Making Sense of California's Proposition 12

If it's not one thing, it's another.

By Andrew Joseph

For the past few years, the American pork industry has had to concern itself with: the Covid-19 pandemic and its corresponding supply chain, labour and health issues; and the ever-present Sword of Damocles hanging over everyone’s head that is African Swine Fever and the prevention of its entrance into North America, while also preparing for its unwanted arrival, nonetheless. And then there is California Proposition 12 - a new State of California law that bans the sale of pork for any hog born to a sow not raised according to the state’s production standards, specifically animal housing doctrine.

Proposition 12 seeks to establish minimum space requirements based on square feet for breeding pigs and would also apply to calves raised for veal, and egg-laying hens, and to ban the sale of meat products from these animals when the animals are confined to areas below the minimum square-foot requirements.

Proposition 12 was approved by the state’s voters in November of 2018, and enacted as law on January 1, 2022. Proponents of the law claimed it would make pork production more humane by setting minimum space requirements for breeding pigs, laying hens, and calves raised for veal.

Specifically for pork producers, Proposition 12 applies to any uncooked pork sold in California, regardless of where it was produced and processed in the state or outside its borders - or even anywhere in the world.

As it stands, nearly all pork produced in the US would fail to meet the California standards.

While it sounds simple enough, from an animal welfare point of view, the main concern for many opponents is that Prop 12 has no scientific, technical, or agricultural basis for the law, and that in many ways it runs contrary to veterinary best practices in some ways.

And then there are the Constitutional issues.

The US Supreme Court has agreed that the way Prop 12 is structured, there is enough for it to intervene by agreeing to hear a case against the California law, brought by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF).

The crux of the argument from the NPPC and the AFBF, is that Prop 12 shows the state of California over-stepping the country’s constitutional boundaries.

Terry Wolters, President of the NPPC said via press release: “We are extremely pleased that the Supreme Court will consider the constitutionality of Proposition 12, in which California seeks to impose regulations targeting farming practices outside its borders that would stifle interstate and international commerce.”

Since its passage, the NPPC has argued at the US district and appellate court levels that Proposition 12 violates the US Constitution’s Commerce Clause granting Congress power to regulate trade between all of the states, and limits a state’s ability to regulate commerce outside its own borders. The case in front of the US Supreme Court is on appeal from the US Court of Appeals for the 9th Circuit, which noted that Proposition 12 “will have dramatic upstream effects and require pervasive changes to the pork industry nationwide.”

For NPPC and other concerned pork producing entities - the State of California is telling all the other pork producing states (and countries) just how they should go about their business. Oh, and yes, part of the law requires the State of California to send certified inspectors to other states and countries to ensure everyone is following their law.

However, the Supreme Court agreed with the NPCC and AFBF that the appeals court decision did not align with other Supreme Court decisions, and conflicts with nearly every other federal circuit court.

As such, the US Supreme Court is expected to hear oral arguments by the autumn of 2022 with a decision by the end of this year.

“(We have) poured a lot of blood, sweat and tears into preserving the rights of America’s pork producers to raise hogs in a way that’s best for their animals’ well-being and that allows them to continue selling pork to all consumers, both here and internationally,” said Wolters.

To comply with California standards, US (and international) pork producers will need to alter current housing structures and farming methods which, as it currently stands, would come at a cost estimated in the billions, said the NPPC.

While the costs will ultimately be borne by the consumer via higher pork prices, the cost to switch to alternate housing systems will be on individual farmers to invest.

With current high food inflation levels, an increase in the price of pork today or in five years would not be welcome by most consumers.

At the time of publication, the California Department of Food and Agriculture had yet to finalize the state’s rules outlining requirements.

An initial proposal of rules implementations of Proposition 12 included the requirement of hog farms to provide annual certification of their compliance with it - something the NPPC calls “unworkable”.

Michael Formica, Assistant Vice President and General Counsel with the NPPC (National Pork Producers Council) offered his view: “Proposition 12’s full enactment would have inspectors traveling to pork producer facilities across the United States, Canada and everywhere else pork was raised and shipped into the state. The scope of these inspections, biosecurity concerns for animal health and safety, and the additional cost to farmers is why the organization finds initial rules unworkable.

