U.S. Supreme Court hears challenge to sow housing law

National Pork Producers Council v. Ross centers on California’s Proposition 12

By R. Scott Nolen
Published: 19 December 2022


The U.S. Supreme Court recently heard oral arguments in litigation challenging the constitutionality of a California law banning sales of out-of-state pork products from producers who fail to meet a certain housing standard for breeding sows.

Proposition 12—a ballot initiative approved by California voters in 2018—allows only for the sale of meat derived from pigs bred by sows provided at least 24 square feet of floor space during the birthing and weaning processes. The standard is required by no other state.

Swine facility
In 2018, California voters passed Proposition 12, a ballot proposal regulating space requirements for egg-laying hens, veal calves, and breeding pigs within the state. It also prohibited the sale of products within the state from producers that didn’t adhere to Prop 12’s animal housing standards, no matter the producer’s location. The legality of Prop 12 was promptly challenged in several cases, including one that is now before the U.S. Supreme Court.

The law also sets housing standards for veal calves and egg-laying hens raised and sold in California. Proponents say the measure promotes animal welfare and provides Californians with access to food sourced from humanely raised animals.

Critics counter that the law violates the U.S. constitution by regulating the pork industry outside California’s borders. The National Pork Producers Council and the American Farm Bureau Federation sued Karen Ross, in her capacity as secretary of the California Department of Food and Agriculture, to invalidate Prop 12.

In July 2021, the 9th U.S. Circuit Court of Appeals rejected their appeal, however, saying the law regulated only in-state activity.

Plaintiffs then petitioned the U.S. Supreme Court, claiming the 9th Circuit had “brushed aside” several Supreme Court decisions on the constitution’s commerce clause, saying they held that “laws with significant extraterritorial effects violate our federalist scheme.”

The petition was supported by amicus briefs from Elizabeth Prelogar, solicitor general of the United States; 20 state governments; the American Association of Swine Veterinarians; the National Association of Manufacturers; and the Cattlemen’s Beef Association. The California VMA has no position on the law, an official with the CVMA said.

Then this March, the Supreme Court announced it would hear the challenge to Prop 12 (PDF). Oral arguments before the court were Oct. 11.

In the meantime, the California Department of Food and Agriculture finalized regulations in September to implement Prop 12 (PDF). Enforcement of the law was originally supposed to begin Jan. 1, but a state-court judge in Sacramento ruled that grocers, restaurants, and retailers would not be subject to enforcement of the new restrictions on sales of whole pork meat until six months after the state enacted its final regulations.

For veal and egg products, the regulations are effective immediately. However, that could change depending on the Supreme Court’s decision.

Representing the pork producers, Timothy Bishop told the Supreme Court, “California wants to change farming methods everywhere.”

“No other state makes its farmers house pigs the way that California does. And very few farmers do,” Bishop said.

“If Proposition 12 is lawful, New York can say that pigs have to have 26 feet of space and send inspectors into farms to police compliance as California does. Oregon can condition imports on workers being paid the minimum wage. And Texas can condition sales on the producer employing only lawful U.S. residents. And at that point, we have truly abandoned the framers' idea of a national market.”

Michael Mongan, solicitor general for California, argued that by overwhelmingly passing Prop 12, California voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable.

“The commerce clause does not prohibit that choice. Prop 12 is not protectionist or discriminatory,” Morgan said. “And it doesn’t violate the general principle against regulating wholly extraterritorial commerce.”

The court is expected to rule on National Pork Producers Council v. Ross next year.


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