The North America Meat Institute (NAMI) is likely to file a writ of certiorari for U.S. Supreme Court review of California’s Proposition 12, which the 9th Circuit Court of Appeals has repeatedly declined to hear.

Passed by California’s largely urban voters in November 2018, Prop  12 imposes space requirements regarding breeding pigs and veal calves within California.

In its quest, NAMI had the support of the Department of Justice on behalf of the United States and the Attorney Generals of 20 state attorney generals in seeking rehearing of the issue by the 9th Circuit, which was un-moved.

“California’s Proposition 12 bans the sale of wholesome pork and veal imported into California if farmers in other states and countries do not comply with the unprecedented animal-confinement requirements adopted by California,” attorneys for NAMI explained. “This trade barrier patently violates the Commerce Clause and interstate federalism because it (1) regulates commerce outside of California’s borders, (2) protects California farmers from out-of-state competition, and (3) imposes massive burdens on interstate commerce that vastly exceed any local benefits.”

NAMI sought review en banc, meaning with the participation of all 9th Circuit judges rather than the usual partial panel  “because it disregards controlling Supreme Court precedent and conflicts with decisions of this Circuit and other circuits.” 

According to NAMI, extraterritorial regulation is limited by the Supreme Court, which has held that “states and localities may not attach restrictions to exports or imports in order to control commerce in other States.” 

Without the requested en banc review, the 9th Circuit “renders this bedrock principle a dead letter in the Circuit by holding that it applies only to ‘price control or price affirmation statute[s].’ ” 

“This arbitrary limitation of the constitutional prohibition on extraterritorial regulation conflicts with the Supreme Court’s decision in Carbone — which applied the extraterritoriality doctrine to a law that was not a price regulation — and with decisions of both this Circuit and other circuits that have struck down extraterritorial regulations outside the price-control context,” NAMI argued.

Prop 12 took effect Jan 1, 2020, requiring that veal calves have at least 43 square feet of usable floor space, and, effective Jan. 1, 2022, breeding sows must have at least 24 square feet of usable floor space. 

NAMI does not challenge California’s regulation of animal confinement within its own borders. 

As NAMI showed — and no one disputed — the Sales Ban serves no consumer-protection interest. And California has no legitimate local interest in regulating how farm animals are housed outside its borders. 

 NAMI  has shown through declarations from its members, and as confirmed by the amicus briefs filed in support, the sales ban will have a devastating effect on the pork and veal industries. 

“It puts pork and veal producers to a Hobson’s choice: either abandon the California market and lose the opportunity to serve 39 million consumers, 12 percent of the U.S. market; or spend hundreds of millions of dollars to remodel their existing facilities and build new ones to comply with Proposition 12’s unprecedented requirements. Either way, the Sales Ban will impose substantial costs on thousands of businesses and farmers throughout the country that cannot be recovered from California due to its Eleventh Amendment immunity.” NAMI contends. 

A three-member panel of appellate judges unanimously rejected the request for rehearing. The denial came after the Department of Justice (DOJ) filed an amicus brief in support of the Meat Institute’s petition for rehearing en banc by the circuit court.

States supporting NAMI included Indiana, Alabama, Alaska, Arkansas, Georgia, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming with a separate joint amicus brief.

NAMI argues that Prop 12 creates a barrier to trade by imposing obligations on out-of-state competitors in an effort to assist local producers of pork and veal. Prop 12 reaches beyond the state’s borders by prohibiting the sale in California of uncooked pork or veal from animals housed in ways that do not meet California’s requirements. As a result, Prop 12 sets confinement standards for how pigs and veal calves are raised anywher in the United States or in any foreign country.

In addition to banning the use of cages on California farms, Proposition 12 prohibits the sale of eggs, pork, and veal from cage confinement systems — regardless wher the animals were raised. NAMI said it opposes the law because it will hurt the nation’s food value chain by significantly increasing costs for producers and consumers.

Economic analysis done for the State of California predicts consumer prices will increase because producers will have to spend to expand or construct new animal housing, which may cost more to operate in the long term. The state acknowledges it may take several years for farmers to comply resulting in a shortfall of products and increased prices for consumers.

California is joined with several animal activist organizations in defense of the statute. Prop 12 is being phased in. NAMI’s failure to get a hearing means the law is not going to be halted from going into effect, according to the Humane Society’s Sarah Schweig.

Beginning Dec. 31, 2021, Proposition 12 requires each sow whose offspring is intended to be sold into California be allotted at least 24 square feet in the group pen.

Prop 12, however, is being challenged in a separate California Court by the National Pork Producers Council and the American Farm Bureau Federation on behalf of hog farmers.

 There is substantial dairy, poultry, and egg processing in the state of California, but there is virtually no pork production in the state.

Proposition 12 unconstitutionally interferes with the functioning of a $26 billion a year interstate industry, according to NAMI. To satisfy California’s demand for pork requires 673,000 sows annually. The state currently has about 8,000 breeding sows.