Pork Makes Case V. Prop 12 to SCOTUS

LINCOLN, Neb. (DTN) -- The question of what is moral when it comes to animal pen sizes and other pig-production practices took center stage Tuesday with Supreme Court justices during oral arguments over California's Proposition 12 in the National Pork Producers Council appeal against the State of California.

Agriculture groups led by NPPC argued the Dormant Commerce Clause of the Constitution prohibits such restrictions on out-of-state production practices as it relates to questions of morality.

Jeffrey Alan Lamken, an attorney representing animal rights groups told the court Proposition 12 does not violate the Commerce Clause because it applies solely to pork sold in California.

"They prohibit the sale within California of pork that California finds immoral and unsafe, regardless of where it originates," Lamken said during oral arguments.

"Proposition 12 reflects a moral tradition that has been respected for millennia -- the consuming of meat that is a product of animal cruelty is itself immoral. California chose to rid its markets of some of those immoral products."

Justice Clarence Thomas asked Lamken to define the term "immoral."

"One of the things you might look at is whether this is a traditional basis for regulation, you wouldn't fit something that distinguishes a product from being moral versus immoral. And here, it's historically bound," Lamken said.

"The major religions humanity has recognized for millennia believe that products can be immoral because they're a product of animal cruelty in particular for a particular food. We also look at whether the market recognizes things as distinct products based on their morality, and the market here and regulators here distinguish inhumanely raised created pork from humanely raised pork."

Chief Justice John Roberts questioned the validity of Proposition 12 based on the question of morality.

In responding to Lamken, Roberts said what may be immoral to voters in California in terms of animal-production practices, isn't necessarily that way for other states.

"People in some states may be the ones that produce a lot of pork, Iowa or North Carolina or Indiana, may think there's a moral value in providing a low-cost source of protein to people maybe particularly at times of rising food prices," Roberts said.

The Chief Justice added, "But under your analysis it's California's view of morality that prevails over the views of people in other states because of the market power that they have. I mean, isn't that a consideration we should take an effect in analyzing this under the Commerce Clause if in fact, moral values are going to be given weight at least as significant as economic ones? Why isn't that something that we should be sensitive to under the Commerce Clause, each of those states is able to produce pork and consume pork in the fashion they choose?"

Because Proposition 12 focuses on pork products sold and consumed only in California, Lamken said the state's voters' decision carries the most weight.

"Yeah, but there's no doubt the reason they have this law is one, because they don't have producers in California so nobody's going to be hurt from that point of view," Roberts said, "and two, they want to affect conduct in other states. They want pork producers in Iowa and North Carolina and Indiana to have to produce pork the way they want them to, not necessarily even the way they want their own pork producers to produce, because they don't have any pork producers or de minimis amount."

Timothy S. Bishop, an attorney representing the National Pork Producers Council, American Farm Bureau Federation, National Cattlemen's Beef Association and others, said Proposition 12 violates the Commerce Clause because it's an "extra-territorial" regulation that places conditions on out-of-state farmers.

"California wants to change farming methods everywhere to quote 'prevent animal cruelty' by phasing out extreme methods of farm animal confinement," Bishop said.

"That confinement occurs in other states, California imports 99.9% of its pork. No other state makes farmers house pigs the way that California does and very few farmers do. They keep sows in individual pens during the vulnerable breeding period, and they provide less than 24 square feet of space in group pens."

Bishop said farmers in Iowa, for example, aren't aware of where their pork is ultimately sold. Pigs go to nurseries, finishers, then slaughterhouses where packers butcher them into parts that are hauled around the world in response to demand.

"The only safe course is to raise all pigs the California way which is what we see buyers demanding and the cost of doing that in here import parts sold in places where buyers from willing to pay more to satisfy California's policy preferences," Bishop said.

"If proposition 12 is lawful, New York can say the pigs have to have 26 feet of space and send inspectors into farms to please compliance as California does. Oregon could condition imports on workers being paid the minimum wage and Texas can condition sales on the producer employing only lawful U.S. residents."

Bishop said the Commerce Clause was intended to prevent balkanization of trade at the time of the constitutional convention, and it was intended to stop "interstate strife" among states.

The Biden administration filed a brief in the case supporting the pork industry position.

Edwin Kneedler, U.S. deputy solicitor general, said during oral arguments if Proposition 12 is allowed to stand then it would open the door to states passing laws aimed at a number of retaliatory efforts against other states -- whether it's for reasons of economics or differing political views.

"So, what we have here is basically an attempt by California to regulate what is happening in other states," Kneedler said.

"That is a proposition that, once unleashed, would be difficult to contain."

Michael James Mongan, an attorney representing the state of California, said voters in the state made the decision to pay higher prices to "serve their local interest.

"The Commerce Clause does not prohibit that choice," he said during oral arguments.

"Prop 12 is not protectionist or discriminatory. It doesn't control prices in other states and it doesn't violate the general principle against regulating holy extra-territorial commerce. Sales restrictions often have upstream out-of-state effects, but they're permissible as long as the condition on in-state sales focuses on the actual process for producing the goods sold in the regulating state."

Mongan said Proposition 12 is emphasizing how the market already treats the hog-production process as a basis for differentiating between products.

"That's why stores sell crate-free pork," he said.

"Prop 12 places no restrictions on how out-of-state businesses produce pork for sale in other states."

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 within 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.

Read more on DTN:

"Supreme Court to Consider Prop 12 Case," 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

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