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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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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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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“We are extremely pleased that the Supreme Court will consider the constitutionality of Prop 12, in which California seeks to impose regulations targeting farming practices outside its borders that would stifle interstate and international commerce,” said NPPC President Terry Wolters.

NPPC has waged a legal battle against the ballot initiative since it was approved in November 2018, arguing at the U.S. district and appellate court levels that Prop. 12 violates the Constitution’s Commerce Clause, which grants Congress the power to regulate trade among the states and limits the ability of states to regulate commerce outside their borders.

Prop. 12, which took effect Jan. 1, 2022, prohibits, in California, the sale of pork from hogs whose mothers were raised in pens — anywhere in the world — that do not comply with the state’s highly prescriptive housing standards. It applies to any uncooked pork sold in the state, whether produced there or outside its borders. Nearly all pork currently produced in the United States fails to meet California’s arbitrary standards. s

“AFBF is pleased with the Supreme Court’s decision to consider the constitutionality of California’s law imposing arbitrary requirements on farmers well outside its borders.   We share California’s goal of ensuring animals are well cared for, but Prop 12 fails to advance that goal. We look forward to presenting the facts to the Court, including how Prop 12 hamstrings farmers’ efforts to provide a safe environment for their animals, while harming small family farms and raising pork prices across the country. One state’s misguided law should not dictate farming practices for an entire nation.”

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