Hey SCOTUS, Leave Those Pigs Alone: The Looming Impact of National Pork Producers v. Ross
Jonathon Simmons
USDA Organic. Free Range. Non-GMO Verified. Animal Welfare Approved. The list goes on for food labels that assure the general public that their food products are of the highest quality, both substantively and morally. The movements to improve clean eating and ensure meat consumption without animal cruelty have been successful in changing the options available for all consumers who seek it out. But, how much of a burden can the public place upon the meat industry before it becomes unconstitutional? This question has come to a head in National Pork Producers Council v. Ross, a case before the Supreme Court regarding the living conditions of animals housed in concentrated animal feeding operations (CAFO’s). [1]
In 2018, California voters overwhelmingly passed Proposition 12, which prohibits farmers from selling pork, veal, and eggs in California that come from animals “confined in a cruel manner.” [2] More specifically to this case, Proposition 12 mandated that California would ban any CAFO-produced pork (among other forms of meat) that included breeding pigs and their immediate offspring in areas with less than 24 square feet of usable floor space per pig. [3] As expected, there has been significant pushback from the National Pork Producers Council who cite to the burden placed upon small farms to ensure their compliance. Some estimates have been in the hundreds of millions for how much such a move would cost the pork industry, despite two of the nation’s leading pork producers in Hormel and Tyson Foods publicly stating the lack of burden this compliance would truly be. [4] This discourse ultimately disregards the intent of the Proposition, which is to ensure animal rights and stop animal cruelty in meat consumption. As described by Hemi Kim, a writer at Sentient Media, the current living conditions for swine that produce said pork from CAFOs is “packed into a confined space, often with little or no access to the sun or fresh air. Animals are born, fed, watered, and inseminated en masse through automated or highly mechanized processes.” [5]
The issue that ultimately the Court must decide on, however, is whether Proposition 12 unduly burdens interstate commerce under the Dormant Commerce Clause. The Dormant Commerce Clause is an implied restriction created by the Commerce Clause of the U.S. Constitution that limits states' ability to burden or discriminate against interstate commerce. The brief filed by the National Pork Producers Council brings forward an argument that states the economic impact on farms outside of California is too great — as it is impossible to know where cuts of pork are ultimately going to — making it imperative that all farms would have to spend thousands of dollars to comply with the California Proposition. [6] This burden would be placed upon the consumer, unduly burdening them as well. The question truly becomes whether California residents wanting better protections against animal cruelty deserve the right to enact a state law that will raise the price of bacon in a state like Florida.
California has a strong argument rooted in a principal held by Justice Antonin Scalia in the 1987 case of CTS Corp. v. Dynamics Corp. of America. [7] Scalia states that the question of whether a particular state law imposes a burden on commerce that is “clearly excessive in relation to the putative local benefits” is the sort of inquiry that “is ill suited to the judicial function and should be undertaken rarely if at all.” [8] The concept as applied to Proposition 12 would hold that the putative local benefit for Californian residents of ensuring lack of animal cruelty is clearly excessive when the potential cost passed down to consumers is considered. But, as Scalia notes, it is ill suited for the Court to undertake this fact-finding mission and should leave it to the Congress or individual state legislatures. [9] Further, as the Court has previously held in several cases relating to interstate commerce, any law passed or action taken by an individual state will inevitably have an adverse effect on interstate commerce at some point given the nature of America today compared to even just 40 years ago. [10] This concept leads to what could be at stake the most in this decision: the power for the Court to scrap the effectiveness of any state to self-legislate in the interests of their citizens.
In Pike v. Bruch Church, the Court held that if a state law has, “a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits”. [11] It is without any doubt that Proposition 12 did good to uphold a legitimate public interest, as it passed by a near 35% margin; the issue that will be at issue in this analysis is whether any burden is deemed excessive. In the opinion of animal rights activists, myself included, there is no burden that can be deemed too excessive in order to stop the atrocities of CAFO’s.
In summation, the decision that comes down from Ross will have effects on both animal rights and the rights of states to regulate themselves through legislation. Should the Court rule in favor of the National Pork Producers Council, it will have long lasting effects that will only be redressable through congressional legislation or constitutional amendment.
About the Author
Jonathon Simmons is a first-year member on Volume 14. He graduated from the University of Louisville with a Bachelor’s degree in Criminal Justice. Jonathon currently works for a local firm in plaintiff employment law matters. After graduating, Jonathon would like to work in criminal defense or union-side labor law. In his free time, Jonathon enjoys hiking with his dogs and golfing on the weekends.
References
[1] National Pork Producers Council & American Farm Bureau Federation v. Karen Ross, No. 21-468 (9th Cir. filed Sept. 27, 2022).
[2] Yvette Borja, How a Supreme Court Case About Pig Farms Could Shake Up the Fight For Abortion Access, Balls and Strikes (Oct. 12, 2022), https://ballsandstrikes.org/scotus/national-pork-producers-council-v-ross-oral-argument/.
[3] California Proposition 12, Farm Animal Confinement Initiative, Ballotpedia (2018), https://ballotpedia.org/California_Proposition_12,_Farm_Animal_Confinement_Initiative_(2018).
[4] Hormel Foods Company Information About California Proposition 12, Hormel Foods (Jan. 1, 2022), https://www.hormelfoods.com/newsroom/news/hormel-foods-company-information-about-california-proposition-12/.
[5] Hemi Kim, A Closer Look at Factory Farming’s Environmental Impact, Sentient Media (Oct. 22, 2021), https://sentientmedia.org/factory-farming-environmental-impact/.
[6] Ian Millhiser, The surprisingly high stakes in a Supreme Court case about bacon., Vox (Oct. 9, 2022), https://www.vox.com/policy-and-politics/2022/10/9/23392575/supreme-court-national-pork-producers-ross-bacon-dormant-commerce-clause.
[7] CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 107 S. Ct. 1637 (1987).
[8] Id.
[9] Id.
[10] Pike v. Bruce Church, 397 U.S. 137, 90 S. Ct. 844 (1970)
[11] Id.