Is California telling out-of-state farmers how to raise their hogs?

If citizens in one state pass restrictive livestock production rules, does that unfairly dictate to farmers in other states how they must raise their animals? We’re about to find out because the pork industry has brought a constitutional challenge against a California animal welfare law and the US Supreme Court has agreed to hear this case. We will get a decision by spring 2023.

Animal welfare legislation took effect this year in California, dictating roomier than typical cages for various animals raised in the state. The rule went even further by requiring all affected meat sold within California’s borders to have been raised in the same manner. Pork farmers in the rest of the US aren’t pleased about the additional hoops required to sell to California consumers.

One important principle of our government structure is that only Congress can regulate national commerce. We don’t want states able to pass laws that benefit their citizens but harm everyone else in the US. This constitutional protection is designed to ensure that our national economy runs smoothly, and with fairness. If a state passes a law that negatively impacts another state’s economy, that impact can’t be too great, and there better be a really good reason for needing the regulation in the first place.

The Prop 12 case illustrates the balance that must be struck well. Animal welfare requirements for California pork will necessarily have a huge impact on the pork industry as a whole—Californians consume between 13 and 14% of the nation’s pork. The new regulations require altering the majority of current pig breeding farms.

Typically, a sow is housed in a cage where she cannot turn around; the average cage size ranges from 14-to 20 square feet. California’s new law requires 24 square feet, and the sow must be able to turn around. Farms will have to decide if they alter their entire operation or divide sow housing into California-approved and non-California-approved.  Either option is a logistical and costly nightmare.

There are practical concerns, too—how will these regulations be enforced? And, more difficult, how will suppliers and packers keep track of pigs born to sows with these roomier cages throughout the supply chain? California has proposed on-farm inspections to enforce the rules. And, to address the second concern, you might be seeing new labels on your pork in the upcoming years that indicates whether or not it is “California approved.”

The strength of the law’s impact becomes clear when one imagines California inspectors on farms in North Carolina, for example, to enforce a rule passed by citizens on the opposite coast. California maintains the reason for the rules that will have “dramatic upstream effects” is public health—that housing pigs in a more humane manner produces healthier animals and therefore healthier meat.

Also important is that this measure passed by 63% of the vote in California, and if people in California want to only consume pork raised in at least 24 square foot cages, isn’t that their right?

Despite the burdens that will accrue to the pork industry if the law is upheld, there is strong legal precedent to hold that the law is permissible. The fact that the Supreme Court agreed to hear the case, though, indicates the current court thinks the issue needs more consideration, even after several lower courts have decided in favor of California.

California isn’t the only state trying to strike a balance between local desires and a national economy. Arizona’s Department of Agriculture just passed a regulation requiring all egg-laying hens and all eggs sold in the state to have (or have come from hens with) at least one square foot of usable floor space starting this October. The group World Animal Protection is also circulating a ballot referendum petition in Arizona (if enough signatures are collected, it will be voted on in the general election this November) that would enact the same protections passed in California in 2018 that are currently under debate. The Supreme Court decision will be a pivotal moment for the nation as we try to balance animal welfare with farming business needs.

To read about the legal arguments on each side, you can read the petition to the Supreme Court from the National Pork Producers Council and the American Farm Bureau Federation here and California’s response here.