Washington Evening Journal
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Supreme Court ruling rattles pork producers
Proposition 12 meets praise from advocates, disappointment from farmers
WASHINGTON — The United States Supreme Court announced a 5-4 decision on May 11 to uphold Proposition 12, a California law that bans the sale of unprocessed pork from sows — mother pigs — that are kept in maternity pens, also called “gestation crates” by critics of the practice.
In an opinion for the majority, Justice Neil Gorsuch said the law did not violate constitutional rules for interstate commerce, since it only governs sales within California.
“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” he wrote.
Others on the high court disagreed. Justice Brett Kavanaugh filed a dissenting opinion, arguing that California’s hand on 13-17% of the domestic pork-buying market made its rule effectively a requirement for other states, something he considered a violation of the Founding Fathers’ intent.
“California’s requirements for pig farms and pork production depart significantly from common agricultural practices that are lawful in major pig-farming and pork-producing States,” he said. “California’s law … may foreshadow a new era where States shutter their markets to goods produced in a way that offends their moral or policy preferences — and in doing so, effectively force other States to regulate in accordance with those idiosyncratic state demands. That is not the Constitution the Framers adopted in Philadelphia in 1787.”
Speaking on a phone call from Washington, Iowa, JWV Pork Co-owner Heidi Vittetoe said she shared Kavanaugh’s constitutional concerns, but had additional anxiety about the ruling’s impact for the pork industry.
As a manager for a roughly 15,000-sow operation, Vittetoe said she worried that meatpackers would start to shun producers utilizing gestation crates, which are used for anywhere from 60-80% of the nation’s sows, according to a study from the Humane Society of the United States.
“Packers may say, ‘All of the pigs have to be Prop-12 compliant, because it’s too confusing to try and separate the ones that were raised under X conditions versus Y conditions,’” she said. “Packers need a supply of pigs that meet the needs of their customers. And so it does require … essentially, adjudication of the supply chain to meet the needs of both the end customer as well as the intermediate customers.”
Vittetoe is hardly alone in her reaction.
The Supreme Court’s ruling drew criticism from numerous voices in the swine industry, including the National Pork Producers Council.
“Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation,” the NPPC said in a statement. “We are still evaluating the Court’s full opinion to understand all the implications. NPPC will continue to fight for our nation’s pork farmers and American families against misguided regulations.”
Animal rights advocates had the opposite response.
Diane Rosenberg is Executive Director and President of Jefferson County Farmers and Neighbors Inc., a nonprofit that opposes confined animal feeding operations. She said she was thrilled to hear news of the ruling, and has her fingers crossed that others might follow California’s lead.
“If you’re getting more farmers starting to raise animals more humanely, then it starts to bring down the price, over time, of what’s now considered a niche market,” she said. “This is not going to be an overnight deal, it’s a step … I would hope this would open the door for more forward-thinking states, people with more predisposition to caring about animal welfare.”
Rosenberg said she hoped the regulation would be a win for small farms and a step toward much broader industry reforms.
While she acknowledged the likelihood of a strain on other farmers, Rosenberg said integrators and contractors should step up and help growers with the cost of transitioning.
“What we really need is an agricultural system that puts the animals back on the land where they rightfully belong, where they can be raised and where they’re happier,” she said. “It certainly creates more of a market for these farmers that are raising hogs that way, and can attract more farmers to do that.”
Brenneman Pork, one of the largest family-run swine operations in the country, has taken steps to build its own Proposition 12-compliant facility in Washington County, although the site is not yet certified by California regulators.
Owner Rob Brenneman — who is also a member of the National Pork Producers Council board of directors — said he disagreed with Rosenberg’s framing of the ruling as a win for compliant farmers.
“Nobody that has a Prop 12 facility was really wanting Prop 12,” Brenneman said. “It’s certainly not a win, because the cost that it took to make that just barely breaks even on the other side, but it does continue to hopefully provide product to go into California. But every pork producer I know that has done that … still wants the regulation to not happen.”
The question of animal welfare is also contentious.
Some studies say the use of maternity stalls is harmful to animals. The American Veterinary Medical Association reports that stalls allow sows to stand up and lie down, but prevent them from turning around or “performing behaviors such as communal lying and movement to preferred microenvironments.” The organization also says that sows kept in stalls are more likely to contract pressure sores, ulcers, and abrasions.
Brenneman, however, said gestation crates made caring for the animals easier, and by extension helped to ensure the process was humane.
He said maternity stalls isolated animals for individual treatment and feeding, and reduced the training required to provide high-quality animal care. Corralling sows into such a stall when they need medical treatment is already a norm for many producers, although doing so requires a veterinarian’s directive, and a separate “hospital pen” to hold animals before they’re reintroduced to their healthy peers.
“It’s not as easy to manage the pens as it is the stalls,” he said. “It is manageable, it’s just not as easy. It takes a little more training, a little more coaching to find the right animal that needs to be treated. Where, if it’s in a stall, you look at them every day. You know what’s going on with them … (pens) create more movement, more aggravation, more time, and therefore more opportunity to not do it right.”
Brenneman said he was also skeptical of the findings and goals of various animals rights advocates involved in the debate.
“Extremist Groups do not want animal agriculture to exist,” he said. “They have lots and lots of money behind them with their sole mission to eliminate us, so I encourage everyone in agriculture to band together and keep rural America in the hands of farmers.”
The law is scheduled to take effect July 1, but its legal battle may not be over. Eldon McAfee, an attorney who represents the Iowa Pork Producers Association, said the Supreme Court ruling put another challenge to the law on the table.
That other case was filed by IPPA, not the National Pork Producers Council. It contains several different allegations against Proposition 12 from those considered in the May 11 ruling, including questions on Proposition 12’s implications for the Constitution’s Criminal Due Process clause, Privileges and Immunities clause, and discrimination under the Dormant Commerce Clause. The lawsuit also alleges a violation of the federal Packers and Stockyards Act of 1921.
Although the Iowa group’s lawsuit was filed before the NPPC’s legal challenge, it was put on hold while courts deliberated the latter. With that case now resolved, IPPA plans to advance its own appeal according to a joint report filed by the organization and other parties in the case on May 18.
If the court takes up that appeal’s advancement, its proceedings may delay Proposition 12’s implementation, or even potentially give new grounds to strike down the California law according to McAfee.
“This lawsuit raises different claims, that’s why it was filed,” McAfee said. “The U.S. Supreme Court has made its decision on the claims that were presented to it, (but) this lawsuit contains different claims … our hope is obviously that the Court rules in our favor on these claims, and finds Prop 12 to be unconstitutional and in violation of the Packers and Stockyards Act.”