December 20, 2023
Nat’l Pork Producers Council v. Ross, 598 U.S. 356 (2023) (Gorsuch, J.)
Response by Joan Schaffner, Katherine Hessler, and Iselin Gambert
Geo. Wash. L. Rev. On the Docket (Oct. Term 2022)
Slip Opinion | SCOTUSblog
National Pork Producers Council v. Ross: A Win for Farmed Pigs
The Supreme Court took up the question of whether California has the right to ban the sale of products derived from animals raised in cruel conditions even when produced outside of the state and in May 2023, the Court upheld the Ninth Circuit’s ruling that California has the right to regulate to protect animal welfare even when the regulation has an impact on interstate commerce.1 This Response examines the need for welfare regulation for farmed pigs, the contested legislation, the Court’s decision, and potential implications.
Table of Contents
Introduction: A Pig’s Life in the U.S. Animal Agriculture Industry
The average American will eat roughly eleven cows, twenty-nine pigs, thirty sheep, eighty turkeys, 2,400 chickens, and 4,500 fish in their lifetime.1 That adds up to a staggering number of animals: at the time of this writing, over fifty-three billion animals in the United States have been killed for food this year alone.2
Virtually all animals we eat spend every moment of their lives from birth to death in the vast animal agriculture industry—an industry that is simultaneously highly regulated yet beyond the reach of most animal welfare and anti-cruelty laws. In recent years, the plight of animals being raised for food has become more widely known, as has their capacity to suffer.3 However, there is no federal statute setting even the most minimal standard of care for these animals during their lives in the animal agriculture industry.4 Likewise, most state anti-cruelty laws typically exempt commonly accepted animal husbandry practices, such as tail docking and teeth clipping, despite overwhelming evidence that they cause extreme pain and suffering.5 The lived experience of these animals is often shrouded in mystery, with so-called “ag-gag” laws in several states making it a crime for people to take photos or videos inside animal agriculture facilities.6 What is known about the conditions animals face in our food system, however, makes clear that the goals of maximizing profits and efficiency are often placed higher than animals’ quality of life and welfare considerations.
To understand how the animal agriculture industry prioritizes profits over animal welfare, take pigs for example. Pigs are the third most commonly slaughtered animal for food in the world, following chickens and fish.7 Almost 129 million pigs were slaughtered in the United States in 2021 alone.8 Pigs are widely regarded as one of the most intelligent animal species, as evidenced by their complex social lives. As socially complex as dolphins, whales, and primates,9 pigs display empathy or “emotional contagion,” prefer to maintain tidy living spaces with distinct areas for urination and defecation, feel pain and suffer, and more.10
Pigs’ natural life expectancy is roughly twenty years, but none will live anything near that long in the animal agriculture system.11 The vast majority are slaughtered for meat at roughly six months of age, denying them 97.5% of their natural lifespans.12 Female breeding pigs, known as “sows,” are allowed to live for roughly three to five years, producing four to seven litters of piglets before they are considered no longer commercially viable for reproduction and slaughtered.13
During their three to five year lifespan in the animal agriculture industry, sows’ freedom of movement is extremely restricted in a system developed by the animal agriculture industry to “help hog farmers run the most efficient animal feeding operation possible.”14 From the time they reach sexual maturity at roughly six months of age, they spend virtually the entirety of the rest of their lives confined in so-called “gestation crates”—metal enclosures so small that the sows confined inside them cannot turn around, much less interact with other pigs and maintain the types of complex social relationships that they would naturally seek out.15
Sows are typically artificially inseminated and returned to the gestation crates within just a couple of weeks of giving birth—despite evidence that this lowers their productivity and increases their mortality.16 This cycle of pregnancy and extreme restriction of movement continues for the sows’ entire life. These conditions are not how pigs would live in the wild and are not how they were raised traditionally.
Animal advocates have long condemned the use of gestation crates and other aspects of pig farming that prevent pigs from being able to experience their natural behaviors.17 Decades of work by animal advocates has led to some progress. In the United States, nine states have banned gestation crates: Michigan, Colorado, Arizona, California, Florida, Oregon, Massachusetts, Maine, and Rhode Island.18 Ohio passed a gestation crate ban that will take effect in 2026.19 Use of gestation crates will be entirely banned in Europe by 2027.20 New Zealand, Canada, and Australia are also “reducing or phasing out” use of gestation crates.21
The Complicated History of Animal Advocacy in California
California animal advocates have pursued a variety of ballot initiatives, legislative efforts, and lawsuits to improve the welfare of animals, including pigs, raised for food in the vast animal agriculture industry.22 In the absence of government action, California voters—like others across the country23—have passed initiatives that aim to limit some of the most egregious conditions for farmed animals.
