In a major win on the ongoing battle to defend pork producers from adhering to California’s Proposition 12’s space requirements for breeding hogs, the Solicitor General filed a brief in support of the National Pork Producers Council and American Farm Bureau Federation’s lawsuit. The brief is one of many filed in recent days in support of the need to uphold the Commerce Clause as the Constitution laid out and defend the ability for states to not rule what other states can and cannot do.

The solicitor general brief comes after nearly a dozen Democrat senators including Sen. Debbie Stabenow, D-Mich., asked for her to file a brief in support of California’s position. In addition to the support from the Biden administration, international trading partners and business groups filed amicus briefs in support of NPPC ahead of the Supreme Court scheduled oral argument date set for Oct. 11, 2022.

AFBF and NPPC filed a brief June 10 with the U.S. Supreme Court challenging the constitutionality of California’s Proposition 12. The state law seeks to ban the sale of pork from hogs that don’t meet the state’s production standards, even if the pork was raised on farms outside of California.

According to petitioners, approximately 72% of pork producers house sows throughout gestation in individual stalls of approximately 14 square feet per sow. Individual stalls enable sows to avoid aggression or injury from other sows and provide each sow with individual access to food and water without competition.  The stalls prevent sows from turning around as an animal-health and sanitation measure. The remaining pork producers use group housing and generally provide 16 to 18 square feet per sow. Neither practice complies with Proposition 12’s confinement requirements of 24 square feet per sow.

The solicitor general brief notes, “petitioners plausibly allege that Proposition 12 has no genuine health-and safety justification.  And the California Department of Food and Agriculture has stated that Proposition 12’s confinement standards are not ‘accepted as standards within the scientific community to reduce human foodborne illness.’”

The brief filed by the top lawyer for the Biden administration states, “Proposition 12’s sales ban is aimed at ‘cruelty’ to animals that occurs entirely outside California and has no impact within California.  The State may not ‘extend [its] police power [over animal welfare] beyond its jurisdictional bounds’ by regulating out-of-state activity with no in-state impact based on a philosophical objection.”

The brief continues that “States may not otherwise regulate out-of-state entities by banning products that pose no threat to public health or safety based on philosophical objections to out-of-state production methods or public policies that have no impact in the regulating State.”

The NPPC and AFBF brief states that Proposition 12 “will require massive and costly changes across the entire $26-billion-a-year hog farming industry. And it inescapably projects California’s policy choices into every other state, a number of which expressly permit their farmers to house sows in ways inconsistent with Proposition 12.”

“We commend the Biden administration for taking action to stop ill-considered ballot initiatives like California’s Proposition 12 that undermine vital supply chains, national markets and consumer choice and further inflate food prices,” says Michael Formica, NPPC assistant vice president and general counsel. “Additional supporters filed briefs opposing Proposition 12 and stood up to preserve the free flow of commerce among states to ensure consumers all over the nation have access to affordable, safe and wholesome food.”

Included in the list of other amicus briefs filed includes Indiana and 25 additional states, National Cattlemen’s Beef Association, North Carolina organizations, U.S. Chamber of Commerce, North American Meat Institute, Canadian Pork Council, and others. View a full list of amicus briefs filed.

Meanwhile, animal activist groups criticized the action.

Wayne Pacelle, president of Animal Wellness Action and the Center for a Humane Economy, says, “"It is shocking that the Biden administration is attacking the rights of states to enact anti-cruelty and food safety laws, especially in the absence of even a single federal farm animal protection statute and a general federal dereliction of duty when it comes to safeguarding animals reared for food.”

Pacelle adds, “When Vice President [Kamala] Harris served as California attorney general, her office successfully fended off attempts to reverse California’s farm animal confinement standards;  a prohibition on the sale of foie gras and the force-feeding of birds; and bans on the sale of shark fins, elephant ivory and rhinoceros’ horns. These important animal protection policies are all at risk if this attack on states’ rights prevails before the Supreme Court this fall.  Where is Vice President Harris when so much is at stake for California and other states?"