Over the past decade, California’s voters and legislature have supported several measures that mandate changes in common meat and egg production practices with consequences that extend far beyond the state’s borders.
It began in 2008, when voters approved Proposition 2, a ballot initiative prohibiting California farmers from using gestation crates for hogs, confining veal calves in traditional hutches and keeping egg-laying hens in battery cages.
The passage of Proposition 2 put California’s pork, egg and veal producers at a competitive disadvantage with out-of-state and foreign producers. However, this was temporary because:
- In 2010, the California legislature enacted Assembly Bill 1437, which protected California’s egg farmers by prohibiting the sale of shelled eggs from hens reared in out-of-state housing that did not meet Proposition 2’s standards.
- In November 2018, voters approved Proposition 12, a ballot initiative that prohibits the sale of fresh cuts of pork and veal in California that does not meet the animal housing requirements imposed on California’s farmers in Proposition 2.
The Long Arm of Proposition 12
Given the buying power of California’s consumers, Proposition 12 is effectively setting standards for pork and veal producers in other states and in foreign countries that wish to sell meat in California.
Proposition 12 is premised on shaky legal grounds. Although California’s government has the right to deem certain animal raising practices within their borders unlawful, the state has no jurisdiction over animals outside of the state. Instead, the proponents of Proposition 12 have made bare assertions that common confinement methods result in meat that threatens the health and safety of California consumers and increases the risk of foodborne illnesses.
On Oct. 4, 2019, the North American Meat Institute (NAMI) filed a federal lawsuit in the Central District of California seeking to enjoin California from implementing Proposition 12. The lawsuit alleges Proposition 12 violates the U.S. Constitution’s Commerce Clause because it discriminates against out-of-state producers, distributors and sellers of pork and veal.
NAMI points out the primary purpose of Proposition 12 is to level the playing field for California’s farmers by erecting impermissible protectionist trade barriers. Also, NAMI asserts California has not demonstrated, through scientific evidence, it has a legitimate consumer health and safety concerns pertaining to how animals are housed outside of the state.
It will take several months (or longer) for this case to be resolved. The lawsuit raises issues with consequences that extend beyond California’s law. It is apparent leaving these types of laws in place would allow states to create a patchwork of regulatory systems that was not intended under the Constitution.
John Dillard is a principal at OFW Law. He provides regulatory counsel, general counsel, and litigation services to clients in the agriculture and food industries.