In 2008, California’s Proposition 2 (“Prop 2”), which became the Prevention of Farm Animal Cruelty Act, was passed by a 63% majority vote.24 It went into effect in 2015 and prohibits, in the state of California, the use of tethering or veal crates, battery cages, and gestation crates that prevent animals from lying down, standing up, fully extending their limbs, or turning around freely.25 In 2010, California’s Assembly Bill 1437 (“AB 1437”) was passed, requiring that shell eggs sold in the state must also meet the Prop 2 requirements for the chickens who produce those eggs.26 It also went into effect in 2015.27
Egg producers around the country brought cases challenging both Prop 2 and AB 1437. Constitutional vagueness challenges failed,28 as did a Commerce Clause challenge raised by six states asserting that as a result of AB 1437, egg producers in their states needed to increase production costs or stop selling eggs in California.29 The Ninth Circuit agreed with the district court that the six states did not have standing because they were asserting the interests of a subset of egg producers rather than the interests of their states or citizens, and that the law is not discriminatory because it treats in-state and out-of-state eggs the same.30 Missouri Attorney General Josh Hawley appealed the decision to the Supreme Court in 2017, which declined to hear the case.31
In 2014, the King Amendment, introduced by Representative Steve King of Iowa, proposed to amend the federal Farm Bill to include a provision nullifying California’s AB 1437 and other state laws relating to animal welfare, food safety, and environmental protection, among other things.32 The amendment was not successful.33 In 2018, Representative King unsuccessfully tried again to attach this amendment to the Farm Bill.34 In 2021, Representative Ashley Hinson of Iowa and Senator Roger Marshall of Kansas35 introduced a new version of this amendment titled the Exposing Agriculture Trade Suppression Act (“EATS Act”), which did not get out of committee.36
In 2018, a broad coalition of animal advocacy groups, led by Prevent Cruelty California and the Humane Society of the United States, brought Proposition 12 (“Prop 12”) to California voters.37 Designed to amend the California Health and Safety Code, the official ballot summary of Prop 12 was as follows:
- Establishes new minimum space requirements for confining veal calves, breeding pigs, and egg-laying hens.
- Requires egg-laying hens be raised in cage-free environment after December 31, 2021.
- Prohibits certain commercial sales of specified meat and egg products derived from animals confined in a noncomplying manner.
- Defines sales violations as unfair competition.
- Creates good faith defense for sellers relying upon written certification by suppliers that meat and egg products comply with new confinement standards.
- Requires the State of California to issue implementing regulations.38
Advocates of Prop 12 pointed out that the highly restrictive living conditions of pigs and other animals in the animal agriculture industry also creates public health concerns for humans.39 A United Nations Environmental Programme’s report notes that unsustainable agricultural intensification, including crowded conditions, increases the risk of disease and disease transmission to humans and other animals.40 In his amicus brief to the Supreme Court, Dr. Jim Keen highlighted additional public health concerns, noting that “risks from producing and consuming industrial pork are zoonotic foodborne bacteria, especially Salmonella pork contamination; antibiotic-resistant bacteria and antibiotic-resistant genes in live pigs; and contaminants in pathogenic and commensal bacteria driven by swine industry antimicrobial usage.”41 In order to reduce these risks, pork producers that employ intensive confinement practices generally use antibiotics that contribute to the problem of antibiotic resistance, reducing the effective medication available to treat human disease.42 These are some of the concerns California voters were legitimately trying to reduce with the passage of Prop 12.
