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Prop 12 supporters file their arguments to SCOTUS

Veterinarian says current technology would allow required segregation to meet needs of Prop 12.

Jacqui Fatka

August 9, 2022

5 Min Read
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It’s now the turn of those in favor of California’s animal welfare production standards established under Proposition 12 to provide their opinions to the Supreme Court of the United States. Many organizations and individuals plan to submit amicus briefs in support of Prop 12, in which they will further explain to the Court why they believe Proposition 12 is “sound law.”

The briefs will include diverse perspectives across ideological lines—including those from veterinarians, nonprofits, economists and constitutional scholars. The Humane Society of the United States, as well as with other animal protection group allies, and the state of California submitted briefs to the Court in support of the proposition.

These briefs follow on American Farm Bureau Federation and National Pork Producers Council’s brief filed June 10 in the initial round of briefs in opposition to Prop 12 from the National Pork Producers Council as well as support from the Biden administration’s top lawyer, the solicitor general. (View the AFBF and NPPC brief.)

The California state law seeks to ban the sale of pork from hogs that don’t meet the state’s production standards, even if the pork was raised on farms outside of California. According to petitioners, approximately 72% of pork producers house sows throughout gestation in individual stalls of approximately 14 square feet per sow. Individual stalls enable sows to avoid aggression or injury from other sows and provide each sow with individual access to food and water without competition. The stalls prevent sows from turning around as an animal-health and sanitation measure. The remaining pork producers use group housing and generally provide 16 to 18 square feet per sow. Neither practice complies with Proposition 12’s confinement requirements of 24 square feet per sow.

In the brief filed by the state of California, they state, “The only Proposition 12-compliant pork that out-of-state businesses must produce is the pork they choose to supply to California’s market; they are free to produce as many other pork products as they want, and to sell them to markets outside of California. Proposition 12 is no different in that respect from other longstanding state sales restrictions that require out-of-state producers to use particular labels or to conform to specific quality or safety standards if they choose to participate in the enacting State’s market.”

HSUS notes that “a long history of judicial decisions have concluded that states have the right to prohibit the sale of products within their borders, including those that run counter to the ethics of their citizenry, or that threaten public health and safety.” HSUS says with its briefs, the HSUS, it’s animal protection partners and the government of California have laid out this history for the Court and respectfully urge the justices to maintain this important precedent.

“We are confident that we’re going to win this battle. And regardless of the ruling, the animal protection movement is going to continue to fight relentlessly in state legislatures, court houses and corporate board rooms until there isn’t a single gestation crate or battery cage left in the country,” says Josh Balk, vice president of farm animal welfare at HSUS. “Voters across the political spectrum have repeatedly made clear that they agree: this sort of confinement is cruel and unnecessary, and we applaud the many industry leaders that are already shifting in the crate-free and cage-free direction. It’s not only the right thing to do morally, but it’s proving to be the smart business decision.”

Veterinarian says Prop 12 implementable

There are many examples where retailers are taking action to require certain production practices. Target committed to eliminating gestation-crated pork from its supply chain in 2012. The company projects that by September 2022, the majority of all fresh pork sold at Target will be produced from open pen gestation systems. Marriott International has encouraged its suppliers to “grow their supply of gestation crate-free and group-housed pork,” and as of year-end 2019, “8.4% of pork purchased by hotels in the U.S., Canada, [the Caribbean, and Latin America] was classified as either gestation crate-free or group-housed,” according to a brief filed by Dr. Leon Barringer, a large animal veterinarian who specializes among other things disease outbreak investigation and previously served as a professor as well as oversaw the health and welfare of pigs at both Pfizer and Merck.

“Given existing technologies and processes, pork producers and others throughout the supply chain can trace and segregate Prop 12-compliant pork without any substantial burden or expense,” according to Barringer.

The NPPC and AFBF brief states that Proposition 12 “will require massive and costly changes across the entire $26-billion-a-year hog farming industry. And it inescapably projects California’s policy choices into every other state, a number of which expressly permit their farmers to house sows in ways inconsistent with Proposition 12.”

Barringer says existing animal identification systems—such as RFID ear tagging—can be used to identify specific pigs and store information on whether the pig’s mother was housed in a manner consistent with Prop 12. Ear tags are already used to identify individual pigs, their health history, feeding history, and interstate movement. These tags already capture information relevant to specialty products like “grass-fed” or “hormone free,” as well as information about humane farming practices, like a pig’s mother’s housing, for “crate-free” pork, Barringer explains.

Similarly, packers’ existing processes of identifying groups and individual pigs for slaughter—including carcass tagging, tattoos, and trolley tracking—can be leveraged to both trace and segregate Prop 12-compliant meat products at the packing facility, the veterinarian’s brief adds. “Today, packing facilities already have processes to associate ear tags and other physical identifiers, like tattoos, from slaughter to the packaging of the finished product, allowing tracing even for particular cuts of pork,” he continues.. 

“All stakeholders in the supply chain can thus capture and track Prop 12-compliant pork throughout a pig’s life cycle,” he says. “Indeed, it is possible through tattoos used in packing plants for producers to identify from a single cut of meat all available data about that product, including the breeding farm where the pig was born and the housing system used for sows at that farm. Newer technological advances like blockchain technology offer even more possibilities for efficiently identifying and tracking individual pigs and pork products.”

Barringer also says the USDA through the Food Safety Inspection Service already has an approved crate-free label for pork. “Crate-Free” is just one claim that must be approved by the FSIS. Others include living- and raising-conditions claims like Free Range, Not Confined, Free Roaming, Pasture Fed, Pasture Grown, Meadow Raised, and Pasture Raised.  

About the Author(s)

Jacqui Fatka

Policy editor, Farm Futures

Jacqui Fatka grew up on a diversified livestock and grain farm in southwest Iowa and graduated from Iowa State University with a bachelor’s degree in journalism and mass communications, with a minor in agriculture education, in 2003. She’s been writing for agricultural audiences ever since. In college, she interned with Wallaces Farmer and cultivated her love of ag policy during an internship with the Iowa Pork Producers Association, working in Sen. Chuck Grassley’s Capitol Hill press office. In 2003, she started full time for Farm Progress companies’ state and regional publications as the e-content editor, and became Farm Futures’ policy editor in 2004. A few years later, she began covering grain and biofuels markets for the weekly newspaper Feedstuffs. As the current policy editor for Farm Progress, she covers the ongoing developments in ag policy, trade, regulations and court rulings. Fatka also serves as the interim executive secretary-treasurer for the North American Agricultural Journalists. She lives on a small acreage in central Ohio with her husband and three children.

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