DES MOINES, Iowa — How do you challenge a state law that could have major impacts to the U.S. pork industry as a whole?
A case — or a court — at a time, according to the general counsel for the National Pork Producers Council.
“We worked hard to develop a plan that we thought would be successful in pushing back and attacking through the legal system,” said Michael Formica, general counsel and assistant vice president for domestic affairs at the NPPC.
Formica gave an update on Proposition 12 during a press conference at the 2022 World Pork Expo.
Proposition 12, also known as the Farm Animal Confinement Initiative, establishes minimum space requirements for calves raised for veal, egg-laying hens and breeding pigs and bans the sale of products from those animals in California if the space requirements are not met by producers.
The November 2018 ballot initiative passed in California, with 62% of voters, 7,551,434 voters, approving it and 37% of voters, 4,499,702 voters, opposing it.
In 2019, the National Pork Producers Council and the American Farm Bureau Federation filed a complaint asking the U.S. Southern District for California to invalidate the law, saying that it violated the Interstate Commerce Clause of the U.S. Constitution.
In April 2020, a Southern District judge dismissed the case. The NPPC and AFBF appealed to the Ninth Circuit Court of Appeals and the Ninth Circuit ruled against them in July 2021.
The NPPC and AFBF appealed to the U.S. Supreme Court and in March, the U.S. Supreme Court agreed to hear the case. Oral arguments are scheduled for Oct. 11.
In answer to a question from Bryan Humphreys, NPPC CEO, Formica said he and others in NPPC leadership saw a path forward to challenge Proposition 12 at the highest court level.
“As a lawyer, we would say it provided as close to a per se case of an unconstitutional, extraterritorial regulation as we have seen in literally decades. That is the basis for our lawsuit. We saw this take place. We saw a path to bring a challenge,” Formica said.
Formica acknowledged that the Supreme Court was the last stand for the NPPC’s case against the ballot initiative.
“We knew we were not going to be successful at the district court level. We knew we were going to have a tough time at the court of appeals level because of the law in California and the Ninth Circuit. But we knew we had a path to get to the U.S. Supreme Court and we stayed focused on that path and thankfully the Supreme Court agreed with us,” he said.
Formica said the NPPC chose to focus solely on Proposition 12. A similar ballot initiative, Question 3, passed in Massachusetts in 2016.
But Proposition 12 has the potential to have a greater impact not just on the nation’s pork producers, but also pork consumers across the country.
“Question 3 is very similar to Proposition 12 except it differs in two important factors. It does not provide a minimum square footage and the other piece is that enforcement of Question 3 can only come through the attorney general of Massachusetts and that enforcement cannot take place until the regulations are set,” Formica said.
Formica said the NPPC also was conscious of the size of the California consumer market that would be affected if Proposition 12 goes into effect.
“California is a massive state. There are almost 40 million people in California. It is about 13% of the US population. I think a good guesstimate is that it is about 15% of the domestic market (for pork). California produces almost no pork at all. It takes about 650,000 to 750,000 sows to produce the piglets that will become the pork that is sold in California, if 100% of that pork goes to California,” he said.
While other states have passed ballot initiatives that regulate space requirements for breeding sows, Formica said those ballot initiative would likely not be impacted by whatever the Supreme Court decides on Prop. 12.
“I don’t imagine it would apply to some of the other states where they passed ballot initiatives, but there are not restrictions on the sale of pork. HSUS was able to get Oregon to pass a ballot initiative in how you raise hogs in the state of Oregon. That’s fine. A state can always decide how they can regulate an industry that is located within that state. Of course, they targeted states where there is no pork production, so there would be no local impact. But they never banned the sale of products until we saw Question 3 and Proposition 12. And that is where it becomes unconstitutional,” he said.