After delays due to court challenges and the need to wait for a ruling from the Supreme Court, Prop 12 is now law.

The state has registered more than 1,250 producers and distributors to sell Prop 12-compliant eggs and pork.

To view the list .

Meanwhile, in Massachusetts pork processors are challenging a similar law approved by voters. A major difference is the Massachusetts law, known as Question 3, does not allow transshipment of pork that does not meet the cage-free requirements. Massachusetts recently filed a brief opposing the companies’ efforts to stop the law.

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The president of the National Pork Producers Council, which fought California’s Proposition 12 animal welfare law all the way to the Supreme Court, said on Tuesday he won’t convert his Missouri hog farm to satisfy the California rules. Scott Hays told reporters that it wasn’t clear if making the required renovations, meant to give breeding sows more room to move about, would pay off.

“I know myself, personally, I chose not to make that change,” Hays said at a news conference. NPPC officials said they sought a smooth implementation of Prop 12 on Jan. 1, but at the same time, they have encouraged Congress to override the California law. “It goes beyond the pork industry. This is a struggle … that many other industries could face,” said Brian Humphreys, NPPC chief executive. The trade group contends that Prop 12 is an unconstitutional state barrier to interstate commerce, although the Supreme Court upheld the law in May.

NPPC leaders said the organization, with members throughout the production chain, was not tracking farmers’ decisions about adapting to Prop 12 housing standards. Instead, they called it an individual business decision.

Farmers would bear the expense of remodeling or building new hog barns to meet Prop 12 rules, said Hays, who farms in northeastern Missouri. “We don’t know yet,” he said, if Californians are ready to pay more for pork and if additional revenue would filter through retailers and pork processors to reach producers. “And for my family, we’re not willing to bet the farm that all that is going to happen.”

Some large pork producers, including Hormel, Smithfield, and Tyson Foods, have said they will comply with Prop 12, reported Reuters a month ago.

Prop 12 requires hog farmers in California to provide 24 square feet of floor space to each breeding sow, and it prohibits the sale of pork produced on farms in other states that do not meet that standard. Farrowing crates can be used in the final days before sows give birth and until their piglets are weaned.

Although California is a relatively small pork producer, it consumes around 15 percent of U.S. pork. Voters approved Prop 12 by a landslide in a statewide referendum in 2018. The NPPC and the American Farm Bureau Federation, the largest U.S. farm group, fought Prop 12 in court for years.

Since the Supreme Court ruling, the NPPC has given its support to the so-called EATS Act, which would allow virtually anyone — producers, distributors, consumers, and laborers are among those named — to file suit in federal court to invalidate a state or local “standard or precondition on the pre-harvest production of any agricultural products sold or offered for sale in interstate commerce if the production occurs in another state.”

Opponents say the bill is written so broadly it would jeopardize 1,000 health, safety, and welfare laws on the state level, despite being presented as a protection of states’ rights.

Asked if lawmakers would support including language similar to the EATS Act in the new farm bill, Hays replied, “We do need a fix. And we very much appreciate [House Agriculture Committee chair Glenn] Thompson being a champion trying to get this resolved.”

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These 2 million farms are required to abide by numerous laws enacted on state and federal levels each year. More recently, those laws, including the Waters of the U.S. (WOTUS) and Proposition 12, have been challenged in the U.S. Supreme Court (SCOTUS). 

Ray Starling, general counsel at the North Carolina Chamber of Commerce, details what the recent rulings mean for growers and the ag industry as a whole.

Waters of the United States (WOTUS)

EPA published its final definition of WOTUS on Dec. 30, 2022, which gave federal protection to large waterways, such as interstate rivers and streams, and adjacent wetlands starting in March 2023. The definition was challenged by numerous organizations at the state level.

How does the ruling impact growers?

SCOTUS’s ruling quickly caused confusion in various states, as many properties are in low-lying areas by rivers, streams and other waters that the federal government could deem a wetland. While the ruling might have disrupted operations, the EPA’s “jurisdictional arm” on-farm is much shorter now, than it was a few weeks ago, according to Starling.

“Growers in the past would say, ‘I have this piece of land that may be wet several weeks of the year. Is that subject to being deemed a wetland by the federal government?’ The new ruling says growers should only have that concern if the water, or very wet spot, has a surface water connection, or is clearly connected to navigable water. Only then can EPA interfere,” he says.

SCOTUS says the EPA’s definition of WOTUS is too broad and needs tweaked. EPA announced it plans to rectify the definition—a move Starling anticipates will come this fall.

Proposition 12

California enacted prop 12 in 2018, effectively banning the sale of pork within the state unless pregnant pigs are allowed at least 24 square feet of space and the ability to stand up and turn around in their pens.

Ag organizations quickly pushed a lawsuit to California’s side of the table, which then moved over to SCOTUS. In May, SCOTUS ruled prop 12 is constitutional, detonating a major blow to pork and the ag sector, according to Jim Wiesemeyer, policy analyst for Pro Farmer/Farm Journal.

Starling fears interstate commerce could take a foothold in the ag industry as a result of prop 12, and he’s not alone.

“There’s nothing stopping California from saying, for example, you can only sell corn in California if it’s harvested with an electric combine,” says John Dillard, principal at OFW law. 

Those fears have only amplified and revealed themselves at the state level, according to Starling.

“I’ve been asked, ‘What can we ban from California,’ and that’s not exactly what we want to hear at the Chamber of Commerce in North Carolina. But it does create that race to the bottom instinct,” says Starling.

What can growers do to create change in the cases of WOTUS and prop 12?
    
