The Farm Animal Confinement Initiative Heads to the Supreme Court

In 2023, the U.S. Supreme Court is scheduled to rule on California’s Proposition 12, the Farm Animal Confinement Initiative, which sets minimum requirements for animals in confined housing. The proposition, which has been quite controversial, has strong support from both sides.

Originally passed by California voters on November 6, 2018, the legislation requires farm owners and operators to house covered animals in non-cruel ways, and sets minimum standards for freedom of movement, cage-free design, and floor space. Applicable animals include breeding pigs, veal calves, and egg-laying hens. Specifically, the law prohibits selling shell eggs, liquid eggs, whole pork meat, or whole veal meat from animals housed in inhumane spaces to California. Any sale of an illegal (i.e., non-compliant) pork product is punishable by a $1,000 fine per violation or a 180-day prison sentence.

Effects of the Law

Prop 12 became effective on January 1, 2022. However, in 2022, a Sacramento County superior court judge ruled that some of the proposition’s pork provisions wouldn’t become effective until 180 days after the California Department of Food and Agriculture finalized Prop 12 regulations, which occurred on September 7, 2022, says Kate Brindle, senior specialist of public policy in the Farm Animal Protection Department at The Humane Society of the United States in Gaithersburg, Md.

Prop 12 has introduced significant uncertainty into the pork industry, says Michael Formica, chief legal strategist at the National Pork Producers Council in Des Moines, Iowa, who believes that the ruling is unconstitutional. “One state can’t make laws regulating commerce between states,” he says. “This creates regulatory and financial chaos.”

Under Prop 12, farmers raising pigs that provide pork products to the California market must register and pay California agents to inspect their farms. “This will create serious biosecurity threats nationwide,” Formica says. Having out-of-state inspectors visit multiple farms increases the risk of disease spreading from farm to farm, he adds. Furthermore, he says that there aren’t enough inspectors to conduct all the inspections and maintain proper biosecurity protocols.

According to David Stender, a swine field specialist at Iowa State University in Cherokee, some larger companies that were already planning to remodel have already remodeled their facilities to Prop 12 standards. But most smaller operations haven’t made changes for various reasons, including the fact that many smaller operators have seen sows attack each other in pens during mixing and feeding events.

Simultaneously, the harvest plant slowdown from the COVID-19 pandemic severely burdened most small operations financially, especially those that lacked a packer marketing contract, Stender says. This made it prohibitive to make financial investments while exiting the industry.

Furthermore, Stender says it was impossible for producers to obtain advanced marketing contracts that covered the cost of enlarging pens. As the proposition’s deadline approached, the cost of remodeling skyrocketed due to the expense of building materials. There was also a scarcity of labor due to the need for remodeling and learning how to implement new systems.

Proponent Arguments

States have long played roles in protecting their residents by removing unsafe and morally objectionable products. “Prop 12 does exactly that, by ensuring that Californians won’t be subjected to buying products they overwhelmingly consider cruel and unsafe,” Brindle says.

According to Shawn Stevens, Esq., founder of the Food Industry Counsel, LLC, in Milwaukee, Wisc., and member of Food Quality & Safety’s Editorial Advisory Board, “Supporters argued that the law applies equally to producers located within and outside of California, and that they will only have a minimal impact outside of California.”

Opponent Arguments

In presenting their case to the Supreme Court, challengers of Prop 12 called the law unconstitutional because it serves to regulate the pork industry outside of California and, therefore, stands in the way of interstate commerce, Stevens says. Opponents also argued that Prop 12 regulations will drastically change farming throughout the country as producers shift to comply with its requirements.