The Supreme Court’s decision to allow California’s animal housing law to remain in place caused a furor in the pork industry and among farm-state lawmakers, who vowed to introduce legislation to overturn the ruling. But the ruling's impact also may be felt in the 25 other states that allow voters to craft laws through ballot initiatives.
The high court ruled last week against overturning California's Proposition 12, which sets animal housing standards for pork and other animal products sold in the state. Those standards apply to operations across the country seeking to sell into the state's massive consumer market.
Sen. Roger Marshall, R-Kan., said he’d be reintroducing a bill that failed to gain traction in the last Congress. The Exposing Agricultural Trade Suppression (EATS) Act would prohibit states or local governments within those states “from interfering with the production or manufacture of agricultural products in other states,” according to a press release from August 2021. Rep. Ashley Hinson, R-Iowa, introduced companion legislation in the House.
But legislative prospects are cloudy at best, given Congress’s historical reluctance to invalidate a voter-supported state law — especially one in a state as big as California.
Sen. Roger Marshall, R-Kan. (AP Photo/Mariam Zuhaib)National Pork Producers Council officials said all options are on the table moving forward, including legislation. NPPC and the American Farm Bureau Federation brought the lawsuit against Prop 12, in part to delay implementation of the regulations, which will require substantial amounts of recordkeeping and space changes. For example, any veal calf will be required to have at least 43 square feet of "usuable floorspace" and a breeding pig will need a minimum of 24 square feet.
The California Department of Food and Agriculture said in a statement that “as it has since the beginning of 2022, CDFA’s Animal Care Program will continue to focus on implementation of distributor registration requirements, accreditation of third-party certifiers, and outreach and technical assistance to businesses throughout the supply chain.
“As we approach July 1, when a previous court order suspending Prop 12 enforcement expires, CDFA looks forward to engaging with industry representatives to further discuss what is needed to achieve a smooth transition to compliance,” the department added.
A similar law in Massachusetts has been stayed by a state court until mid-June, 30 days after the Supreme Court's May 11 decision.
“I think this decision just is going to embolden the citizenry in other states with ballot initiative processes to take action and potentially pass new laws similar to Prop 12 around the country,” said Laura Fox, director of the Farmed Animal Advocacy Clinic at Vermont Law.
More than half the country, 26 states and the District of Columbia, have citizen referendum or initiative processes, Fox noted. “I wouldn't be surprised if a number of organizations are currently active in trying to establish some ballot initiatives,” she said.
Although they questioned whether pigs’ lives would be measurably improved by the requirements of Prop 12, two animal law professors said in a commentary that the case “represents a watershed moment for the growing political power and potential of animal protection activism.”
In one part of the opinion, four justices made clear that the kind of policy choices embodied in Prop 12 “belong to the people and their elected representatives,” professors Justin Marceau of the University of Denver and Doug Kysar of Yale Law School wrote in Vox May 12.
“This liberates animal advocacy of all stripes from constitutional constraint, representing a victory both for those who pursue total animal liberation … and for those who would settle for better animal welfare laws,” they wrote.
The question is how far activists might go. Marceau and Kysar ask, “Could we imagine a world in which the idealized notion of the small, humane family farm is legally enforced to some extent by, for example, banning the almost immediate separation of calves from their mothers in the dairy industry, or the common practice of removing animal tails or testicles without anesthesia?”
On the other hand, the decision could mean the eventual passage of federal legislation.
“As a specialist in animal law, I expect that this will result in a patchwork of laws that are likely to make national meat producers very uncomfortable,” Michigan State law professor David Favre wrote for The Conversation. “Ultimately, it could push Congress to set federal standards.”
He predicted that within five years, Congress will enact legislation on farm animal welfare issues that will preempt state laws.
“It is impossible to predict now whether a new national law would improve animal welfare or adopt existing poor welfare practices — but California’s win represents a major victory for advocates who have sought for years to improve conditions for farm animals across the U.S.,” he said.
Sen. Chuck Grassley, R-Iowa, told reporters Tuesday he expected Marshall to float his bill again, but acknowledged it would be hard to pass. The last time around, Grassley was one of four Senate co-sponsors, along with fellow Iowa Republican Joni Ernst and Sens. John Cornyn, R-Tex., and Cindy Hyde-Smith, R-Miss.
“It might be difficult to get bipartisan agreement to overrule California, plus the fact that in the House of Representatives, California has got 56 votes right from the start,” Grassley said.
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Sen. Chuck Grassley, R-Iowa (AP Photo/Andrew Harnik)Asked whether the farm bill is the proper vehicle for legislation, Grassley said that was the case “because it's difficult to get (Majority Leader Chuck) Schumer to put up a controversial bill” due to floor time constraints.
With ballot initiatives likely in the future, Fox said she would advise farm groups such as the National Pork Producers Council to reach out to animal rights groups.
Calling national legislation “probably a futile effort at this point,” Fox said, “If I were advising the pork industry, my advice would be to communicate with organizations — and I know that they're painted as extremist and they're not rational — but they really do want common sense sort of solutions, and I think a lot of (them) are open to constructive conversations.”
“It’s time to really join that conversation and then through that, (farm groups) might be able to influence the timing of these changes, what those types of ballot initiatives might say,” Fox added. “In that sense, it's like, if you can't beat them, join them. Then maybe they'll be able to have some of their interests reflected in whatever impending changes are going to come from this.”
In response to a question about whether it would reach out to animal welfare groups, NPPC spokesperson Betsy Rado reiterated that the group “is evaluating its options to determine the best path forward for America's pork producers.”
American Farm Bureau Federation spokesman Mike Tomko said its state affiliates “are already engaged with legislators, regulators, organizations and interests all across the country, and have been before this ruling.”
“Farm Bureau will continue building relationships and engaging in dialogue with the processors, food companies, consumers and marketers all throughout the chain,” Tomko said.
NPPC estimates it would cost $3,500 per sow to comply with Prop 12’s 24-square-foot requirement, and cites an analysis that concluded the nationwide cost of converting sow barns to group pens would be $1.9 billion to $3.2 billion.
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