By David Favre, Professor of Law at Michigan State University College of Law and Co-Founder of the Animal Legal Defense Fund. Republished from The Conversation.
Should Californians be able to require higher welfare standards for farm animals that are raised in other states if products from those animals are to be sold in California? The U.S. Supreme Court will confront that question when it hears oral argument in National Pork Producers Council v. Ross on Oct. 11, 2022.
Pork producers are challenging a law that California voters adopted in 2018 via ballot initiative with over 63% approval. It set new conditions for raising hogs, veal calves and egg-laying chickens, whose meat or eggs are sold in California. The state represents about 15% of the U.S. pork market.
At most commercial hog farms, pregnant sows are kept in “gestation crates” that measure 2 feet by 7 feet – enough room for the animals to sit, stand and lie down, but not enough to turn around. California’s law requires that each sow must have at least 24 square feet of floor space – nearly double the amount that most now get. It does not require farmers to raise free-range pigs, just to provide more square feet when they keep hogs in buildings.
The National Pork Producers Council argues that this requirement imposes heavy compliance costs on farmers across the U.S., since large hog farms may house thousands of sows and that it restricts interstate commerce. The Constitution’s commerce clause delegates authority to regulate interstate commerce to the federal government. In a series of cases over the past 50 years, the Supreme Court has made clear that it will strike down any state law that seeks to control commerce in another state or give preference to in-state commerce.
Farmers and animal welfare advocates understand that if California wins, states with the most progressive animal welfare policies – primarily West Coast and Northeast states – will be able to effectively set national standards for the well-being of many agricultural animals, including chickens, dairy and cattle. Conceivably, California might also be able to require basic conditions for human labor, such as minimum wage standards, associated with products sold in California.
Nine other states have already adopted laws requiring pork producers to phase out gestation crates. Massachusetts’s law would also apply to retail sales of pork raised elsewhere, like California’s, but its enforcement is on hold pending the Supreme Court’s ruling in the California case.
States control farm animal welfare
The main federal law that regulates living conditions for animals is the Animal Welfare Act, which was signed into law in 1966. Among other things, it requires the Department of Agriculture to adopt humane regulations for the keeping of animals that are exhibited in zoos and circuses or sold as pets. However, farm animals are explicitly exempted from the definition of “animal.”
While the federal government is mute on farm animal welfare, each state clearly has the power to regulate this issue within its borders. For example, in recent years, nine states have outlawed housing egg-laying chickens in “battery cages” that have been the industry standard for decades. These wire enclosures are so small that the birds cannot spread their wings.
Since many states still permit battery cages, egg-laying chickens’ quality of life depends on the state in which they reside.
It is also clear that the state of California has no power to adopt laws that are binding on the farmers of other states. This case falls between those two points – here’s how:
California’s market power
The California law says that if producers want to sell pork in California, they must raise pigs under conditions that comply with the state’s regulations. Farmers do not have to meet these standards unless they want to sell in California. The same requirement is applied to producers located in California and those based elsewhere, so the law does not directly discriminate between states in a way that would constitute a clear commerce clause violation.
Producers of eggs and veal who sell in California are on track to implement new space requirements for their animals under the law. In my view, however, much of the pork industry appears to be in denial. Instead of working out how to comply, the National Pork Producers Council wants the courts to set the California law aside.
Even as this case moves forward, however, major producers including Hormel and Tyson have said they will be able to comply with the California standard. Niman Ranch, a network of family farmers and ranchers who raise livestock humanely and sustainably, has filed an amicus brief with the Supreme Court supporting California.
Admittedly, pork farmers have invested millions of dollars in their existing facilities, and the system efficiently produces huge quantities of cheap pork. But Californians have taken the position that this output comes at an ethically unacceptable cost to animals in the system.
Harvard filed a Supreme Court brief and released a 60-page report today highlighting the cruel, far-reaching implications of challenging #Prop12.https://t.co/Q4GsaW53dB
— Harvard Animal Law (@AnimalLawHLS) August 15, 2022
Weighing ethics against compliance costs
In considering this case, the Supreme Court will confront two questions. First, does California’s requirement constitute a burden on interstate commerce? A U.S. District Court in California held that the answer was no, and the U.S. 9th Circuit Court of Appeals affirmed this ruling.