Perhaps unsurprisingly, the Association of California Egg Farmers (“ACEF”) and National Pork Producers Council (“NPPC”) opposed Prop 12, arguing that it would lead to higher food prices and meat and egg shortages.43 Perhaps more surprisingly, a number of animal advocacy organizations—including Humane Farming Association, PETA, and the Friends of Animals—also opposed Prop 12.44 PETA’s main argument was that “while Prop 12 does reduce the inherent cruelty within the animal agriculture industry, the legislation only allows for a few more feet of space for animals”—24-square-feet of usable space for breeding sows.”45 According to Tracy Reiman, PETA’s Executive Vice President, “[t]hese absolutely meager space requirements mean little to the animals who are condemned to filthy, crowded sheds; subjected to mutilations and amputations, including of their toes, testicles, and beaks; and sent to slaughter without ever touching grass or experiencing a natural life.”46 Moreover, some animal advocates and scholars have pointed out other limitations of the protections Prop 12 is ostensibly designed to offer—specifically that many pork products, representing about 42% of all pork products purchased within the state, are not covered under the law.47
Nevertheless, the proposition made it onto the ballot in California and passed by almost 63% of the vote.48 Prop 12 required that all eggs (shell and liquid), veal, and pork sold in the state—regardless of where it was produced—meet California standards relating to confinement of farmed animals including minimum space requirements.49 Prop 12 applies particularly to veal calves, pregnant sows, and egg laying chickens, because these animals are typically caged in extremely small spaces that do not allow for the animals’ natural movement.
By requiring that animals be able to stand up, lie down, fully extend their limbs, and turn around freely, Prop 12 essentially bans certain methods of confinement, including gestation crates for pregnant sows, battery cages for egg laying hens, and veal crates for baby cows. Egg producers, perhaps because of the earlier litigation and the subsequent decision of many to transition to cage free production, did not legally challenge Prop 12. Nor did the veal producers. Both industries are on track to meet the requirements of Prop 12 when it goes into effect on December 31, 2023.50 However, the National Pork Producers Council and others did challenge the constitutionality of the new law as it applies to pigs.
Soon after Prop 12’s adoption, the National Pork Producers Council and others filed suit, claiming the law impermissibly burdens interstate commerce and alleging that “‘compliance with Proposition 12 will increase production costs’ by ‘9.2% . . . at the farm level.’”51 Plaintiffs estimated that 1,500 of the 8,000 breeding pigs in California are used for commercial breeding, producing 30,000 offspring a year.52 However, the offspring of 673,000 sows are required to meet the demand for California’s pork consumption, which makes up 13% of the national market.53 Thus, the majority of the compliance costs will be incurred by out-of-state producers. Notably, plaintiffs concede that 28% of the industry has already converted to some form of group housing for pigs.54 In fact, Perdue Premium Meat Company (“PPMC”), on behalf of over 600 independent hog farmers raising pigs in compliance with Prop 12, filed an amicus brief in support of the state of California.55 PPMC explained it submitted the brief “to offer an alternative industry voice to demonstrate that compliance is straightforward and economically feasible, and that certain industry leaders have already implemented and satisfied compliance requirements.”56 The district court granted defendant’s motion to dismiss for failure to state a claim, holding that the complaint failed to demonstrate a substantial burden on interstate commerce.57 The Ninth Circuit affirmed,58 and the Supreme Court granted certiorari,59 and affirmed.60
The Supreme Court’s “Fractured” Prop 12 Decision
The U.S. Constitution grants Congress the authority “to regulate Commerce . . . among the several states.”61 In 1824, Chief Justice Marshall recognized that states have the power to regulate commerce within their borders and that such regulation may affect commerce in other states.62 Thus, the Commerce Clause may impliedly forbid certain types of state economic regulations. In 1880, the Court first held that state laws seeking to “build up . . . domestic commerce” through “burdens upon the industry and business of other States,” violate the Commerce Clause.63 Nevertheless, absent discrimination, “a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are prejudicial to” the interests of its citizens.64 This judicially implied negative command of the Commerce Clause known as the dormant Commerce Clause (“dCC”) lies at the heart of this case. With the Court’s jurisprudence in this area being described as “‘plainly manipulable and at times anachronistically metaphysical,’ . . . ‘hopelessly confused,’ a ‘quagmire,’ [and] ‘not predictable,’”65 there was hope that the Court might establish a more coherent doctrine with this decision. However, while one aspect of the doctrine yielded a unanimous decision, the Court remains divided on the ultimate reach of the dCC.
After conceding that Prop 12 does not “implicate the antidiscrimination principle at the core of th[e] Court’s dormant Commerce Clause cases,”66 the plaintiffs argued two more controversial theories—the “extraterritoriality doctrine” and the Pike “substantial burdens” test. Justice Gorsuch delivered the judgment of the Court and penned a “fractured”67 decision that made clear the division among the Justices on whether the dCC should ban clearly nondiscriminatory state laws such as California’s Prop 12.
