Californians can have their heightened animal welfare — and eat their bacon, too

With the remaining components of California's Proposition 12 -- the state's 2018 ballot initiative covering the in-state production and sale of certain eggs, pork and veal -- set to be fully in effect this coming January, there has been some recent speculation regarding what effect the law might have on availability of pork to feed the Golden State's appetite for pork products. Much of this speculation is based on inaccurate or incomplete information about what the law does, how the courts have ruled in challenges to Prop. 12 and similar laws, and the pork industry's response to the law.

Proposition 12 does not ban bacon -- or any other animal product -- from being sold in California. Rather, as it pertains to pork, the law prohibits the in-state sale of "whole pork meat" that comes from a "covered animal who was confined in a cruel manner, or is the meat of immediate offspring of a covered animal who was confined in a cruel manner." Breeding pigs are "confined in a cruel manner" if they are prevented from "lying down, standing up, fully extending [their] limbs, or turning around freely" or if they are confined with less than "24 square feet of usable floorspace per pig." In other words, the only pork sales Prop. 12 prohibits are those that come from businesses that force pigs into some of the cruelest forms of confinement.

An overwhelming 63% majority of California voters passed these minimal, modest standards. In doing so, they clearly indicated that confining these highly intelligent and social creatures in cramped cages so small that they are pressed against metal bars and cannot turn around or stretch their limbs (as is often standard industry practice) flies in the face of the state's humane values. Indeed, the law's clearly articulated purposes include: "prevent[ing] animal cruelty, by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers, and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California." And, California has always been at the forefront of animal protection efforts. Other laws restricting cruel or inhumane products from the California marketplace include restrictions on the sale of dog and cat pelts, horse meat, shark fins from sharks whose fins are chopped off and the sharks thrown back to die, and liver (foie gras) that comes from ducks and geese who have tubes rammed down their throats to force them to ingest enough food to grow their livers to abnormal sizes.

Moreover, and despite the animal confinement industry's repeatedly unsuccessful claims to the contrary, such sales bans are entirely constitutional, as the courts have recently confirmed in two meat industry cases filed long after parts of Prop. 12 went into effect. In these cases -- North American Meat Institute ("NAMI") v. Becerra and National Pork Producers Council ("NPPC") v. Ross -- two very similar groups of pork and veal producers filed similar dormant commerce clause claims in two neighboring federal courts in California. National Pork Producers Council et al. v. Ross et al., 2021 DJDAR 7653 (9th Cir., July 28, 2021).

Unsurprisingly, the results thus far have also been similar -- and resoundingly against the animal confinement industry. In June, the U.S. Supreme Court declined to review the 9th U.S. Circuit Court of Appeals' rejection of NAMI's request to enjoin Prop. 12's enforcement. Just one month later, the 9th Circuit affirmed the district court's dismissal of the NPPC case. Both plaintiff groups wrongfully contended that the law violates the dormant commerce clause by allegedly impermissibly regulating commerce beyond California's borders and imposing a substantial burden on interstate commerce that clearly exceeds any benefits to the state.

What the producer groups misunderstand is that Prop. 12 is directly in line with the rights of each state to regulate products that are sold within its borders, especially when that regulation is tied to important public policies like animal welfare and public health and safety. Proposition 12 is much like many laws all across the country that restrict the sale of products based on how they affect public health, safety and morals within the regulating state. Longstanding judicial precedent confirms that preventing animal cruelty and excluding inhumane, unsafe or substandard products from state marketplaces are constitutionally sound prerogatives of the states. As recently as 2010, the U.S. Supreme Court emphasized that the prohibition of animal cruelty is rooted as far back as the early settlement of the colonies. In 1987, the 2nd U.S. Circuit Court of Appeals confirmed that states have a legitimate interest in cleansing their markets of unethical commerce related to animal cruelty. And, in a 2014 dormant commerce clause challenge, the 9th Circuit similarly upheld California's ban on force-fed foie gras, based in part on this established precedent.

Though NAMI and NPPC keep trying to convince the courts otherwise, Prop. 12 evenhandedly regulates sales in California based on how covered animal products are produced, not where they are produced. Compliance is entirely dependent on producers' choice to sell their products in the California marketplace.

At most, the pork and veal producers in these cases allege that the law will have indirect effects on how their meat is produced and sold outside of California -- because of their desire to take advantage of the California market that demands a modicum of humane treatment for the animals involved. But, as the 9th Circuit recently made clear in Ross: "A state law is not impermissibly extraterritorial unless it directly regulates conduct that is wholly out of state," and Proposition 12 directly regulates only in-state sales. And, though producers who choose to sell their pork in California might need to "adopt a more costly method of production to comply with Proposition 12, such increased costs do not constitute a substantial burden on interstate commerce." In fact, producers who choose to convert to more humane methods of production will be able to meet increasing demand for more humane products nationwide and so could, in the long run, ultimately profit based on the standards of Prop. 12.

Indeed, even as NPPC and NAMI continue banging on the same closed legal doors in costly, losing court battles rather than preparing to meet increasing consumer demand for humane products (the NAMI case is now back in the district court for proceedings on the merits, while NPPC mulls its options regarding petitioning the 9th Circuit for rehearing or appealing to the Supreme Court), numerous pork producers are going a different route.

For example, Hormel -- a member of both NAMI and NPPC -- publicly announced nearly a year ago to its shareholders and the public that it intends to fully comply with Prop. 12 and that in doing so it will "face no risk of material loss." Other companies like Niman Ranch and Coleman Natural Foods (both owned by Perdue Farms), have stated they are either already in compliance with Prop. 12 or are preparing to comply. These shifts in production practices make good business sense, given that 11 other states besides California have similarly banned the intensive confinement of pigs, and major food companies around the country have responded to customer demand by pledging to eliminate such confinement from their supply chains. And these shifts further underscore the hyperbolic nature of NAMI and NPPC's claims that it is too difficult or even impossible to comply with Prop. 12; their members would do well to take note if they want to continue to help meat-eating Californians and other humane-minded consumers bring home some bacon.

As Prop. 12 goes into full effect in January, Californians can feel confident that because of their votes, the pork, veal and eggs they are buying meet a heightened standard that reflects their values of preventing cruelty and protecting public health -- and that the courts have consistently backed them. Proposition 12 is here to stay, and as Porky Pig would say: "that's all, folks." 