Pork as a Constitutional Issue: The Dormant Commerce Clause and Animal Protection 

Pork as a Constitutional Issue: The Dormant Commerce Clause and Animal Protection 

Caroline Tait

Associate Editor

Loyola University Chicago School of Law, JD 2024

On October 11, 2022, the Supreme Court began to hear the case of National Pork Producers Council v. Ross. The issue of this case stems from Proposition 12, a 2018 ballot revision to existing California law that banned the sale of “whole pork meat from animals confined in a manner inconsistent with California standards.” The National Pork Producers Council and the American Farm Bureau Federation (both referred to as “the Council”) argue that Proposition 12 violates the Dormant Commerce Clause and has reached the Supreme Court on this issue.

When the case was heard before the Ninth circuit, the Council argued that Proposition 12 violates the Dormant Commerce Clause because it: “1) impermissibly regulates extraterritorial conduct outside of California’s borders by compelling out-of-state producers to change their operations to meet California standards; and 2) it imposes excessive burdens on interstate commerce without advancing any legitimate local interest because it significantly increases operation costs but is not justified by any animal-welfare interest and “‘has no connection to human health or foodborne illness.’”

The California Department of Food and Agriculture notes that Proposition 12 was part of the Farm Animal Confinement Initiative and requires that “covered animals be housed in confinement systems that comply with specific standards for freedom of movement, cage-free design and minimum floor space, and identifies covered animals to include veal calves, breeding pigs and egg-laying hens, as specified.” This law also bans the sale of eggs, veal, and pork products that do not comply with the standards set.

How the Dormant Commerce Clause Applies

The Court of Appeals’ opinion considers the scope of the Dormant Commerce Clause, stating that the two primary principles of a State’s authority to regulate interstate commerce are that “First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce.” In this specific case, The Council only argues the second principle, that Proposition 12 places an undue burden on interstate commerce. Therefore, the Dormant Commerce Clause argument here is that this law would allow California to maintain a law that discriminates against interstate commerce.

The primary issue of interstate commerce in this case arises because more than 99% of the pork sold in California is produced outside of the state. Because California imports almost all of its pork, Proposition 12 would force out of state farmers to comply with the California law in order to sell there.

Controversy and impact

The outcome of this case will have serious implications for the U.S. pork industry, which is valued at $26 billion. Some opponents of Proposition 12 believe that it could cause states to lean on their moral judgments, while proponents argue that it is simply a regulatory issue for pork production standards. Associate chief counsel for the US Chamber Litigation Center was quoted saying that the case, “would trigger harmful interstate trade wars as other states attempt to mimic California’s regulatory strategy.”

The pork lobby argues that this new law would force the industry to have to “reinvent itself just for California.” However, animal rights activists, such as the Center for a Humane Economy, argues that this is a moot point as 34% of pork production is already done without the use of gestation crates, a requirement that would be imposed by Proposition 12. Additionally, companies such as Hormel and Tyson have already stated that they would be able to comply with these new standards.

In June of this year Smithfield Foods, Inc., known as the largest pork packer in the U.S., left California due to rising costs, citing “red tape like that from Proposition 12” and other high costs as the reason for their departure. This Proposition 12 controversy comes at a less than ideal time while much of California’s other agriculture is also struggling. As of this fall, dairy farmers are leaving due to high costs, rice farms are being ravaged by the drought, and nut farmers are facing a devastating supply glut. Given these challenges faced by such an agriculture heavy state, there is merit to arguments expressing concern for California’s economy as well as the availability of products to consumers. However, these concerns may be outweighed by moral and political considerations.

At the same time, if Proposition 12 is upheld by the Supreme Court, these new standards would force states to comply with more humane production practices. Dormant Commerce Clause and federalist arguments aside, it is a good thing and a progressive step in the right direction to hold these huge national farms accountable to better standards of care for the animals in their custody.

Finally, as with any Supreme Court case, it is important to consider the current legal and political environment in which National Pork Producers Council v. Ross is being decided. This case comes at a hostile and historic time of Supreme Court decisions. Proposition 12 should be upheld by the Supreme Court as these new standards could usher in both a new era of animal rights protection as well as putting social causes before business. This case could be a good opportunity for the Court to win back public support on a case that is less politically polarized.