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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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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In a fractured ruling that divided the courts, 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 the law could limit states’ authority to enact laws about a wide variety of issues, including measures to address climate change, including efforts to reduce reliance on fossil fuels by promoting renewable energy.

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 pointed out in court papers 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 clause, which has been interpreted to bar states from interfering with interstate commerce.

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 pointed out.

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The 2018 initiative, Proposition 12, aims to prevent the  that pig farms typically use to house sows whose offspring are taken for slaughter and sale. The initiative requires at least 24 square feet of space per pig—10 square feet more than the industry says most sows are provided elsewhere in the U.S.

The Supreme Court has applied the Constitution’s Commerce Clause to prevent states from discriminating in favor of their own domestic industries.  applies regardless of where the pigs are raised, however, and lower courts dismissed the lawsuit because they found no constitutional violation in the initiative making it more costly to produce meat for the California market.

On appeal to the Supreme Court, the industry argued that because most pork is raised outside California, the state is attempting to transform production practices throughout the country to meet its vision of animal welfare.

Timothy Bishop, representing the National Pork Producers Council, told the court that state regulations imposing costs on out-of-state businesses are unconstitutional.

“California’s moral view that pigs shouldn’t be kept this way could be matched by Iowa’s view that the most important thing about these sows is producing inexpensive pork,” Mr. Bishop said.

Under questioning from the justices, Mr. Bishop said California could take other steps to promote animal welfare, including applying the regulations to in-state farms, requiring grocery-store labels so consumers could identify pork raised under humane conditions or even forbidding sale of the meat altogether.

Justice Sonia Sotomayor questioned whether California’s law truly would be so devastating to the industry, noting that consumer demand already was pushing farms toward more humane treatment. According to the briefs, 28% of gestating pigs already are housed in groups rather than confinement cages, she said.

Less than 10% of U.S. sow housing meets California’s Proposition 12 standards, up from roughly 4% at the start of 2021, according to agricultural lender Rabobank.

Violations of the law in supermarkets and restaurants could be punished with fines of up to $1,000 or as many as 180 days in jail, according to the California Department of Food and Agriculture.

Meatpacking companies and hog farmers have resisted California’s ballot measure, saying it would raise meat prices by causing hog farmers to spend millions of dollars building new barns and changing their operations. Pork suppliers say the law would create chaos in the supply chain and risk their pigs’ health.

Proposition 12 passed with 62% support, though its proponents’ argument in the official ballot materials noted that the measure would likely increase the price of pork, with additional production costs passed on to consumers.

U.S. pork companies are paying more for the hogs they buy from farmers, pressuring profits for some of the largest U.S. processors. Part of meatpackers’ challenge is that hogs are getting scarcer and more expensive. The costs of farm labor, equipment and livestock feed , making farmers more hesitant to grow the size of their herd, according to hog farmers. Pork industry executives and farmers say Proposition 12 would add another expense onto farmers and raise the price of pork.

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