The Justices unanimously agreed on the futility of the plaintiffs’ first theory, the extraterritoriality doctrine, that would impose an almost per se rule against “state laws that have the ‘practical effect of controlling commerce outside the State’ . . . because the law will impose substantial new costs on out-of-state pork producers who wish to sell their products in California.”68 Distinguishing the cases upon which plaintiffs relied for this theory, Justice Gorsuch noted that in each case the challenged statutes had a specific more limited impermissible “extraterritorial effect”—they deliberately “prevent[ed out-of-state firms] from undertaking competitive pricing” or “deprive[d] businesses and consumers in other States of ‘whatever competitive advantages they may possess.’”69 Moreover, the national marketplace today is so interconnected that almost any state law could have an effect on extraterritorial behavior. Such a broad rule would vitiate states’ constitutionally reserved powers to regulate within their borders allowing for “different communities” to live “with different local standards,” a feature of our constitutional order.70
Justice Gorsuch then turned to the Pike argument which resulted in a variety of opinions on its scope and application. In Pike v. Bruce Church, Inc.,71 the Court summarized the dCC doctrine as follows: “Where the statute regulates even-handedly to effectuate 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.”72 Justice Gorsuch, joined by Justices Thomas, Sotomayor, Kagan, and Barrett, explained “there is ‘no clear line’ that distinguishes the Pike line of cases from our core antidiscrimination precedents.”73 Instead, the Pike test allows the Court to detect protectionist, discriminatory state laws that appear facially neutral, emphasizing that the dCC doctrine targets discriminatory state laws.74 Nevertheless, Gorsuch conceded that the Court “has left ‘the courtroom door open’” to challenges of nondiscriminatory state laws, with only a very small number, most regulating instrumentalities of interstate transportation, likely to be invalidated by the Court.75
Next, Justice Gorsuch, now joined only by Justices Thomas and Barrett, argued that the judicially created dCC doctrine does not give judges “freewheeling power” to recalibrate the cost-benefit analysis performed by the state in enacting their laws.76 Justice Gorsuch noted there is no “juridical principle” to guide the Court in balancing the economic costs for out-of-state pork producers who choose to sell in California against the noneconomic benefits to California and its citizens of eliminating inhumane products from their market and the associated health and safety benefits to consumers.77 In fact, that decision belongs to the people and their representatives.78 And, if the nondiscriminatory state law in fact substantially burdens interstate commerce, the industry is free to lobby Congress to enact a unifying federal standard and preempt conflicting state laws.79
Notably, Justice Sotomayor, joined by Justice Kagan, wrote separately to disavow the notion that courts are unable to balance incommensurable costs and benefits, and in fact do so in other contexts often.80 Arguably, Justice Gorsuch was not suggesting that courts are incapable of such balancing, but that while they may do so in other contexts they should not assume the authority to do so here, in the context of a judicially inferred constitutional doctrine that would seriously trample the rights of citizens and their representatives to regulate their affairs.
Nevertheless, Justice Gorsuch, now joined by Justices Thomas, Sotomayor, and Kagan, turned to the plaintiffs’ Pike argument and held that the plaintiffs failed to plead sufficient facts plausibly showing that Prop 12 imposes a substantial burden on interstate commerce, the threshold necessary to reach the balancing test.81 Justice Gorsuch noted the similarities between this case and Exxon Corp. v. Governor of Maryland82 involving a Maryland law that prohibited petroleum producers from operating retail gas stations in the state.83 There, the Court held that the state law merely shifted market share from one type of firm to another, and since the dCC does not protect “particular . . . firms” or “particular structure[s] or methods of operation,” the law did not impose a substantial burden on interstate commerce.84 Similarly, Prop 12 does no more than shift the method of operation—housing pregnant pigs in cruel, tiny cages to providing pigs housing that gives them the ability to turn around freely—for those producers who wish to sell to the California market, whether they are in-state or out-of-state. And while the shift will impose costs on such producers, such costs will largely be borne by California consumers, which does not represent a cognizable dCC harm.85 Justice Gorsuch also noted that many producers have already begun the conversion, demonstrating that it is perfectly feasible—and not a substantial burden.86
Justice Barrett wrote separately to state that if the Pike cost-benefit analysis were commensurable, she would find that plaintiffs have plausibly alleged that “Proposition 12’s costs are pervasive, burdensome, and will be felt primarily (but not exclusively) outside California.”87 Arguably, however, most Pike balancing of nondiscriminatory state laws will involve incommensurable benefits and burdens. This is so as a practical matter, because if the sole state benefit of such regulation is economic, the primary purpose behind the state law is likely to protect in-state industry which would be protectionist and thus, discriminatory.
