Kris DeAngelo is an attorney and teaches several courses with MSU's Institute for Food Laws and Regulations. Scott Haskell is a veterinarian and policy expert. He teaches the online course “Global Animal Health, Food Safety, and International Trade” each fall semester and "The Law of the Preventive Controls for Human Food Rule" each spring semester.

Before the 1940s and 1950s, animals raised for meat or eggs lived outside.  But life on the farm was hard. Mortality, at least for egg-laying chickens, could approach as much as 40% per year.  But with the advent of modern cage systems, a host of problems were mitigated that allowed production to go up.  No longer were animals subject to living in their own filth or dying from diseases, parasites, predators, or weather. Waste was better managed, animals were safer, nutritional considerations were addressed, and products like eggs were cleaner. Most importantly to producers, profits rose.  Animals became a commodity to be confined and controlled in smaller and smaller spaces.

Much like Upton Sinclair’s The Jungle, which highlighted slaughterhouse horrors in the early 1900s and led to changes in food laws, exposés on Dateline or 20/20, and Netflix documentaries in the last 2 decades highlighting the living conditions of farmed animals have prompted many states to take up the issue of farm animal welfare.

Although the federal Animal Welfare Act regulates animal care within research and zoos, it specifically excludes mice, rats, birds, 4-H exhibitions, fairs, rodeos, pet stores, and animals farmed for food.

Currently, 14 states have enacted legislation that have banned or limited livestock and/or poultry confinement cages. For example,

• Arizona – Passed a ballot measure 204 in 2006 relating to the cruel and inhumane confinement of animals (swine and veal calves). This legislation would phase out gestation crates and veal crates by 2012. Regulations were passed in 2022 preventing the in-state sale of products from confinement cage systems by 2025.
• California – Passed Proposition 2 in 2008, eliminating swine gestation crates and veal crates. In 2010 the state passed legislation preventing the sale of eggs that originate from hens housed in battery cages. In 2018 California passed legislation (Proposition 12) affecting laying hens, veal calves, and gestational sows.
• Colorado – Passed legislation in 2008 regulating veal crates and sow gestation crates. They subsequently passed legislation that defines egg-laying confinement standards in 2020.  
• Florida – Passed legislation in 2002 limiting cruel and inhumane confinement of pigs during pregnancy.
• Kentucky – Passed legislation in 2014 affecting the housing and management of veal, beef, and bison.
• Maine – Passed legislation in 2009 regulating the cruel confinement of calves raised for veal and sows during gestation.
• Massachusetts – Passed legislation in 2016 regulating the housing conditions for farm animals. Subsequently, they passed legislation in 2021 updating these requirements for laying hens.
• Michigan – Passed legislation in 2009 regulating the housing conditions for farm animals. Subsequently, they passed legislation in 2019 extending the housing requirements and veterinary care needs.
• Nevada – Passed legislation in 2021 regulating the housing and confinement of egg-laying hens.
• Ohio – Passed changes to the administrative code in 2010 regulating poultry housing systems, as well as swine and veal housing requirements.
• Oregon – Passed legislation in 2007 restricting confinement for gestational sows. They subsequently passed legislation in 2019 affecting swine, and poultry housing.
• Rhode Island – Passed legislation in 2012 regulating farm animal housing conditions. They subsequently passed legislation in 2018 eliminating battery cages for egg laying hens.
• Utah – Passed legislation in 2021 effecting the confinement of egg laying hens in battery cages.
• Washington – Passed legislation in 2011 regulating facility system plan and audit protocol for enriched colony housing of laying hens. In 2019, they subsequently passed legislation in regulating the products derived from battery cage systems of laying hens.

(Source: https://www.aspca.org/improving-laws-animals/public-policy/farm-animal-confinement-bans.)

