Can one state regulate hog production in another? The U.S. Supreme Court will decide
Dwight Mogler’s hog operation near Lester in far northwest Iowa has long rows of narrow enclosures that separate some of the female pigs, called sows, from one another.
When sows are ready to be bred, they get moody, often aggressive towards one another. So Mogler separates them in these individual pens, called breeding stalls, to prevent them from fighting or biting each other.
“The only reason we do this is to protect the animal,” Mogler said.
The sows stay in these stalls while they’re bred, for up to a week. They can stand up and lie down, but they can’t turn around.
But under a California law, Mogler’s breeding stalls are too small, meaning pork from his sows or their immediate offspring couldn’t be sold in that state.
While the regulations on pork have not yet gone into effect, they’re causing a lot of concern for producers across the country who argue it will cost them millions of dollars to comply. Two pork industry organizations have brought suit against California, and on Oct. 11 the U.S. Supreme Court will hear oral arguments.
Voters in California weigh in on animal welfare
Back in 2018, California voters passed an animal welfare ballot measure called Proposition 12 with more than 62% approval. The measure said businesses couldn’t sell meat from animals that have been confined in a “cruel manner.” It included housing requirements that have already gone into effect for calves raised for veal and egg-laying hens.
Proposition 12 also included stricter rules on how breeding sows are raised, requiring at least 24 square feet of space per pig.
The Humane Society of the United States supported the ballot initiative. Josh Balk, the vice president of farm animal protection, said voters care about animal treatment and food safety.
“They don't want unsafe food forced upon them,” Balk said. “They don't want unsafe and cruelly produced food being forced to be sold to consumers where they live.”
But California, which is a large market for pork, produces almost no hogs itself.
Two major pork industry groups, the National Pork Producers Council and the American Farm Bureau Federation, sued in 2019, saying Prop 12 would hurt pork producers’ livelihoods and the pork supply chain.
They argued their case in front of the U.S. Court of Appeals for the Ninth Circuit in 2021, which dismissed their argument and upheld the law. But the pork industry groups appealed to the U.S. Supreme Court, which chose to hear their case.
In Iowa, the nation’s top pork producing state, most large-scale hog operations use breeding stalls smaller than the 24 square feet Proposition 12 requires. The stalls in Dwight Mogler’s hog operation give each breeding sow 15 square feet of floor space, though Mogler said his sows actually spend the majority of their time in group pens, which have more space.
Mogler said it would be a multi-million dollar expense to expand his facilities to comply with Prop 12 and his farm would have to implement practices that go against his own animal welfare principles.
“After looking at that and not being able to sleep very well,” he said, “we had to make the conscious decision that we will be susceptible to being discounted. But we cannot comply with Prop 12 standards.”
If Proposition 12 stands and goes into effect next spring, Mogler expects he’ll get a lower price for his pigs from pork processors if they can’t sell that meat into California.
He’s also a minor shareholder in a South Dakota hog operation that is being renovated to give those pigs more space, despite concerns about the sows interacting when they’re more aggressive.
Mogler said he’s dipping his toes into the water with California’s law.
“We’re taking a big risk,” he said.
The question of California’s impact on the pork industry
The question of whether one state can regulate the commerce of other states is at the heart of the lawsuit brought by the National Pork Producers Council and the American Farm Bureau Federation against California.
“Proposition 12 is unconstitutional,” said Michael Formica, a legal strategist for the NPPC, during a recent forum with news organizations.
Formica said Prop 12 creates a burden on farmers outside of California, which he says is a violation of the Constitution’s Dormant Commerce Clause. The clause is not explicitly stated in the Constitution, but rather, implied, and prevents one state from passing legislation that burdens commerce of other states.
“[Proposition 12] reaches thousands of miles outside of the state of California, imposes very prescriptive standards on farmers who have no contact with the state of California,” said Formica, adding it “will force them to incur millions of dollars in renovations to their farms.”