Justice Roberts, joined by Justices Alito, Kavanaugh, and Jackson, dissented on the ground that the plaintiffs have sufficiently alleged a substantial burden on interstate commerce and thus the Court should vacate the judgment and remand to the lower court to perform the Pike balancing.88
The primary disagreements among the Justices concerned the breadth of the Pike test beyond identifying discriminatory state laws and the types of harms that qualify as a burden on interstate commerce. First, Justice Roberts argued that Commerce Clause jurisprudence is designed to ensure a “free private trade in the national marketplace” in which “every farmer . . . will have free access to every market in the nation.”89 That, of course, is a broad statement, untethered from the text of the Commerce Clause that grants Congress—not the Court—the power to regulate interstate commerce. Notably, the Clause does not grant exclusive authority to the federal government.
Second, with such a broad mandate in mind, it is hardly surprising that Justice Roberts had an equally broad notion of the alleged costs or harms that could count as a burden on interstate commerce. He argued that the burdens include not only the “compliance costs” associated with meeting the Prop 12 requirements—should the producers choose to sell in California—but also the “broader, market wide consequences of compliance.”90 Justice Roberts, relying on NPPC’s allegations in their complaint, noted that these “consequences” include (1) forcing farmers to comply with Prop 12 due to the “interconnected nature of the national pork market;” (2) threats to animal welfare and the spread of disease due to group housing of the pigs; and (3) “upend[ing] generations of animal husbandry, training, and knowledge.”91
Justice Gorsuch equated Justice Robert’s approach to the per se extraterritoriality rule that Roberts himself rejected and argued that while the Court’s dCC decisions evaluate “burdens on commerce,” they “do not provide judges ‘a roving license’ to reassess the wisdom of state legislation in light of any conceivable out-of-state interest, economic or otherwise.”92 Moreover, arguably the only reason Prop 12 allegedly “forces” compliance from those outside the state is because of California’s lucrative market. But that reality cannot be determinative because the Constitution’s “fundamental principle of equal sovereignty among the states” prohibits giving small states more regulatory power than large states.93
In closing, joined by Justices Thomas, Sotomayor, Kagan and Barrett, Justice Gorsuch emphasized that the Commerce Clause of the Constitution grants Congress the power to regulate interstate commerce and preempt state laws that burden such commerce.94 While the Court has inferred from that clause judicial power to invalidate discriminatory state laws in the absence of congressional action, that power must be exercised with extreme caution to comply with the principle of separation of powers and protect our federalist structure of government.
Finally, Justice Kavanaugh penned a highly unusual and arguably illegitimate opinion, joined by no other Justice, opining on issues not presented to the Court.95 Justice Kavanaugh, writing as if he were a lawyer representing the pork producers, suggested that the next case to challenge Prop 12 and similar laws might fare better if challenged under the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.96 This discussion is extraordinary for at least two reasons. First, claims under these clauses were not presented in this case, so it makes no sense for a Justice to opine on them in the judicial opinion resolving the case. Second, there is a good reason for the fact that no claims were made under these Clauses: The Import-Export and the Privileges and Immunities Clause claims would clearly not be viable in this case. As Kavanaugh acknowledges,97 for over 150 years, the Court has limited the Import-Export Clause to imports from foreign countries—not sister states98—and has held that the Privileges and Immunities Clause protects only humans, not corporations.99 One can only surmise that in keeping with the Court’s recent disregard for stare decisis, Kavanaugh is signaling he may be open to overturning these more firmly established precedents. Further, citing two law review articles, Kavanaugh notes that “the Full Faith and Credit Clause requires each state to afford ‘Full Faith and Credit’ to the ‘public Acts’ of ‘every other State,’” and that “at its core” the Clause “is concerned with extraterritoriality.”100 Notably, neither law review article comes close to suggesting an application of the Full Faith and Credit Clause in this context. Thus, with no hint of how the Full Faith and Credit Clause would apply here, one can only imagine that Justice Kavanaugh is grasping for any argument that might give him the result he wishes to see in this case. Such an approach is far from unbiased decision-making.