“It’s going to cost millions of dollars to check on the construction and installation of the animal shelters,” he said, “And that’s just one year. Prop 12 says that each pork producer must recertify every year. There aren’t enough inspectors right now to do the job, which means California will need to either hire more inspectors itself, or more likely, it will use the services of third-party organizations to perform the inspections for them,” explained Formica.

He acknowledged that it was very likely the inspectors of each facility will undergo each pork producer’s biosecurity measures, but with so many pork producers - just in the US alone - it’s a logistical problem combined with a biosecurity problem.

“And then there are the unannounced visits allowed under Prop 12,” stated Formica. “Right now, we have the whole industry concerned about keeping ASF out of the North American continent, and hoof-and-mouth disease, and a host of other transmissible diseases that could take out herds, and Prop 12 wants to have inspectors move from site to site.

“It’s a biosecurity nightmare waiting to happen.”

Moving past Prop 12’s Constitutional overreach by the State of California, the consternation among those wanting to reverse the law is the fact that California doesn’t even have a pork producing industry of its own - with only about 5,000 sows raised within its borders, an estimated 1,200 to be used for commercial production purposes - and yet it wants to dictate how pork production must be enacted.

“Even though California’s Prop 12 law is applied to their state - as well as to other states and countries - there is no pork production in California. Aside from some niche market pork, millions of sows are required annually from outside the state to provide enough pork for the California market,” related Formica.

With a lack of pork production in California, Formica says it’s one of the reasons why the state’s agriculture department is having difficulty in getting all the rules and regulations in place.

“I suspect that California is having its own concerns regarding the certification process,” related Formica. “They certainly understand the egg side of Prop 12 - they know how it works. But at the onset, I don’t think they fully understood the ramifications of just how complex the pork industry is.”

Citing the example of a single sow at a pig farm in Canada having 24 piglets in a year, Formica noted it is likely the piglets would be moved for further farming to a nursery farm to a growout farm until market size – that six of the piglets could end up in South Dakota; six could go to Minnesota; six to Wisconsin; and six might move to Ottawa.

This little piggie went to market. This little piggie stayed home…

“Any one of those piglets could be sold to another farm before it is harvested and packaged.” Formica said that any one of those grown piglets could end up thousands of miles away from its mother, with processed parts going all over the world.

Granted the US and Canadian swine industries already keep track of the movement of each and every pig within its domain, but for Prop 12 to work, any food processor or seller of pork within the borders of California will need to ensure the product it sells conforms to the animal welfare regulation.

The end result, warns Formica, is that California consumers will ultimately pay more for pork sold there.

While other states will “not be affected”, Formica did believe that “eventually with California’s large consumer market, that everyone in other states will end up paying more for their pork.”

He pointed out that if Proposition 12 survives as law, niche pork industries will gain a larger market share with California markets—but not for long.

“Very quickly, these niche producers will find themselves up against the larger producers adapting to the market environment,” Formica said. “Those small companies with expensive niche products will very quickly lose their market. Big pork producing groups will join their private party, and because of larger resources will be able to usurp their market.

As it stands, Prop 12 is law in California, but a law where California regulators are still trying to work out the inner mechanisms of how they will fulfill its requirements.

“The NPPC and the AFBF lawsuit,” sums up Formica, “seeks to protect the interests of America’s 60,000 pork producers to operate in ways that are best for their individual farming operations, for animal welfare and for commercial markets they sell into.”

The American Farm Bureau Federation is the Voice of Agriculture. AFBF is the nation’s largest general farm organization, representing families in all 50 states and Puerto Rico, working together to build a sustainable future of safe and abundant food, fibre and renewable fuel for our nation and the world. For more information, visit www.fb.org.

NPPC is the global voice for the US pork industry, protecting the livelihoods of America’s 60,000 pork producers, who abide by ethical principles in caring for their animals, in protecting the environment and public health and in providing safe, wholesome, nutritious pork products to consumers worldwide. For more information, visit www.nppc.org.