One of the strictest minimum confinement standards is that dictated in California Proposition 12, which was approved by almost 2/3 of the voters in 2018 and went into effect on January 1, 2022.  It prohibits the cruel confinement of breeding pigs, veal calves, and egg-producing hens. Proposition 12 also banned the sale of: (a) uncooked pork from breeding or nursing pigs, (b) shelled and liquid eggs from hens, and (c) veal meat, when the animals are confined to areas below the specified minimum square-foot housing requirements. It also requires sellers to verify that meat and eggs sold were raised in compliance with the standards.  

But there is a substantial difference between the current pork industry housing standards of 16 square feet per pig and the CA Proposition 12 requirement of at least 24 square feet. It has been alleged that less than 4% of the country’s 66,000 pork producers currently meet the new laws’ minimum space requirements of 24 square feet. This has resulted in farmers and commercial entities raising these animals challenging these improved living conditions. And these fights about cages and space have moved to another ring, that of the courts. Last month the fight between the National Pork Producers Council and the State of California reached the steps of the United States Supreme Court.

On October 11, 2022, the Supreme Court of the United States (SCOTUS) heard oral arguments in one such case between the National Pork Producers Council and the California Department of Food and Agriculture. It is an unusual case because the challenge is the result of a dispute that had not yet been adjudicated at the trial level. It was taken up by the Supreme Court at essentially the pleading stage without a trial or findings of fact. The implications of the SCOTUS decision could be truly huge.

In the CA Prop 12 case, the petitioners, the National Pork Producers (NPP), argued that by creating increased space requirements, California essentially was reaching outside of its own state to regulate producers in other states.  NPP contended that an “Iowa farmer doesn't know where pork from his sows will be sold. Pigs go to a nursery, a finisher, then a slaughterhouse, where the packer butchers them into parts that are sold around the world in response to demand.” Therefore, the “only safe course is to raise all pigs the California way…” Petitioners further argued that anytime one state mandates control over how a business is operating or running in another state, it was per se (on its face) invalid, and while a state may impose rules within its own borders, the burden on interstate commerce must not be clearly excessive in comparison to a local benefit.

The United States Department of Justice sided with the Petitioners, arguing that the cage size requirement imposed a substantial burden on interstate commerce without serving a legitimate local interest and was, therefore, a trade barrier that both threatened state sovereignty and created balkanization and retaliation in the marketplace.  When prodded, the DOJ did concede that a state could outright ban a product purely on moral grounds, such as banning horse meat.  However, it could not ban pork produced out of the state if, for example, the workers who raised the out-of-state pigs were not properly housed because the latter is predicated on regulating another state’s sovereign control over its own businesses.

A total of 54 Amicus briefs were filed by a host of stakeholders.  The Canadian Pork Council chimed in that CA Prop 12 impeded the US from acting as a single voice in the regulation of foreign commerce contrary to the commerce clause and implicates foreign treaties. Nineteen states joined an amicus brief stating that the Ninth Circuit’s decision to affirm the trial court’s dismissal conflicts with other circuits and allows California to regulate extraterritorial business practices and trigger interstate conflicts. The Association of Manufacturing and the National Cattlemen’s Beef Association added their own amicus brief insisting that allowing Prop 12 to stand would be an opening for numerous states to regulate outside their borders creating massive inconsistencies, increasing costs, and threatening interstate markets. Among others, the America Association of Swine Veterinarians offered arguments that farmers and veterinarians should have flexibility to use single and group pens and that there was no negative effect on human health from smaller pens.

Respondent State of California argued that California has not prohibited any other states from raising pigs in any manner desired.  Instead, California argues that it has the right to control the products that are sold within their borders. 

The Humane Society of the United States, also appearing before the court, supported California and iterated that unlike other laws that created protectionism in a benefit to in-state products, or discriminated against out-of-state products and interfered with interstate commerce, Prop 12 does not.  Instead Prop 12 “prohibits the sale within California that Californians find immoral and unsafe regardless of where it (sic) originates.”  The Humane Society drew parallels about the nexus of control and the type of products- raising examples of various permissible state laws banning eggs from caged hens, cosmetics tested on animals and the use of aborted versus non-aborted fetal tissue.

