Sizing Up Prop 12 SCOTUS Case Arguments

LINCOLN, Neb. (DTN) -- When attorneys for both sides in the National Pork Producers Council's challenge of California's Proposition 12 make their oral arguments before the Supreme Court on Tuesday, the court will be considering whether the Constitution allows the state to force hog producers outside its borders to raise their animals in certain conditions.

NPPC has argued the law passed by California voters violates the Dormant Commerce Clause as it relates to interstate commerce, since California already imports 99.8% of its pork from producers in other states.

The Supreme Court will be tasked with deciding whether California is directly regulating economic activity beyond its borders.

Brian Frazelle, senior appellate counsel for the Constitutional Accountability Center, said during a press call Thursday he believes NPPC erred in challenging Proposition 12 as it relates to the Dormant Commerce Clause.

"Existing precedent regarding the Dormant Commerce Clause doesn't support their arguments," he said.

"And so that is why they are asking the court essentially to change the standards that it has used for a long time when it evaluates state laws that are not protectionist or discriminatory. It's pretty obvious from the briefing that they were asking for a modification of the Dormant Commerce Clause doctrine."

Frazelle filed a brief in support of California's law, on behalf of the Constitutional Accountability Center.

The founders adopted the Commerce Clause to prevent states from engaging in economic protectionism and from discriminating against the commerce in other states, Frazelle said.

The framers were concerned state protectionism was causing a Constitutional crisis, when each state set its own commercial policies and the federal government had no power to regulate commerce.

"What happened very quickly is that the states began competing with each other for trade and associated tax revenue," Frazelle said.

"And they started engaging in trade wars with each other, with many states passing tariffs and other restrictions that specifically targeted other states, which led those states to retaliate and so forth. And these conflicts grew."

Veterinarian Leon Barringer said Proposition 12 isn't regulating hog production in other states, but rather giving producers another market for producing hogs that are compliant with the California law.

"It's an advantage, it's not a disadvantage to choose a marketing program that best fits their operation," he said.

"It actually is an additional choice. I would argue with the point that it's a regulation as much as it is a marketing option."

AG GROUPS RAISE ALARMS

In briefs filed with the Supreme Court in June, NPPC and the American Farm Bureau Federation said Proposition 12, that took effect in January, would "transform the pork industry nationwide" in violation of the Commerce Clause.

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.

Proposition 12 would make it a criminal offense and civil violation to sell whole pork meat in California unless the pig it comes from is born to a sow that was housed with 24 square feet of space and in conditions that allow a sow to turn around without touching an enclosure.

Voters in the state passed Proposition 12 in 2018 with nearly 63% of votes supporting it.

NPPC and AFBF said because there are "very few sow farms in California" the law governs the housing conditions of sows located "almost exclusively outside of California."

The groups said the U.S. industry as a whole would be forced to reduce herd sizes or build "costly new facilities, and they will require changes in every aspect of caring for sows, including feeding, breeding, medical care, and farm labor."

Back in March 2021, Rabobank said in a report the U.S. pork industry faces a daunting task to comply with Proposition 12 if the legal challenge comes up short.

CALIFORNIA RIGHTS

Megan Wold, an attorney with Cooper and Kirk and the counsel of record on the Supreme Court case for the American Public Health Association, Infectious Diseases Society of America, and the Center for Food Safety, said the Supreme Court case is about California having the ability to regulate what happens within its own borders.

"And there's kind of a paradox, I think, in what the national pork producers are arguing, which is that it's almost as if the more interconnected our economy has become as a country has grown and modernized, that somehow that has reduced the ability of states to regulate," she said.

"Because you can imagine lots of state laws that might have some effect beyond their territory but again, California's welfare is strictly regulating only what happens inside the territory of that state."

On the flip side, the American Association of Swine Veterinarians said in a brief filed with the court that there is "no one-size-fits-all housing type" for all hog producers and that both individual and group hog pens are important tools for farmers.

"I think there are housing types that don't fit any sows," Wold said.

"It's about a housing type that is simply unsuitable to the animals. It's incompatible with the nature, it's incompatible with humane animal husbandry. So, while it may be true that there's a diversity of housing situations that can be appropriate for sales, it is also true that there are some that are absolutely inappropriate."

Barringer, who formerly worked with the likes of Merck and Pfizer, told the Supreme Court in a brief 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.

NPPC has estimated it will cost U.S. farmers between $1.9 billion and $3.2 billion to comply with Proposition 12. The group said fewer than 1% of producers comply. Two of the nation's largest pork companies, Tyson Foods and Hormel, have said they are ready to comply.

Wold said the California law would not force farmers to necessarily stop exporting pork to the state.

"Consumers are already demanding this kind of humane treatment of pigs," she said.

"So, most pork producers already have experience with tailoring particular lines to this type of market. So, they're already segregating some pigs. It's just a matter of only sending those products to California. Maybe it's not satisfactory to everyone but here California is regulating what happens inside of its territory. The decision of producers and other states to sell into California or not, is a decision that's up to them, but it's not a decision that's compelled by what California is doing is setting standards for the groceries that can be sold on their shelves."

Rucha Desai, an attorney with Fairmark Partners, LLP, filed an amicus brief in support of California for the Small and Independent Farming Businesses, said the Supreme Court already has issued rulings on similar questions.

"You're right that maybe some producers will decide not to produce pork for California," she said.

"But the Supreme Court has already stated that that withdrawal from the market is not legally considered a burden to interstate commerce for the purposes of the Dormant Commerce Clause analysis."

In the 1978 Supreme Court case of Exxon v. The Governor of Maryland, the court said, "Interstate commerce is not subjected to an impermissible burden, simply because otherwise valid regulation causes some business to shift from one interstate supplier to another."

Read more on DTN:

"Vet: Pork Prop 12 Burden Claims False," https://www.dtnpf.com/…

"Ag Groups File SCOTUS Brief on Prop 12," https://www.dtnpf.com/…

"Rabobank: Prop 12 Disrupts Hog Supply," https://www.dtnpf.com/…

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

Follow him on Twitter @DTNeeley

(c) Copyright 2022 DTN, LLC. All rights reserved.