High Court Animal Cruelty Case May Affect Laws Nationwide

California's Proposition 12, also known as the Prevention of Cruelty to Farm Animals Act, was passed by California voters on Nov. 6, 2018.[1]

It establishes new standards for the confinement of certain farm animals and bans the sale of certain products from such animals not raised under those standards.

The confinement standards affect not only farms situated in California, but also any farms and businesses trying to sell covered products into California.

Further, a number of states have followed California's footsteps and developed similar animal husbandry standards.

That said, Proposition 12's wide reach and ambiguities has led to numerous legal challenges that have called into question the viability of the standards.

The issue has even reached the U.S. Supreme Court, whose pending decision may have a far-reaching impact on the future of Proposition 12 and similar standards in other states.

Proposition 12

By way of background, in 2008, California voters passed Proposition 2, which prohibited the confinement of breeding pigs, calves raised for veal, and egg-laying hens in a manner that did not allow them to turn around freely, lie down, stand up and fully extend their limbs.[2]

In 2018, California voters approved new requirements for housing covered farm animals under Proposition 12.[3] Proposition 12 prohibits farm owners and operators from confining covered animals —breeding pigs, egg-laying hens and veal calves —in a cruel manner. It further prohibits business owners and operators from knowingly engaging in the sale of shell eggs, liquid eggs, whole pork meat or whole veal meat that were produced from covered animals that were, in turn, confined in a cruel manner.

Under the statute, "confined in a cruel manner" is defined as:

• Confining a covered animal in a manner that prevents it from lying down, standing up, fully extending its limbs or turning around freely; and/or
• Confining covered animals with less than their designated amount of usable floor space, which varies depending on the animal.[4]

Proposition 12 became effective on Dec. 19, 2018. The provisions pertaining specifically to egg-laying hens and calves raised for veal were intended to go into effect on Jan. 1, 2020. The provision pertaining to breeding pigs was intended to go into effect on Jan. 1, 2022.

While the egg and veal provisions went into effect as planned, the breeding pig provision is currently unenforceable as a result of ongoing litigation.

Current Status of Proposition 12

Regulations

Under the language of the statute, the California Department of Food and Agriculture and the California Department of Public Health were to promulgate regulations for the implementation of Proposition 12 by Sept. 1, 2019.[5]

In fact, the regulations were published in September —more than two years after the statutory deadline.[6]

The delay in the regulations made it difficult for industry to interpret the requirements under the statute. This was the principal argument in California Hispanic Chambers of Commerce v. Ross in the Sacramento County Superior Court in January, where industry petitioners argued that without final regulations, they should not be subject to penalties associated with sales of nonconforming whole pork meat.

Petitioners asked the court to:

• Declare the square footage requirement unenforceable absent final regulations;
• Delay enforcement of the same requirements until 28 months post-publication of final regulations; and
• Bar the CDFA and CDPH from enforcing the square footage requirements for 28 months post-publication.

The court determined that the delay in enforcement was warranted but disagreed that a 28-month delay was appropriate. Thus, the court ordered an enforcement delay on whole pork meat sales for six months after the enactment of final regulations.[7]

Now that the regulations have been finalized, the enforcement discretion will expire in early 2023.

U.S. Supreme Court

The pork provision continues to face legal obstacles and has made its way to the U.S. Supreme Court.

In National Pork Producers Council v. Karen Ross, the plaintiffs argued that the pork provisions in Proposition 12 reached beyond California, thereby unconstitutionally interfering with interstate commerce. Lower courts disagreed and upheld the standards.

The industry group plaintiffs appealed, and in March the Supreme Court agreed to hear the case.

Many parties submitted amicus briefs to the court, including the Biden administration, which argued that California does not have a legitimate interest in protecting the welfare of animals outside of its borders and that it may not extend its police power beyond its jurisdictional bounds.[8] The case was finally heard by the Supreme Court on Oct. 11, and the ruling is due to be released next summer.

Conclusion

The court's decision could have a profound impact on the future of Proposition 12, and on the similar standards that have been enacted in states such as Colorado, Ohio, Oregon, Washington, Massachusetts and Rhode Island.[9]

More broadly, if the court finds that Proposition 12 infringes on the commerce clause, it could affect other state laws across the U.S. that rely on a similar framework.[10] Indeed, it could set a precedent that would invite legal challenges to state and local policies on a variety of matters.

For example, a decision in favor of the pork producers could affect state policies on renewable energy standards, state labeling requirements for foods or packaging containing certain chemicals —e.g., California's Proposition 65 —and state standards on the recyclability of post-consumer content of containers.[11]

These state standards have significant effects on out-of-state parties and would be at risk if the pork producers' arguments on the dormant commerce clause prevail.[12]

California's Proposition 12 has had a rippling effect across the country and will undoubtedly continue to make waves once the Supreme Court decision is announced. Just as important, it has focused national attention on the conditions under which covered animals are raised. Regardless of the decision of the Supreme Court, that attention will likely trigger further animal welfare regulations.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Codified at California Health & Safety Code § 25990-25994.

[2] See Proposition 2 statute, available at https://lao.ca.gov/ballot/2008/2_11_2008.aspx, and further information at https://ballotpedia.org/California_Proposition_2,_Farm_Animal_Confinement_Initiative_(
2008).

[3] See Voter Registration Guide for 2018, available at https://repository.uchastings.edu/cgi/viewcontent.cgi?article=2377&context=ca_ballot_props.

[4] California Health & Safety Code § 25991(e).

[5] California Health & Safety Code § 25993(a).

[6] See California Code of Regulations 3 CCR § 1320-1326, available at https://www.cdfa.ca.gov/AHFSS/pdfs/animal_confinement_adopt_text.pdf.

[7] See Disposition for Petition for Writ of Mandate, available at https://www.meatinstitute.org/ht/a/GetDocumentAction/i/201388.

[8] See Brief for The United States as Amicus Curiae Supporting Petitioners, available at https://www.supremecourt.gov/DocketPDF/21/21-468/228387/20220617195711500_No.%2021-
468%20Natl%20Pork%20Producers%20v.%20Ross%20Final.pdf.

[9] For example, in Massachusetts Restaurant Association et al. v. Healey, where plaintiffs argued that the Massachusetts confinement law violated the dormant commerce clause, the parties agreed that the Supreme Court's decision on Proposition 12 in National Pork Producers v. Ross could generate controlling law that will clarify, and potentially govern, the legal issues in the Massachusetts case.

[10] See e.g., Potential Reverberations of Pork Producers' Commerce Clause Challenge Before the Supreme Court, Brooks McCormick Jr. Animal Law & Policy Program Harvard Law School, August 2022, available at https://animal.law.harvard.edu/wp-content/uploads/ALPP-Prop-12-Report.pdf.

[11] Id.

[12] Id.