Proposition 12 Update

Food chain mandates hurt producers, consumers.

By Terry Wolters

sows laying on floor

With disruptions caused by the pandemic and mounting uncertainty surrounding the crisis in Ukraine, ensuring a consistent, safe, and affordable food supply has never been more important.

These unprecedented challenges highlight the valuable role farmers play every day on farms across America. It also highlights how additional food chain mandates will cause further disruption in the marketplace.

Ballot initiatives, special interest group pressure, food company and government policies are resulting in a patchwork of arbitrary standards that threaten farmers’ ability to operate. This also can have a ripple effect of disruption in the supply chain, including costly investments for farmers and higher prices for consumers.

The Legal Side of Prop 12

Passed by California voters in 2018, Proposition 12 (Prop 12) is the latest food chain mandate that is threatening producers’ livelihoods and consumers’ purchasing power.

Prop 12, which went into effect on January 1, 2022, prohibits the sale of pork, eggs and veal that are not produced according to the state’s arbitrary production standards. It applies to any uncooked pork sold in California, whether raised there or outside the state’s borders.

The National Pork Producers Council (NPPC) waged a legal battle, arguing at the US district and appellate court levels that Prop 12 violates the Constitution’s Commerce Clause, which grants Congress the power to regulate trade among the states and limits the ability of states to control commerce outside their borders.

NPPC and the American Farm Bureau Federation asked the US Supreme Court to hear their case on appeal from the US Court of Appeals for the 9th Circuit, which in July 2021 upheld a lower court ruling against the NPPC-AFBF lawsuit.

The appeals court found that despite the plausibility alleging that Prop 12 “will have dramatic upstream effects and require pervasive changes to the pork industry nationwide,” 9th Circuit precedent didn’t allow the case to continue. That precedent, however, runs counter to numerous Supreme Court decisions and conflicts with nearly every other Federal Circuit court.

The US Supreme Court at its March 25, 2022, conference agreed to hear the case, with oral arguments likely taking place in October or November of this year, with a decision expected around New Years.

In the meantime, the Superior Court in Sacramento County, California, on February 2, 2022, issued a final judgment, delaying enforcement of Prop 12 and making clear that implementation of final regulations is a necessary step before enforcement of the initiative. The California Department of Food and Agriculture has yet to issue rules for Prop 12 despite a September 1, 2019, statutory deadline.

The Impact of Prop 12

To continue selling pork to the nearly 40 million consumers who live in California, which represents about 15% of the US pork industry’s domestic market, pork producers will need to switch to alternative sow housing systems.

Industry estimates for converting sow barns or building new ones to meet the Prop 12 standards would cost between $1.9 billion and $3.2 billion, according to a University of Minnesota study.

Even though farmers will bear most of the costs, consumers in California and across the nation eventually will see higher pork prices. In today’s environment of high inflation, a tight labor market, and supply chain uncertainty, it’s clear that additional mandates will only further stress the food supply chain and ultimately hurt consumers.

It is vital that pork producers maintain the autonomy to raise livestock in a way that ensures a consistent, safe, and affordable supply of pork for consumers. This is best accomplished by applying the latest veterinary science and considering the environment and economic viability.

Moving away from individually caring for sows does not take these factors into account. In fact, Prop 12 could be a step backward in advancing animal welfare and environmental sustainability.

The use of ballot initiatives may sound good on paper, but they lack any consideration of the complex realities of raising food animals.

It is important for all agricultural stakeholders to engage with food industry decision-makers, government officials and NGOs to engage in productive discussions about moving food production forward in a way that benefits everyone.

Terry Wolters
Terry Wolters of Minnesota is president of the National Pork Producers Council and owner of Stoney Creek Farms. Wolters’ industry involvement has spanned numerous state organizations, including Minnesota Pork Producers Association, South Dakota Pork Producers Council and the Minnesota Farm Bureau. He is also chairman of NPPC’s Animal Health Food Security Policy Committee.