In challenging an animal welfare law, the pork industry questions how far states' rights extend

The US Supreme court hears the pork industry's case against California’s Proposition 12
All cramped up.
All cramped up.
Photo: Joern Pollex (Getty Images)
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A California law mandated larger living spaces for livestock used in uncooked meat products sold in the state. The pork industry is out to prove that the charter is “unconstitutional.”

In a US Supreme Court hearing today (Oct. 11), pork industry lobby groups will challenge California’s Proposition 12 (Prop 12), which defines the minimum amount of space that mother pigs, baby cows, and laying hens must be given.

According to Prop 12, backed by 63% voters in 2018, a seller shall not “knowingly cause any covered animal to be confined in a cruel manner.” In the case of pigs, this means each mother and offspring must have at least 24 square feet of living space.

For the $26 billion pork industry that’s long raised sows (pregnant pigs) in gestation crates where they can hardly stretch, let alone move, this is a tall order. Not being able to meet it will hit sales. Being able to comply means bearing higher costs.

By the digits

65,000: farmers who raise pigs in the US

125 million: hogs raised annually

$26 billion: estimated annual pork industry sales

15%: share of the US pork market California represents

99%: pork consumed in California produced outside the state

$294 million to $348 million: estimated costs farmers face in adapting to California’s law

25%-35%: sow capacity loss for a typical farm as it become Prop 12 compliant

9.2%: increase farmers’ production costs by per pig, roughly $13

11: pages in the growing docket for the case

The case against California’s Prop 12

The challengers

National Pork Producers Council (NPPC): an agricultural organization with pig farmers as well as the entire pork chain and associated businesses such as veterinarians, pork packers, and processors, as its members.

American Farm Bureau Federation (AFBF): an agricultural organization whose goal is to improve farmers’ conditions. Nearly six million families are members of AFBF.

The issue

The crux of the issue is whether Prop 12 violates the constitution’s “dormant commerce clause” by imposing an unreasonable burden on interstate trade. Several states ban gestation crates within their borders, but California takes the ban a step further—targeting the sale of products derived from animals born in gestation crates affects not just domestic production, but the entire pork industry.

It will “transform the pork industry nationwide,” NPPC and AFBF argue. Given that almost all of the pork sold in the state is produced outside, Prop 12’s “practical effects are almost entirely extraterritorial.”

Monitoring the pig supply chain across multiple farms, packer-slaughter plants, and distributors to ensure compliance with Prop 12 is near impossible. And adapting to these standards across the country, where most producers don’t meet the criteria, will be costly and could spell the end of business for smaller sow farms.

And of course, any rise in costs will likely pass on to consumers—regardless of whether they’re in California.


The plaintiffs will argue that allowing the California law to stand risks allowing other states to set standards that influence food production standards nationwide.

“Allowing States to impose their own policy preferences on farmers, processors, wholesalers, and retailers nationwide will fracture national markets into regional and local affairs. That future is precisely what the framers intended the Commerce Clause to prevent.” —a brief filed by the National Association of Manufacturers

But dissenters say that states are well within their rights to mandate laws on food standards, public health, and animal welfare. Siding with pork producers could in fact set a dangerous precedent, upending many of these protections:

“Legal challenges to states’ and cities’ policies setting climate and clean energy standards, regulating cannabis, flavored tobacco, car sales, or firearms…could soon follow—and may succeed in striking down such laws.”- Harvard Law School report on potential reverberations of pork producers’ commerce clause challenge before the supreme court

Big Pork’s stance

In a contrast to the lawsuit, major pork producers aren’t stoically opposed to Prop 12.

Food processing company Hormel Foods says it “faces no risk of material losses from compliance with Proposition 12,” beyond adding manageable “complexity” to their supply chain.

Prop 12 is 4% of meat manufacturer Tyson Foods’ production and the company “is currently aligning incentivizing suppliers where appropriate,” CEO Donnie King said last year. “We can do multiple programs simultaneously, including Prop 12.”

Smithfield Foods, Seaboard, and Clemens Food Group have all said they can comply with the law, too.

Do pigs need more space?

Gestation crates tend to restrict movement, which hurts pigs in more ways than one, according to veterinarians and animal welfare scientists:

  • As female pigs expand, crates press against their bodies, causing discomfort, lesions, or pressure sores, and rectal prolapse
  • They prevent hungry pigs from accessing food in neighboring stalls. The ones who do end up injuring their heads and snouts
  • The unnatural “dog-sitting position” not only keeps them from resting properly, but it can lead to urinary tract infections and immobility is associated with musculoskeletal atrophy, constipation, and impaired cardiovascular fitness
  • There are psychological ill-effects with pigs confined to gestation crates spending much time performing abnormal, functionless behaviors, such as “chewing” with empty mouths or on metal bars, and failing to respond to stimuli as a normal animal would

Plus, the intensive confinement can lead to more diseases within pigs, which they pass on to piglets, which can then spread among humans, too.

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