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Despite Supreme Court ruling, state regulation of food production remains a big question

A sow nurses her piglets.
U.S. Department of Agriculture
A sow nurses her piglets.

While the U.S. Supreme Court upheld California’s law regulating how much space pigs must have — even for those raised outside the state — the fight appears to be far from over.

Now the pork industry and others in agriculture are waiting to see if more states are likely to follow California and Massachusetts in passing animal welfare laws and whether other judicial and legislative action could stop prevent future state regulations.

The Supreme Court’s 5-4 ruling upholding the law came down in May. Elizabeth Rumley, a senior staff attorney at the National Agricultural Law Center, writes about the farm animal confinement regulations for the center and leads informational presentations about the laws.

“It (the decision) goes well beyond just allowing these types of provisions for pork or for eggs or for anything else,” Rumley said. “It opens the door to restrictions on the sale of goods with many different types of production practices.”

It’s not uncommon for state laws to regulate how animals can be raised within their borders. But in more recent years, states such as Washington, Oregon, Nevada, Colorado and Michigan have enacted animal confinement regulations in the egg industry for products sold in the state, including those imported from other states.

Proposition 12, California’s law regulating the sale of pork, passed as a ballot initiative with about 62% of the vote in 2018. Two years before that, Question 3, a similar ballot measure in Massachusetts, passed with 77% approval.

The use of gestation crates, or metal cages for pregnant sows, are common in the hog industry. While Iowa is the top state for pig production followed by Minnesota and North Carolina, California accounts for less than 1% of the country’s pork sales but 13% of pork consumption.

California’s law requires 24 square feet of space per breeding pig. Some producers have converted their facilities to comply with laws in other states, according to the court's ruling.

Ernie Goss, a regional economist at Creighton University in Omaha, Nebraska, said not all producers will be able to take on those costs.

“That will require some re-engineering of the facilities for those farmers and some farmers are just not going to be able to comply,” Goss said.

At Pig Hill Farms near Lester, Iowa, sows are housed in individual stalls when they're ready to be bred, to keep them from showing aggression towards one another. Ahead of the Supreme Court's decision, owner Dwight Mogler told Harvest Public Media that the stalls are too small under California's law, meaning pork from his operation couldn't be sold in that state.
Katie Peikes
Harvest Public Media
At Pig Hill Farms near Lester, Iowa, sows are housed in individual stalls when they're ready to be bred, to keep them from showing aggression towards one another. Ahead of the Supreme Court's decision, owner Dwight Mogler told Harvest Public Media that the stalls are too small under California's law, meaning pork from his operation couldn't be sold in that state.

Goss said the law will likely have more immediate and larger impacts in California. Economists at the University of California-Davis estimate prices for pork in California will rise about 25 cents per pound once the law is fully enforced, starting Jan. 1, 2024.

Goss said the effects on producers and consumers will depend on if more states adopt similar policies.

“Essentially, they’ll have increasing impacts as time goes on,” Goss said. “And certainly, the real impacts come if other states adopt the same policies, and that's where the significant impacts will spill over into consumers nationwide, spillover into producers nationwide. So that’s the real key going forward.”

A lawsuit and potential legislation

Since the court’s Prop 12 ruling, a coalition of pork producers is challenging the Massachusetts law in federal court. The suit has the support of 13 states including Iowa, Oklahoma, North Dakota, South Dakota, Nebraska and Missouri.

Rumley said the question in the lawsuit is whether the statute violates the Commerce Clause, the same question the Supreme Court considered when it decided to uphold California’s Prop 12.

“In other words, the case will be won or lost on whether Massachusetts’ Question 3 is different enough from California’s Prop 12 to fall outside the SCOTUS decision,” Rumley said in an email.

Some agriculture groups have concerns that the Massachusetts law will interfere with shipment of pork through the state. A fact sheet from the Massachusetts’ Department of Agricultural Resources stated ongoing litigation will “determine if and when any rules would apply to transshipped whole pork meat.”

Wayne Pacelle, president of Animal Wellness Action and the Center for Humane Economy, has been involved in initiating ballot measures for regulations on animal confinement. He said Massachusetts' law is a settled legal issue because the Supreme Court already ruled on Prop 12.

“So, I consider it to be a completely frivolous case, and we haven't even felt the need to intervene because it's such a clearly settled matter," Pacelle said.

Because the National Pork Producers Council is not involved in the lawsuit, Michael Formica, the council’s chief legal strategist, said he cannot comment on the case. But he said the SCOTUS decision on California's Prop 12 was disappointing.

“The industry is already going through maybe the worst economic crisis, you know, in decades and certainly in a number of generations,” Formica said. “And so layered on top of that is the challenge that the farmers are facing: ‘How do we sell? How do we produce pigs and pork to sell into these two states?’”

Some federal lawmakers have responded to shifting state regulations. In June, Rep. Ashley Hinston, R-Iowa, introduced the Ending Agricultural Trade Suppression – or EATS Act – in the U.S. House, and Sen. Roger Marshall, R- Kansas, introduced the bill in the Senate.

The act is intended to prevent states and local governments from regulating preharvest production and distribution of ag products in interstate commerce.

But back in August, 171 members of Congress signed a letter of opposition to the EATS Act, and in November, 30 law professors from universities like Harvard University signed another letter of opposition, saying the act could invalidate hundreds of state laws.

Congressman G.T. Thompson, the chair of the House Committee on Agriculture, said the EATS Act is dead as a piece of legislation. While at a Farm Bill discussion in Oklahoma City, the Republican Congressman said he wants to see a different legislative response.

“There has to be something in the farm bill,” he said, “that makes sure that interstate commerce is regulated by at the federal level, that we don't create trade wars, that we don't result in food shortages, we don't result in unaffordable food for the American families.

Anna Pope is a reporter at KOSU. This story was produced in partnership with Harvest Public Media, a collaboration of public media newsrooms in the Midwest. It reports on food systems, agriculture and rural issues.

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