In the end, the Court, while fractured, got this case right. The states have broad police powers to protect the health, safety, and morals of their citizens and Prop 12 clearly serves these goals.101 Moreover, Prop 12 is not discriminatory. California pork producers are subject to the same requirement as out-of-state pork producers who wish to sell in California. The dormant Commerce Clause jurisprudence, a judicial innovation untethered to the text of the Constitution, must be narrowly applied to discriminatory state laws designed to benefit in-state industry over out-of-state industry. While plaintiffs argued that Prop 12 forces other states, like Iowa, the largest pork producing state,102 to comply with their moral standards, ironically, invalidating Prop 12 would have forced California to comply with the (lack of) moral standards set by other states, like Iowa.
Notably, it is not surprising that Iowa is the largest pork producing state, as it “is one of only three states that categorically excludes livestock from its anti-cruelty statute.”103 As such, pork producers may mistreat pigs with abandon in Iowa to maximize profits.104 And those profits are driven by consumer demand. Thus, California, if forced to allow sales of Iowa pork in their state, would not only be complicit in the cruelty: it would be incentivizing the cruelty. As such, California clearly has a direct and valid interest in refusing sales of products it deems cruel. Finally, to the extent the national marketplace requires uniform standards, the Commerce Clause provides the answer—Congress should set uniform national standards and preempt state law. Until then, Prop 12 is valid and the pigs win—even if the win gives them only enough room to turn around.
What’s Next, Congress?
Given the fractured nature of the Court’s ruling in this case, it is difficult to predict with any certainty the impact it will have on future lower court rulings. However, some outcomes will clearly flow from the decision.
Just over a month after the Prop 12 decision was announced, Senator Roger Marshall (KS)105 introduced the 2023 version of the EATS Act.106 What the pork industry has failed to do through litigation, it now hopes to do through legislation. The bill is designed to reverse the Prop 12 ruling.107 It would “prevent States and local jurisdictions from interfering with the production and distribution of agricultural products in interstate commerce, and for other purposes.”108 This bill would ban the imposition of standards or conditions on the treatment of animals used for food products in interstate commerce if the production occurs in another state and the requirement is in addition to the federal, state, or local law where the product was produced, or where there are no applicable federal, state, or local laws.109
The senators who introduced the 2023 EATS Act are correct that Congress has the authority to regulate interstate commerce and has failed to do so with respect to setting standards for agricultural animal care. Congress also has broad authority to protect animal welfare and has done so for animals used in research, breeding, and exhibition under the Animal Welfare Act110 but explicitly excludes farmed animals from this regulation.111 Thus, there is room, and some reason, for Congress to act. However, the senators are incorrect in their assertions that California’s Prop 12 amounts to mandatory regulation in other states. This perspective misses the crucial point that no agricultural producers are forced to sell their products in California if they do not want to comply with requirements of selling within the state—the same requirements that in-state producers must also comply with.
It is understandable that senators want to protect and promote businesses within their state. But the EATS Act is an attempt to do at the federal level what they decry at the state level. The EATS Act is designed so that California would be forced to allow the sales of products that do not meet its own state standards, and with which its own state producers must comply. Iowa Senator Ernst said the quiet part out loud when she claimed that “California should look a little bit more like Iowa, not the other way around.”112 The EATS Act would prevent California and its citizens from deciding what happens in their own jurisdiction, with other states instead determining what to sell there. It denigrates the concept of free market power. If Iowa-produced pork is desired by California residents, or its production methods are favored, California citizens could work to repeal Prop 12. That is not likely as nearly 63% of California voters supported Prop 12 in 2018 and a recent survey shows that an overwhelming majority—80%—of California voters, regardless of party affiliation, feel that preventing farmed animal cruelty is a matter of moral concern and support the Prop 12 initiative.113 Further, a vast majority of voters nationwide, some 80%, support a Prop 12 initiative in their own states.114 In fact, Massachusetts’s Question 3, Act to Prevent Cruelty to Farm Animals, which was overwhelmingly approved by 78% of voters in 2018, provides similar protections to farm animals and should move forward after August 23, 2023 when the extended stay lifts.115 And, New Jersey lawmakers recently passed similar legislation as well.116
The failure of earlier iterations of the EATS Act, and the King Amendment before it, to garner sufficient support for passage in Congress should not be used to assume that the current effort to pass the EATS Act will also fail. The Court’s Prop 12 decision, affirming each of the lower court rejections of the Pork Producers arguments, has enraged and energized some legislators and agricultural producers bent on securing not only their right to raise animals for food in cruel ways, but also to maintain access to markets even where their products are not wanted.