There is no magical formula for what constitutes a burden on interstate commerce, so it is impossible to know in advance what the Supreme Court will say about this point of the case. The present court has not addressed this issue.
If the court should decide that the California law does restrict interstate commerce, it then must consider whether the measure meets the “Pike test,” which was set forth in the 1970 ruling Pike v. Bruce Church, Inc.. In this case, the court held that a state law that “regulates even-handedly” must be upheld unless the burden that the law imposes on interstate commerce “is clearly excessive in relation to the putative local benefits.” Put another way, is Californians’ social interest in better welfare for pigs substantially outweighed by the economic cost to producers?
In another 2010 ruling, United States v. Stevens, the court acknowledged that “the prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.” However, the court concluded that depictions of animal cruelty – the plaintiff had been convicted for producing and distributing dogfighting videos – qualified as protected speech under the First Amendment and that this protection outweighed society’s interest in promoting animal welfare.
Is a national standard in the cards?
Many animal welfare questions involve striking this kind of balance between ethical positions and economic consequences in a political context. It is like mixing oil and water, which makes predictions difficult.
The biggest unknown is what views the newest Supreme Court justices will bring to this case. Only four current justices – John Roberts, Clarence Thomas, Samuel Alito and Sonia Sotomayor – were members of the court when it ruled on the Stevens case in 2010. Will today’s court support California’s right to regulate products sold within its borders, or meat corporations’ economic arguments? How many justices will see farm animal welfare as an important public concern?
I expect that the court will uphold the California law – and that if this happens, within five years livestock producers will be proposing national legislation setting uniform welfare standards for farm animals. It is impossible to predict now whether a national law would improve animal welfare or adopt existing poor welfare practices.
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” However, farm animals are explicitly exempted from the definition of “animal.”
If that’s the case, I’d be in favor of all lawmakers and regulators who make that exemption be “explicitly exempted from the definition of ‘human’ ” when it comes to all laws that protect humans.
Seems only fair….
The ultimate distinction between citizens and consumers: citizens keep voting to outlaw wholesale animal cruelty (even in the face of a barrage of industry propaganda) but consumers keep paying for it. It reminds me of Matt Stoller’s arguments of how “the consumer welfare standard” when regulating big business completely misses the point.
Humans have a great capacity for cognitive dissonance. Many (likely most) of those people who keep dogs as pets coddle their pets, sometimes to the extreme. These same people think nothing of eating pork chops, steaks, hot dogs, fried chicken, bacon, etc…And if one were to remind them of factory farm cruelties they will turn away and change the subject.
exactly, and its known how pigs, for one example, are even more intelligent and emotionally sensitive
than dogs (which is alot)… tho even ‘dumb’ beasts merit compassion
not so sure about willfully blind humans
why not consider a plant based diet? — yes, it might be less convenient at first,
but do-able — beans, legumes, oils — plus produce of course
are delicious and can be satisfying once you figure out what works for you
or be an accomplice in this eternal holocaust of factory farms
Or buy artisanal beef at artisanal prices raised in nice outdoor condition with no factory farming involved . . . like I do.
Or like Gabe Brown’s “Nature’s Way Beef” customers do.
Here is one of Gabe Brown’s outlet-projects in that regard.
https://nourishedbynature.us/
We do not eat pork or beef but it is also available from Niman Ranch, where they claim it is sustainably raised.
From a European perspective, this case is being closely observed as it could help to set a useful precedent for introducing mirror clauses in trade agreements, whereby the EU could require that imports of animal products from partner countries adhere to EU animal welfare standards. This is a hot topic for the revision of EU animal welfare standards next year and could be transformational
EUrope “could” require this whether the Roberts Court likes it or not.
It just depends on how economically and culinarily sovereign EUrope feels like being . . . or not.
The manner in which pigs are treated in US factory farms is psychotic.
I think most people have no realization of the horrors pigs experience. Many people do not connect “meat” to “animals.”
Just one of many inconceivably awful acts perpetrated against pigs: when they are transported across the scorching California desert to slaughterhouses, such as the Farmer John slaughterhouse in Vernon, CA (slated to close), they are deprived of food and water days in advance. Many perish during the trip, suffering in agony.
