Prop (12) Me Up Beside the Jukebox: Supreme Court Sings Sadder Tune Than Expected for Pork

Aug 28, 2023

By Virginia Houston, ASA Government Affairs Director

Earlier this year, the U.S. Supreme Court announced a decision in a major case affecting agriculture. While you might be thinking of the ruling on Waters of the United States in Sackett v. EPA, that’s not the only agriculture case the court considered this session. On May 11, it issued a verdict in National Pork Producers Council v. Ross. This case, brought by the National Pork Producers Council and the American Farm Bureau Federation, challenged California’s Prop 12 ballot initiative, which banned the sale of pork from hogs born from sows that were not housed in accordance with California’s standards, even if the hogs were born, raised and harvested outside the state. Among other challenges, the cost of converting sow barns to group pens would impose tremendous compliance costs on hog farmers nationwide, not just those few in California.

NPPC and AFBF argued that Prop 12 violates the Dormant Commerce Clause. Under Article I, Section 8, of the U.S. Constitution, Congress has the power to regulate commerce and prevent states from imposing restrictions on interstate commerce by disparaging or discriminating against products produced outside their own state.

At the most basic level, the argument utilized by NPPC and AFBF was that, even though Prop 12 does not fully discriminate against pork imported from outside California (all pork sold in the state had to comply with the law, including hogs raised in California), it places overly burdensome regulations on interstate commerce by requiring farmers in all other states to raise their hogs according to California’s standards.

It should be noted that California accounts for only 15% of all domestic U.S. pork production: The state is a massive agricultural powerhouse in fruits, vegetables and tree nuts but produces very little pork.

While farmers were hopeful the Supreme Court would side with NPPC and AFBF, their hopes were dashed when the court ruled to uphold Prop 12 in a fractured 5-4 ruling (For your next turn on Jeopardy, a “fractured” ruling occurs when a majority of the court is unable to agree on a unified opinion). In the ruling, Justice Neil Gorsuch wrote, “While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

There are still several outstanding questions pending in the wake of the Prop 12 ruling. The implementation period for compliance is murky, as is the timeline for enforcement to begin. There is also the question of how much it will cost the industry to comply with the ruling. A study from the University of Minnesota estimates that the cost of converting sow barns to group pens could range from $1.9 to $3.2 billion—approximately $3,500 per sow. Finally, do other states follow suit and attempt to prohibit modern farming practices within their borders, following the example of California? Is there a role for a divided Congress to tackle this issue?

As with many issues in Washington, D.C., one may be left with more questions than answers following this decision. ASA continues to engage with and support our friends in the animal agriculture sector, and we will continue to monitor these issues, as they directly impact soybean growers across the country.