian told the Supreme Court in a brief filed on Thursday that the pork industry already has in place systems to allow producers across the country to easily comply with California's Proposition 12.

In briefs filed ahead of oral arguments before the court on Oct. 11, the National Pork Producers Council and others have argued the state's law violates the Commerce Clause of the Constitution by regulating pork producers in other states. Among the arguments made is compliance with the law would require producers to spend billions of dollars to modify hog facilities, all to comply with California's animal-welfare law.

In June, the Biden administration sided with the American Farm Bureau Federation and NPPC in the case and asked the court to throw out the law.

Voters in the state passed Proposition 12 in 2018 with nearly 63% of voters supporting it. The law forbids the sale of whole pork meat in California from hogs born of sows not housed in conformity with the law. Proposition 12 forbids sows from being confined in such a way that they cannot lie down, stand up, fully extend their limbs, or turn around without touching the sides of their stalls or other animals.

Veterinarian Leon Barringer, who formerly worked with the likes of Merck and Pfizer, told the court that industry claims it was "difficult" and also "not currently possible" to trace a cut of pork back to a particular sow housed in a particular way were "facially implausible."

Barringer filed the brief in support of the state of California in the case.

"The pork industry has engaged in tracing and segregation, to varying degrees of sophistication, since at least the early 1900s," the brief said.

"Segregating and tracing pork allows producers to comply with public health and food safety requirements, respond quickly to disease and foodborne illness outbreaks, meet consumer demand for pork produced in certain ways, and market their products effectively. Today, tracing and segregation are highly sophisticated and fully adopted in the industry.

"There is no plausible reason that existing tracing and segregation technology and practices cannot be used to segregate Prop 12-compliant pork from other pork in the pipeline, without any substantial burden to interstate commerce."

Barringer said existing tracing and segregation methods can be used to help Proposition 12 compliance.

"Ear tags are already used to identify individual pigs, their health history, feeding history, and interstate movement," he said in the brief.

"These tags already capture information relevant to specialty products like 'grass-fed' or 'hormone free,' as well as information about humane farming practices, like a pig's mother's housing, for 'crate-free' pork. Tracking Prop 12-compliant pork using RFID ear tags, and even other lower-tech tracing methods like tattoos, would be an exceedingly minor adjustment to the data already tracked by the pork industry and would not be a substantial burden on interstate commerce."

Barringer said many of the nation's largest packers already have indicated publicly that existing traceability systems will work.

For example, the brief said Hormel Foods confirmed it was working with its supply chain to implement internal processes for segregating pork that is Proposition 12 compliant.

"Perdue Farms' Sioux-Preme Packing Company 'has prepared its packing facilities to segregate California compliant pork to the extent any of its producers require packing for California bound pork after Jan. 1, 2022,'" the brief said.

"JBS, Premium Iowa Pork and Smithfield have 'demonstrated their commitment to production of Prop 12-compliant pork,' including through the use of segregation and tracing."

The brief said "numerous other pork producers and processors" have indicated their existing systems will work, including Tyson Foods.

NPPC and others have argued the Commerce Clause essentially forbids states from regulating economic activity in other states.

In July 2020, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of California's law, stating that although Proposition 12 would have "dramatic upstream effects and require pervasive changes to the pork industry nationwide," the court ruled its own precedent wouldn't allow the ag groups' case to continue.

The ag groups petitioned the Supreme Court in September 2021. The ag groups had asked the Ninth Circuit for an injunction to stop the law from taking effect.

At the end of January 2022, a California court halted the enforcement of Proposition 12, moving back enforcement of the animal-welfare law to six months after rules are finalized.

The Commerce Clause grants Congress power to regulate trade among states and restricts states from regulating commerce outside their borders, except for matters related to public health and safety.

As of Jan. 1, 2022, Proposition 12 prohibits the sale of pork not produced according to California's production standards. Proposition 12 applies to any uncooked pork sold in the state, regardless of whether it was raised in California.

Read Barringer's amicus brief here: https://www.supremecourt.gov/….

Read more on DTN:

"Biden Admin Asks SCOTUS to Toss Prop 12," https://www.dtnpf.com/….

"SCOTUS Oral Arguments Set on Prop 12," https://www.dtnpf.com/…

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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