California makes up 13% of the U.S. pork market, and since it has few hog operations, most of the pork sold in the state comes from elsewhere. Yet there’s disagreement about whether Prop 12 would force the entire pork industry to shift producers’ housing for hogs in order to meet California’s law.
“There’s the sky is falling mentality that we're hearing coming from the Midwest, for example, in terms of what this proposition is going to do to the hog industry, versus the reality."Rich Sexton, professor of agricultural and resource economics at University of California, Davis
NPPC President Terry Wolters, who raises hogs in Minnesota, said once he sells his pigs to a packing company, he has no control over where those pork products end up.
“Our concern is that not all the pieces of the pig are going to end up in California,” Wolters said. “If they only want one part of the pig, one primal cut, then the cost has to be borne across the whole pig.”
Rich Sexton, a professor of agricultural and resource economics at University of California, Davis, said there’s a big market outside of California for producers who don’t want to comply with the California law.
“There’s the sky is falling mentality that we're hearing coming from the Midwest, for example, in terms of what this proposition is going to do to the hog industry, versus the reality,” he said.
While Sexton doesn’t expect every pork producer needs to shift their operation to meet California’s regulations, he does think it will impact prices.
Sexton was part of a team of researchers who conducted an analysis on Proposition 12 and its effect on California consumers. The researchers expect the cost of pork products to rise by about 25 cents per pound, causing consumers to eat less pork.
Legitimate public interest or excessive burden?
Neither California’s attorney general’s office nor the California Department of Food and Agriculture responded to requests for comment. But the state’s court filing points to the Ninth Circuit’s ruling that dismissed the case.
“Every lower court to consider a Dormant Commerce Clause challenge to Proposition 12 has rejected it … “ California wrote in its court filing. “The petition here presents the same core legal issues and alleges the same circuit conflicts. Here again, the allegations of a circuit conflict are unpersuasive, and petitioners identify no other persuasive reason for the Court to grant review.”
The court filing also says California voters had a legitimate interest in promoting sow welfare and human health.
“States have long restricted the sale of certain animal products to ‘discourage [their] consumption’ and ‘prevent complicity in a practice that [the State has] deemed cruel,’” wrote California.
“Does California have a legitimate public interest that they can uphold without unduly burdening commerce? Or is it clearly excessive?”Roger McEowen, professor of agricultural law and taxation at Washburn University School of Law
Californians may be concerned about sow welfare and food safety, said Roger McEowen, a professor of agricultural law and taxation at Washburn University School of Law, but the U.S. Supreme Court will weigh whether the law unfairly foists those concerns onto producers outside of the state.
“Does California have a legitimate public interest that they can uphold without unduly burdening commerce?” McEowen said. “Or is it clearly excessive?”
McEowen said the state’s concern about human health should be “abated” because the U.S. Department of Agriculture’s Food Safety and Inspection Service has employees that inspect livestock carcasses before an animal is processed, to make sure its meat is safe.
If the court were to side with California and Proposition 12 stands, McEowen said it could open the door for individual states to make their own decisions about what can and can’t be sold within their borders; for example, if one state decided they didn’t want to accept genetically modified food.
“The concern is, where would this stop? Do we have 50 independent, basically country states in the nation?” McEowen said. “Or do we have one nation with states able to regulate their own conduct, but stay out of the economic conduct of other states?”
In northwest Iowa, pork producer Dwight Mogler said if Prop 12 stands, he worries other states could pass similar ballot initiatives or laws and he and other producers would get caught in a web of varying state regulations to follow to sell their pork.
“My concern is this snowball will get a lot bigger,” Mogler said, “that our food system will become disrupted. And in the end, the consumer will lose.”
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This story was produced in partnership with Harvest Public Media, a collaboration of public media newsrooms in the Midwest. It reports on food systems, agriculture and rural issues. Follow Harvest on Twitter: @HarvestPM