Ghastly in China, also.
https://twitter.com/AbolitionAdam77/status/1576291327788347392?s=20&t=9m4rdWo6sHXu9vh5b8MfMQ
Maybe, but my personal anecdotal experience is that live hogs are sold by the pound, so there is a strong incentive to keep them well fed and watered en route.
My personal anecdotal experience from participating in LA Pig Save, where people hold vigils, wait for the trucks to arrive late at night, and bring and provide water for the pigs, is that many of the pigs perish on route, and the rest are in a horrific state of dehydration and suffering. They are slaughtered that night after they are off-loaded from the trucks.
” It is impossible to predict now whether a national law would improve animal welfare or adopt existing poor welfare practices. ”
Given that national laws for conditions and standards of different things in many areas have been passed to stop more advanced states from adopting more advanced standards, it is actually easy to predict what a national animal welfare law would do. It would adopt the very lowest animal welfare standards the House and Senate and the President could possibly get away with, and then force that standard on the more advanced states and forbid them to legislate anything stronger even for producers within their own more advanced states.
I just made a prediction. If “something passes” into law on animal welfare at the Federal level, I will be proven right or wrong.
If that happens, I can think of a possible way around it. That would be “certified full disclosure” animal agriculture laws in those states which care to adopt them. Under “certified full disclosure”, any producer seeking the “certified full disclosure” status would have to fully disclose every last little jot and tittle of every product he/she uses and every practice he/she employs, down the the very tiniest little thing. He/she would be certified as fully disclosing if the full disclosure certification inspectors certified that he/she was fully disclosing everything about his/her agricultural operation.
Those producers who produced under close-confinement conditions could get the “certified full disclosure” certificate if they fully disclosed that and every other fact about their operation. Those producers who raised their pigs on pasture with shade trees could get the “certified full disclosure” certificate if they fully disclosed that and every other fact about their operation. And customers could decide what conditions they wanted pigs raised under by buying pork raised under whatever conditions those customers believed in. Customers willing to pay the higher price for pigs on pasture under shade trees could pay more for Certified Full Disclosure pork from Certified Full Disclosure pigs on pasture under shade trees, knowing that they would be GETTING pork from pigs on pasture under shade trees.
( And in fact, several decades ago Charles Walters Junior of Acres USA wrote that the most ideal law for agricultural standards in every corner of agriculture would be a Forced Full Disclosure Law, forcing every farmer to describe every jot and tittle of every tiniest little practice in his/her operation, under pain of federal punishment for not doing so. That would even the playing field between ecologically correct producers and petrochemical cancer-juice-based producers. That’s what Charles Walters Junior of Acres USA recommended as the fairest Federal approach.)
Oooo! Oooo!
I’ve just had another predictive thought. It is a conditional type of if-this then-that type of prediction. If this case poses questions which the religiously-based antibortion justices think bear upon issues of Religious Law, then they will try to legislate from the bench in favor of their particular Religious Law concerns in this case.
If the antibortion justices don’t see any particular involvement of specifically Religious Law questions in the issues of this case, then they will defer to whatever Chief Justice Roberts wants. And Chief Justice Roberts wants whatever is good for the upper class and for corporate monopoly business and its political agents.
So IF this becomes a “Roberts” Court type of decision, Roberts will try to get the Court to find for the National Pork Producers Council, and forbid California from setting uniform nationwide standards for how pork to be sold in California will be produced. He moved heaven and earth to find Obamacare constitutional so as to protect the Obamacare giveaway to Big Insura, and he will try to protect Big Porka in the same way.
I believe that the Court will uphold it, as there is no discriminatory burden as the out of state farmers. They are free to sell to the rest of the country if they do not wish treat their animals better. Speaking of country, there is no shortage of space in the US and I really do not see why pigs should be kept in cages in a first place.
I’m quite certain that our ancestors from an uncivilized past would be shocked by such treatment of farm animals. The concept of factory farming of intelligent creatures is shocking a priori and hopefully this will bring us a step closer to returning animals into farm/ yard environment.
I hope your prediction is more correct than mine. If it turns out the way you think, it could be the start of improvements in parts of America’s food and agriculture systems.