These legislative measures didn’t develop overnight; they were crafted over many years, according to Starling. In order for these laws to be undone, or future laws to be blocked, he says it will take equally as many years of advocacy. 

Here are Starling’s suggestions for growers:

1.     Educate yourself

“The gateway of media is very fluid now compared to 20 or 30 years ago. Using blog posts and clearly unvetted information to defend ag is not the way to win,” says Starling. “We have to do better on the academic front. Find reputable sources and learn how to properly cite them.”

2.     Band together

“In many cases, like in prop 12, it’s a threat to all sectors of ag. We have to figure out how to horizontally work together instead of in verticals. Crop farmers need to learn to work alongside livestock growers to create change. Ask questions and fight for each other.”

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Representatives Ashley Hinson (R-IA-2) and Zach Nunn (R-IA-3) introduced the bill, which has companion legislation in the Senate titled the “Ending Agriculture Trade Suppression (EATS) Ac.,” It is sponsored by Senator Roger Marshall (R-KS) with support from other Senators, including Joni Ernst (R-IA) and Chuck Grassley (R-IA).

The EATS Act was prompted by California’s Proposition 12 and Massachusetts’ Question 3, both of which ban the sale of pork from hogs whose mothers were raised in housing that fails to meet the states’ arbitrary standards. It would prevent states like California or Massachusetts from passing laws that seek to regulate agricultural production practices on farms outside of the state.

According to the National Pork Producers Council (NPPC), the EATS Act restores the long-standing relationship between states and the federal government under the U.S. Constitution’s Commerce Clause, which grants Congress the exclusive power to regulate trade between and among the states and restricts states from regulating commerce outside their borders.

NPPC supports finding a legislative solution, like the EATS Act, to Proposition 12 to prevent state and local governments from interfering with the production of agricultural products in other states.

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Virtually anyone — producer, distributor, trade group, transporter, consumer, and laborer were named in the bill — would be empowered to challenge such regulatory infringement in court and seek financial compensation.

“This is a matter of states’ rights,” said Sen. Roger Marshall, Kansas Republican and lead sponsor of the bill. “If California wants to regulate agriculture in its own state, that’s fine, but California’s rules should not apply to Kansas, whose legislature never approved of these regulations.”

Farm groups and meatpackers began looking for a congressional rescue within days of the Supreme Court decision on May 11 that Proposition 12 was constitutional. Prop 12 requires California farmers to give egg-laying hens, veal calves, and breeding sows more floor space, and it bars the sale of pork, veal, and eggs produced on farms outside the state that do not meet California’s standards.

The pork industry says it will be unduly expensive to modify barns and processing systems to satisfy the demand of one state, albeit it’s the country’s most populous.

Beyond banning state/ local governments from imposing “a standard or condition on the preharvest production of any agricultural products sold or offered for sale in interstate commerce if … the production occurs in another state,” the bill, filed by the seven Republicans, would authorize lawsuits by individuals and government units “to invalidate that regulation and seek damages for economic loss resulting from that regulation.”

California has set a six-month transition period, until Jan. 1, for compliance with the rule on meat sales. At the Supreme Court, it argued that because Prop 12 applies only to meat sold in the state, it was not an impediment to interstate trade.

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In a fractured ruling that divided the cour along nonideological lines, the majority said the measure, known as Proposition 12, did not unlawfully regulate pork produced in other states, as the challengers claimed. The law is on hold as part of separate litigation in state court.

Five justices wrote their own opinions, showing that there was considerable dissension over what legal rationale to adopt. While five justices said the lawsuit should be dismissed, four said it should have been allowed to move forward.

The ruling, written by Justice Neil Gorsuch, protects the authority of states to enact laws to protect the health and welfare of the public even if the measures have impacts out of state. Groups that back California had warned that a broad ruling against it could limit states’ authority to enact laws about a wide variety of issues, including measures to address climate change, such as by efforts to reduce reliance on fossil fuels by promoting renewable energy.

“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” Gorsuch said.

While it is long established that states cannot use their laws to discriminate against out-of-state interests, the California law is focused on regulating the sale of pork within its own borders, he said.

Scott Hays, the president of the National Pork Producers Council, which challenged the measure, said in a statement: “We are very disappointed with the Supreme Court’s opinion. Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation.”

Californians approved Proposition 12 in 2018 with nearly 63% of the vote, a margin of more than 3 million votes. The measure would require that sows have at least 24 square feet of space in their enclosures, allowing them to turn around. The state’s lawyers  that voters were told the measure, which is not in effect, would most likely increase the price of pork but provide for more humane living conditions for pigs and potentially reduce the risk of foodborne illnesses.

The National Pork Producers Council, which represents the pork industry, and the American Farm Bureau Federation, which represents farming interests, sued in 2019, saying the measure violates a provision of the Constitution called the commerce claus, which has been interpreted to bar states from interfering with interstate commerce.

The challengers said the measure would impermissibly interfere with interstate commerce in part because almost all of the pork sold in California is produced out of state by farmers who would not currently be in compliance. The law would also impose an excessive burden on out-of-state entities without having a clear in-state benefit, they argue. As a result, they say, the law has an unlawfully broad extraterritorial effect.

Lower courts upheld the measure, prompting the challengers to turn to the Supreme Court, which has a 6-3 conservative majority.

Other states have passed similar laws based on moral concerns, including nine that ban products tested on animals and eight that ban eggs produced by caged hens, lawyers for the Humane Society of the United States have pointed out. Nine states also ban sales of fetal tissue from aborted fetuses, according to court filings.

The groups challenging the California law said in court papers that Proposition 12 “will transform the pork industry nationwide” because currently nearly all farmers keep sows in pens that do not comply with the law.

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