What the Supreme Court’s Prop 12 decision means to farmers

pigs in a nursery
Pigs in a barn in northwest Ohio. (Farm and Dairy file photo)

The U.S. Supreme Court on May 11 upheld California’s right to forbid the sale of pork in the state unless farmers abide by its animal welfare rules.

The ruling in favor of California’s Proposition 12, which requires more space for breeding pigs, will “increase prices for consumers and drive small farms out of business,” said Scott Hays, president of the National Pork Producers Council, one of the groups that brought the case to the highest court in the land.

A majority of the high court — Justices Neil Gorsuch, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Clarence Thomas — agreed that lower courts had correctly dismissed pork producers’ challenge to the law, but the justices were not united in their reasoning.

Chief Justice John Roberts and Justices Samuel Alito, Brett Kavanaugh and Kentanji Brown Jackson dissented, saying the law should have been kept alive and the case should have been sent back to lower courts for more work.

Farm groups argued the production standards arbitrarily laid out by Prop 12 would impact primarily farms outside of California, as most hogs are raised elsewhere in the country, thus violating the U.S. Constitution. They also said it would cost producers hundreds of millions to build or retrofit compliant facilities, likely increasing the price of pork nationwide.


Pork producers were joined by a chorus of outcry from other agricultural groups, as well as several members of Congress, including Sens. Chuck Grassley and Joni Ernst, both R-Iowa, and Sen. John Boozman, R-Arkansas.

“Prop 12 remains a costly burden to producers and provides no benefit to animals or consumers,” said Julie Anna Potts, president of the North American Meat Institute.

Hays said in a call with reporters May 12 that the National Pork Producers Council is disappointed in the ruling and the group is still evaluating the court’s full opinion.

Hays, a Missouri hog farmer, said doesn’t plan to change his operation to comply with Prop 12, but he wonders how long he’ll have a market if other states begin to require such rules. He was also concerned about the welfare of pigs moved to group housing. One of the industry’s arguments against requiring sows to be in group housing was that it would jeopardize sow safety.

“The thing is, sows are bullies,” he said. “There’s going to be a boss sow.”

Prop 12 is set to go into effect July 1. Michael Formica, National Pork Producers chief legal strategist, said the group is working with California officials to determine what implementation looks like so that there are “minimal disruptions to the marketplace.”

Formica was also concerned about the precedence this decision set beyond pork, that it allowed one state to push its moral standards on another state.


In 2018, California voters passed Proposition 12, a ballot initiative developed by the Humane Society of the United State that amends the California Health and Safety Code to prohibit confining breeding pigs, egg-laying hens and veal calves “in a cruel manner.” According to California, this means female pigs 6 months of age or older must have at least 24 square feet of usable floor space per animal, to be able to turn around and lie down. The regulation also prohibits the sale of pork from other states that did not follow this space requirement.

The National Pork Producers Council and American Farm Bureau Federation sued, arguing that Prop 12 violated the dormant commerce clause, which says that because Congress has power over interstate commerce states cannot discriminate against or unduly burden interstate commerce.

California has less than 1% of the nation’s breeding pig herd but consumes about 13% of pork eaten in the U.S., so Prop 12 would primarily impact other states, the farm groups argued. About three-quarters of American farmers with breeding hogs keep them in individual pens that would not be compliant with California’s rules.

Pork producers also said that the way the pork market works, with cuts of meat from various producers being combined before sale, it is likely all pork would have to meet California standards, regardless of where it is sold. Complying with Prop 12 could cost the industry $290 million to $350 million, they said.

The Biden administration urged justices to side with the farm groups, telling the court in written filings that Prop 12 would be a “wholesale change in how pork is raised and marketed in this country” and that it has “thrown a giant wrench” into the nation’s pork market.

Supreme Court decision

During arguments in the case in October, justices underscored the potential reach of the case. Some worried whether greenlighting the animal cruelty law would give state legislators a license to pass laws targeting practices they disapprove of, such as a law that says a product cannot be sold in the state if workers who made it are not vaccinated or are not in the country legally. They also worried about the reverse: How many state laws would be called into question if California’s law were not permitted?

In the end, Gorsuch said in his opinion that the pork producers challenging the law were inviting the justices to “fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders.”

“We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” he wrote. Pork producers should instead turn to Congress for relief from state laws they dislike.

(©2023 Farm and Dairy. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. AP contributed to this report.) 


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Rachel is Farm and Dairy's editor and a graduate of Clarion University of Pennsylvania. She married a fourth-generation farmer and settled down in her hometown in Beaver County, where she co-manages the family farm raising beef cattle and sheep with her husband and in-laws. Before coming to Farm and Dairy, she worked at several daily and weekly newspapers throughout Western Pennsylvania covering everything from education and community news to police and courts. She can be reached at rachel@farmanddairy.com or 724-201-1544.



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