It is notable that the EATS Act only seeks to maintain access to markets and does not attempt to address the underlying issue of animal welfare.117 The EATS Act does not propose uniform standards for the treatment of farm animals; instead, it prohibits states from setting any standards for the products that enter their state. This is clearly inappropriate as virtually no other industry is free to operate without guidelines to the severe detriment of others. It is especially unethical when the industry in question has complete control over the lives of sentient beings. If Congress does act, the only humane and ethical alternative would be to set national uniform standards that provide at least minimal protections for the animals we mistreat, kill, and eat. Notably, while Prop 12 standards are an improvement for the lives of pigs whose bodies are destined to end up as one of the types of food covered by Prop 12, it is important to recognize that the protections Prop 12 offers do not reach all pigs in the animal agriculture industry, and that the protections it does offer are minimal at best. Prop 12 merely requires that the pigs be able to turn around, stand up, lie down, and fully extend their limbs—not that they be able to engage in natural behaviors. Indeed, it is unlikely that pigs—widely recognized as extremely intelligent animals with complex social lives—can come close to living out their natural behaviors while confined within the animal agriculture industry from birth to death.
Conclusion
The Supreme Court rarely addresses animal welfare.118 Given the posture of this case, the factual allegations of cruelty were not litigated, though both sides had wildly divergent views of proper treatment of pigs in the food system. Nevertheless, the impact of the Court’s decision is to firmly establish that, as California asserted, animal welfare can be a compelling state interest.
California, meanwhile, has delayed implementation of Prop 12 to December 31, 2023 to give producers additional time to comply with its requirements.119 Thus, it will be some time before the impacts of implementation are clear. Many burdens were asserted in the case, and time will tell whether they were overstated or not. Meanwhile, the egg120 and veal industries, which did not litigate Prop 12, seem positioned to meet the requirements of Prop 12 in a timely manner.
Though the pork industry may suggest that there will be significant adverse impacts of Prop 12 in terms of either increased production costs or lack of access to the California market, it is time to reconsider the health of the pork industry overall. Even before Prop 12, the pork industry has benefited from regular government support through the Farm Bill, and additional regular bailouts without having to prove they needed it.121 If the Pork Producers allege harm from Prop 12, they will need to show evidence that other market factors and less government support are not the causes.
In the meantime, California voters who sought to improve the welfare of some animals raised for food can look forward to the implementation of Prop 12. Massachusetts122 and New Jersey123 will offer additional case studies and we will see whether additional states follow suit and whether Congress takes up the question of farmed animal welfare or seeks to restrict those who do.
Joan E. Schaffner is an Associate Professor of Law at The George Washington University Law School. Ze received a BS magna cum laude in mechanical engineering and a JD Order of the Coif from the University of Southern California, and an MS in mechanical engineering from the Massachusetts Institute of Technology. Professor Schaffner teaches Civil Procedure, Sexuality and the Law, Remedies, and Legislation and Regulation. Ze is the editor-in-chief of the American Intellectual Property Law Association Quarterly Journal and is the faculty advisor to Lambda Law and the GW Student Animal Legal Defense Fund. Professor Schaffner’s current scholarship focuses on animal protection law. Ze has presented on animal law panels and conferences world-wide.
Kathy Hessler is the inaugural Assistant Dean for Animal Legal Education at George Washington University Law School (GWU), and Director of the Animal Legal Education Initiative (ALEI), working with Joan Schaffner and Iselin Gambert, in a program made possible by generous support from ALDF. Dean Hessler has been a clinical law professor for 30 years and has been teaching animal law for 22 years. She is the first law professor hired to teach animal law full-time. She received her JD from the Marshall-Wythe School of Law at the College of William and Mary and her LLM from Georgetown University Law Center.
Iselin Gambert joined the GW Law faculty in 2009 and currently teaches in and serves as the Director of the Fundamentals of Lawyering Program. Professor Gambert is an internationally recognized scholar whose work spans multiple fields including legal writing and writing center pedagogy, feminist legal theory, animal law, critical animal studies, critical race theory, and food law and policy. Her goal with her current scholarship is to ask timely questions about the ways in which political, legal, and cultural forces impact our daily lives and our relationship with food and other animals.
Recommended Citation
Joan E. Schaffner, Kathy Hessler & Iselin Gambert, Nat’l Pork Producers Council v. Ross, (December 20, 2023), https://gwlr.org/national-pork-producers-council-v-ross-a-win-for-farmed-pigs.
