By Oliver Hirsch

The US Supreme Court has upheld Proposition 12, a Californian law setting minimum standards for the confinement of egg-laying hens, breeding pigs and cows.

What is Prop 12?

“Prop 12” was passed by referendum in 2018, with around 63% of California voters in favour. Among other things, it requires that in order to be sold in the state, pig meat must come from breeding sows (and their offspring) whose enclosures allow at least 24 square feet of usable floor space per pig. The measure is designed to counter the practice of keeping pregnant sows in crates that are too small even to turn around in.

What was the court case about?

The law was challenged by two industry groups, the National Pork Producers Council and the American Farm Bureau Federation. They claimed that since most Californian pork is imported, businesses from other states would either have to change their farming practices or stop selling to California. This supposedly made the law an unconstitutional burden on ‘interstate commerce’.

What were the arguments?

In short, the industry claimed that the Constitution prohibits state measures that have the practical effect of controlling commerce outside the state, even where there is no deliberate attempt at protectionism of domestic industry by discriminating against businesses in other states. In other words, a law is unconstitutional simply by virtue of having some effect on the economies of other states. The Supreme Court gave this idea short shrift, unanimously dismissing it.

However, the industry had a backup argument. Even if states were allowed to pass measures with practical extraterritorial effect, they will still be unconstitutional if the burden imposed on interstate commerce is clearly excessive in relation to the putative local benefits. On this point, the Court was divided, with a bare majority (5:4) dismissing this argument too.

Prop 12 survives – just

Interestingly, the majority were split over why the challenge failed. Four justices (conservatives Gorsuch and Thomas, together with liberals Sotomayor and Kagan) found simply that the burden on interstate commerce was not “substantial”. It was not enough merely that pork producers might have to change their favoured methods of operation, which raised no more than a speculative possibility that farms would no longer sell to California. And if it meant higher pork prices in California, so be it. (See pages 21-25 of the Court’s Opinion.)

The remaining justice, Amy Coney Barrett, actually thought that there was enough to suggest a substantial burden on interstate commerce. But she considered that it was no business of a court to weigh up the benefits to animal welfare against the economic costs; this was something that should be left to voters. Indeed, the other two conservative justices in the majority (Gorsuch and Thomas) agreed with her on this point, even though they also considered the burden was not substantial in any case. (Opinion of Gorsuch J, pages 18-21 and 25-27.)

Were it not for Justice Barrett’s approach, she would have agreed with the dissenting four justices that the case must be sent back for trial to decide whether Prop 12 imposed a disproportionate burden on interstate commerce. That would have handed victory to the pork industry, by a majority of 5:4.

It is some surprise that, in a clash between agribusiness and a Democratic Party state government, the latter triumphed in part thanks to three of the most conservative justices on the Court. Contrast that too with the extraordinary decision of the Biden administration to intervene on behalf of the pork industry.

Implications of the decision for farmed animals

The case turned on the extent to which animal welfare regulations may be permitted to infringe on interstate trade. The obvious parallel is with EU law, which prohibits member states from taking measures that have the effect of impeding free movement of goods unless they are necessary to fulfil a legitimate purpose (see Articles 34-36 TFEU). European advocates of stronger welfare protections might seek to replicate the success of arguments made before the Supreme Court.

As for America, this is an important result. Repeated reference was made in the Court’s decision to the sustained failure of efforts made by pork producers to persuade Congress to implement uniform federal pork production standards. In the words of Justice Gorsuch, “it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshalling a majority of elected representatives across the street” (p.21).

By bringing the case, the pork industry has accidentally created a legal precedent encouraging more states to follow California’s example. Spare a thought for the executive who took that decision; the next board meeting will be tough going.

Oliver Hirsch is a barrister at 3PB, specialising in criminal, regulatory and personal injury law. He is always looking to build his practice in animal welfare law and welcomes instructions in this area.