An amicus brief filed by a host of veterinarians and scientists argued in support of the State of California, maintains that the increased space may decrease the likelihood of new diseases jumping species and may reduce the amount of antibiotics needed by the pigs. While the health and safety aspects of the increased space were noticeably absent during the oral arguments, the Justices repeatedly drew attention to the issue.

All in all, the oral arguments which are typically limited to an hour and ten minutes stretched to over two hours.  Several Justices brought up the question of whether California’s moral position about welfare of pigs was more important than Iowa’s moral position of providing pork at a reasonable cost.  Ultimately, the decision will have far-reaching effects.

If CA Prop 12 in this case is deemed to be constitutionally valid without Petitioners being afforded a chance of having a decision based on a trial and evidence, the Court will be permitting individual states to control products introduced into their stream of commerce, from sources outside their direct control.  Goods from animals to energy will be subject to fifty different regulatory schemes.  States’ rights will be deemed to be paramount, and harmonized interstate commerce will take a back seat.  If instead the Court determines that CA Prop 12 is deemed to have improperly imposed California morality on the interstate marketplace contrary to the commerce clause, the questions become what type of balancing of interests is permissible and how will states be allowed to protect the choices of its people without running afoul of the Commerce Clause. 

Ultimately, it will be interesting to see how the Court decides where and how this little piggy goes to market!

Disclaimer. 

References

Animal Husbandry Guidelines for Egg Laying Flocks 2017 Edition https://uepcertified.com/wp-content/uploads/2019/09/CF-UEP-Guidelines_17-3.pdf

Bloomberg Law (2022) Supreme Court Pork Case Could Provide Roadmap for Moral Warfare https://news.bloomberglaw.com/us-law-week/supreme-court-pork-case-could-provide-roadmap-for-moral-warfare 

California Health and Safety Codes https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=HSC&division=20.&title=&part=&chapter=13.8.&article

California Code Health and Safety Code 2010 Chapter 13.8. Farm Animal Cruelty https://law.justia.com/codes/california/2010/hsc/25990-25994.html

CDFA (2022) Animal Care Program https://www.cdfa.ca.gov/AHFSS/AnimalCare/ 

Cornell Law School (2022) National Pork Producers Council v. Ross https://www.law.cornell.edu/supct/cert/21-468 

Douglas, Leah (2022) Pork industry takes fight over California law to U.S. Supreme Court. Reuters https://www.reuters.com/markets/commodities/pork-industry-takes-fight-over-california-law-us-supreme-court-2022-10-10/

Harvard Law School (2022) Harvard Highlights the Cruel, Far-Reaching Implications of Prop 12 Challenge Before U.S. Supreme Court (2022) https://clinics.law.harvard.edu/blog/2022/08/harvard-highlights-the-cruel-far-reaching-implications-of-prop-12-challenge-before-u-s-supreme-court/

Humane Society of the U.S. Report: The Welfare of Intensively Confined Animals in Battery Cages, Gestation Crates, and Veal Crates. https://www.humanesociety.org/sites/default/files/docs/hsus-report-animal-welfare-of-intensively-confined-animals.pdf

Lingling, X., et. al. (2019) Consumers’ Willingness to Pay for Food with Information on Animal Welfare, Lean Meat Essence Detection, and Traceability. Int. J. Environ. Res. Public Health 2019, 16(19), 3616; https://doi.org/10.3390/ijerph16193616

Mo Chen, et. al. (2021) Study on Consumer Preference for Traceable Pork with Animal Welfare Attribute. Front Psychol. 2021; 12: 675554. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8281310/

Scherer, L., et al. (2018) Framework for integrating animal welfare into life cycle sustainability assessment. Int J Life Cycle Assess. 2018; 23(7): 1476–1490. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6435210/

U.S. Supreme Court Docket (2022) National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et. al. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/21-468.html