Ahead of  Jan. 1, 2022, when state Proposition 12 begins to prohibit pork sales in California unless they are raised under strict new prohibitions, the 9th Circuit Court of Appeals is going to rule on whether or not the new state law violates the Commerce Clause.

U.S. District Court Judge Thomas J. Whelan didn’t much care about the Commerce Clause arguments when he tossed the case last April 27.

“In support of their argument that Proposition 12 will impose substantial costs on producers, plaintiffs claim the pork industry will consolidate into larger farms and smaller farms will cease operations as a consequence of increased costs” Whelan wrote.

“However, interstate commerce is not subjected to an impermissible burden simply because an otherwise valid regulation causes some business to shift from one  supplier to another.” 

While pork producers and consumers might be injured economically, “that argument relates to the wisdom of the statute, not its burden on commerce,” he continued. “The fact that changes to the physical farms and operations might impose financial burdens on the hog producers is not enough to establish a substantial burden on interstate commerce.”

“Thus, plaintiffs have failed to demonstrate that there is a substantial burden on interstate commerce. As such, the Court need not determine whether the benefits of the challenged law are illusory. The motions challenging the sufficiency of plaintiffs’ substantial burden on interstate commerce claim for relief are granted and the second claim for relief is dismissed with leave to amend.”

In the appeal to the 9th Circuit, the defendants continue to include Karen Ross, Secretary of the California Department of Food and Agriculture; Sonia Angell, California Director of Public Health; and Xavier Bacerra, Attorney General of California; all in their official capacities.

The American Farm Bureau and the National Pork Producers Council filed the appeal on June 18 and they’ve jointly filed opening written arguments seeking to have the appellate court strike down Prop 12 for violating the U.S. Constitution’s Commerce Clause.

Prop 12 mandates housing standards for sows raised for commercial breeding that are  six months or older or pregnant.

Holding a sow “in a cruel manner” is defined as one that prevents lying down, standing up or fulling extending  the animal’s limbs or freely turning around.

The previsions take effect after Dec. 31, 2021,  thereafter requiring every pig get at least 24 square feet of usable floorspace. 

California wants to apply the law to pork producers inside and outside of its borders if they sell product in the state.

The NPPC and the AFBF argue that by attempting to regulate businesses outside of its borders, California’s Proposition 12 violates the Commerce Clause of the U.S. Constitution.

In their opening  written arguments, the two ag groups say Prop. 12 “imposes an enormous and costly burden on interstate commercial transactions, requiring wholesale rebuilding of tens of thousands of sow farm facilities and massive operational changes in how farmers care for their sows.”

They also claim the new California law “achieves no consumer health benefit at all — though that was touted to voters as one of its goals — and far exceeds any right of California to determine what its own citizens eat by regulating as a practical matter how pork is produced nationwide.”

California is a pork consumer, about 13 percent of the nation’s total, and requires huge imports to satisfy the state’s demands.

Less than 1 percent of pork produced in the U.S. currently meets the state’s demands.

The NPPC says only about 1,500 sows are currently raised in California while its consumption amounts to 673,000 sows annually.

“If Californians want to eat only pork produced in a certain way, they can raise their own pork in state and insist on those conditions (and pay more for pork as a result), but the dormant Commerce Clause does not permit them to force their preferences on the industry nationwide and worldwide or, as also results from Proposition 12, on consumers outside California,” says the brief.

An estimated 72 percent of sow farms — care for their animals in individual pens throughout gestation. Pens typically  provide the sow with around 14 sq. ft. of space and — for hygiene, safety, animal welfare and caretaking reasons — do not allow the sow to turn around. 

This reduces sow stress, injury and mortality rates on farms during the critical gestation period; it also protects farm hands, the group added.

The remainder of sow farmers—28 percent —, keep their sows together most of the time in group pens, which generally provide 16-18 sq. ft. per sow. Almost universally, farmers who use group pens move their sows into individual breeding pens for the 30-40 days between the time a sow finishes weaning a litter through the time she enters estrus (capacity to breed), is re-bred and pregnancy is /confirm/ied.

The Commerce Clause, according to the Plaintiffs, “was included in the Constitution to prevent state governments from imposing burdens on unrepresented out-of-state interests merely to assuage the political will of the state’s represented citizens.”