The Supreme Court will hear the pork industry’s challenge to California’s Prop 12 regulation that bans the sale of meat and eggs from animals in extreme confinement next week.
The pork industry has been fighting Prop 12 since it passed in 2018 with over 62% of the vote. The practice at issue is the use of gestation crates, small enclosures pregnant pigs are kept in for most of their lives, unable to turn around or stretch their limbs.
Animal rights activists say the crates are inhumane and cause unneeded suffering for the animals. Other organizations, including the Infectious Disease Society of America, say they promote the spread of disease in animals and could increase the likelihood that those diseases spread to humans.
The pork industry's previous challenges to the regulation have failed, but there is a worry that the Supreme Court, with its more business-friendly makeup, will see things differently. The Department of Justice filed a brief in favor of the pork industry’s position, despite 15 senators signing a letter urging them to support Prop 12. The DOJ brief was signed by the solicitor general Elizabeth Prelogar, who was nominated by President Biden shortly after taking office.
The arguments against Prop 12 hinge on the “dormant commerce clause” of the Constitution. The pork industry argues that the law would create an unreasonable burden on interstate trade. While many states ban gestation crates from being used within their borders, California’s Prop 12 is the first that would ban the sale of pork using gestation crates in areas outside of its borders.
However, the commerce clause is not intended to give industries a nationwide open market. Many states have regulations on products that are created outside of their borders. If the Supreme Court shoots down Prop 12, it could have consequences for other state regulations, including laws that ban the use of carcinogenic chemicals in skin care products, lead and BPA in food containers, and California’s planned ban on gas cars, among others.
It is not uncommon for the Supreme Court to hear a case to signal a change in how the court plans to rule. Advocates for Prop 12 fear that this may be what the Supreme Court is doing by hearing this case. However, according to The Guardian, two of the court’s more conservative justices, Neil Gorsuch and Clarence Thomas, have signaled that they do not believe the commerce clause is “appropriate doctrine,” indicating they may rule in favor of Prop 12.
The pork lobby claims that Prop 12 would cause an undue burden on their operations, saying it would be too difficult to track which pieces of pork came from which farm. However, the pork industry already sells “cage-free” pork, and that along with designations like “non-GMO,” “antibiotic free,” and other classifications already requires the type of tracing the pork industry would need to follow to comply with Prop 12.
A study commissioned by the National Pork Board also found that only 10% of North American pork production will need to ditch gestation crates to satisfy Prop 12.
Additionally, the pork industry is telling investors that Prop 12 compliance will not have a large effect on their bottom line. Tyson CEO Donnie King said in a 2020 earnings call that it would only affect 4% of their production. Hormel said in a statement it faces “no risk” of significant losses due to Prop 12, and noted that its Applegate brand already complies with the regulation. Meanwhile, Smithfield said it will comply with Prop 12 and a similar law in Massachusetts.
The Supreme Court is expected to rule on the case between December and June of next year.