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A last chance to stop California’s Proposition 12

If the law is not overturned, California will dictate farming practices across the nation

Gary Baise

October 8, 2019

4 Min Read

Early this month the North American Meat Institute (NAMI) filed a complaint against the Attorney General of California and the Secretary of California’s Department of Agriculture to stop the state’s Proposition 12 law, which flies in the face of the federal Commerce Clause.  NAMI believes the law will “…transform the interstate and international market for pork and veal by banning the sale of wholesome meats imported from other States and countries unless farmers in those States and countries comply with burdensome animal-confinement (rules) that California voters adopted…”  

Another titanic battle between agricultural interests and animal rights interests could be forthcoming.

In 2018 California voters passed Proposition 12, which forces California farmers to provide minimum standardized space for egg-laying hens, breeding pigs, and calves raised for veal. California businesses will be banned from selling eggs or uncooked pork or veal that came from animals housed in ways that did not meet these requirements; so, any non-California based farmer who wishes to sell same products to California consumers must adhere to these rules.

That sounds unconstitutional

But can one state get away with that?

The argument goes back to 1787 at the Constitutional Convention where the Commerce Clause in Article 1, Section 8 said Congress would hold the power to regulate commerce among the several states. The 10th Amendment of the Constitution adopted in 1791 declared that powers not delegated to the United States are basically reserved for the states. For almost 100 years the precedent was set by Gibbons v. Ogden in 1824, which said states had a right to regulate business under the 10th Amendment. In 1942, Wickard v. Filburn (Ohio wheat farmer case) held that virtually any effect on interstate commerce fell within the power of the federal government, and that included any federal regulation addressing cultivation of crops and the raising of livestock.

NAMI claims it represents the largest number of packers and processors of pork, veal and processed meats in the country. The complaint against California officials declared “Many of the Meat Institute’s members own and raise hogs and veal calves in various States across the country and sell pork and veal to customers in California.”

 NAMI claims its members will be regulated and harmed by California’s Proposition 12.  Proposition 12 initially applied to California farmers.  It provided that “A farm owner or operator within the state shall not knowingly cause any covered animal to be confined in a cruel manner.” Cruel manner was defined in Proposition 12 to be a situation “…that prevents the animal from lying down, standing up, fully extending the animals’ limbs or turning around freely.” The second requirement: “After December 31, 2019, [a farmer cannot confine] a calf for veal with less than 43 square feet of usable floorspace per calf.” The third requirement is that “after December 31, 2021, [a farmer cannot confine] a breeding pig with less than 24 square feet of usable floorspace per pig.”  

The sales ban

Proposition 12 also includes a “sales ban” which said these requirements would apply to an out-of-state producer.  This, of course, set off a dispute where many state Attorneys General filed suit in California several years ago -- and lost.

Another two original actions were filed requesting the U.S. Supreme Court to review California’s Proposition 12 and its sales ban designed to extend California’s housing requirements onto out-of-state producers selling products in California; it also failed.

This will be the third attempt, starting with the U.S. District of Court in the Central District of California, to overturn California’s attempt to impose its will on animal agriculture in other states.

Proposition 12 requires the California Secretary of Agriculture to promulgate regulations implementing the proposition by September 1, 2019. The department failed to meet that deadline. NAMI was informed on September 23, 2019 that Proposition 12 regulations will be proposed by the end of 2019 and finalized a year later in 2020.

Is this discrimination?

NAMI claims its members are being discriminated against in violation of the U.S. Constitution’s Commerce Clause. It states that California’s Proposition 12 is to protect California producers “…from bearing costs not borne by out-of-state competitors.” Paragraph 49 of the complaint states the issue clearly and accurately by attacking Proposition 12 “…as an impermissible protectionist trade barrier, blocking the flow of goods in interstate commerce unless out-of-state producers comply with California’s regulations.”

Animal agriculture must and should support NAMI on this one. The complaint declares, “California has no legitimate local interest in how farm animals are housed in other states and countries.”

California has no authority to regulate the conditions under which farm animals are housed outside its borders.  

The opinions of the author are not necessarily those of Farm Futures or Farm Progress. 

About the Author(s)

Gary Baise

Ag Lawyer/Blogger, Olsson Frank Weeda Terman Matz PC

Gary Baise is an Illinois farmer and trial attorney at the law firm Olsson Frank Weeda Terman Matz PC. He also serves as outside General Counsel for several national agriculture organizations, including Agricultural Retailers Association and National Sorghum Producers. Baise organized President Trump’s agricultural team of advisers. He was the first Chief of Staff to the first U.S. Environmental Protection Agency Administrator. He owns a family farm in Jacksonville, Ill.

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