Opponents of Prop 12 Turn States’ Rights, Science, and Customer Service on Their Heads in Trying to Gut California Farm Animal Law
In less than two weeks, one of the nation’s most consequential animal welfare measures is set to take full and final effect.
In terms of the numbers of animals affected, it will have a bigger reach numerically than other California “firsts” — including the state’s bans on lead ammunition in sport hunting and the commercial sale of fur, kangaroo parts, and shark fins.
The measure, Proposition 12, addresses the most extreme forms of confinement in our society’s troubling 60-year experiment with intensive confinement of factory farms.
In 2018, California voters strengthened the ban on the extreme confinement of veal calves in small pens, breeding sows in narrow metal crates, and laying hens in bread-box-sized wire cages, and stipulated that pork, eggs, and veal cannot be sold in the state from farms using these pens, cages, and crates. The measure provided three years for suppliers and sellers if they choose to sell their product in California, to come into compliance. Hence, the January 2022 effective date.
The vote on the measure in November 2018 was a rout. Nearly two-thirds of voters favored it, despite plenty of industry fearmongering and sensationalism about food prices soaring and farmers being driven out of business by radical policies.
But there’s nothing radical about letting animals move. What’s radical is confining them in cages so small that the animals are immobilized.
A half dozen or so legal challenges to Prop 12
To ensure the proper implementation of California’s Proposition 12, Animal Wellness Action, the Center for a Humane Economy, and a farmers’ group sued the California Department of Food and Agriculture (CDFA) just a couple of weeks ago. We argued that that CDFA’s implementing regulations for Prop 12 failed to account for the full range of harmful impacts of industrialized systems of animal confinement that have long dominated U.S. meat and egg production. This public-health rationale is vitally important in defending the ballot measure from a flurry of lawsuits from agribusiness interests.
Almost immediately after we filed the legal action, the CDFA revised its regulations to abate our concerns.
The National Pork Producers Council, the American Farm Bureau Federation, the North American Meat Institute, and a set of other actors have sued the state of California multiple times not to assure proper implementation, but to gut the statute. But the series of cases they and their proxies have initiated — mainly arguing that the restrictions on sales of pork in California from other states violate the dormant Commerce Clause — have landed with a thud. Federal judges ruled against them time and again over the last three years.
In the most recently decided cases, the U.S. Court of Appeals for the Ninth Circuit rejected a challenge by the North American Meat Institute to California’s Prop 12 in October 2020; at the end of July of this year, the same court turned away a challenge from the National Pork Producers Council and the American Farm Bureau; and a U.S. District Court in Iowa in August 2021 parried yet one more lawsuit. “Under our precedent, state laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects,” noted Judge Sandra Ikuta, speaking for the Ninth Circuit in affirming a lower court ruling.
Now some of the groups have appealed to the U.S. Supreme Court seeking to have that court unwind not just a series of prior federal court rulings, but also a landslide vote of the people in America’s biggest state.
Frustrated in the Courts, Big Pork Goes to Congress, Too
With the courts emphatically and unanimously turning away their legal challenges thus far, the industry’s parallel maneuver is to appeal to Congress. They have reprised the infamous “King amendment,” named for former Congressman Steve King of Iowa, to forbid any state from restricting the means of agricultural production. Their bill, the Exposing Agricultural Trade Suppression (EATS) Act, would not only bar state or local animal welfare standards, but also nullify limits on the use of dangerous pesticides, unsafe working conditions, and untreated manure being spilled into rivers and streams. Congress, which has never passed any animal welfare standards for animals on farms, would emerge as the sole, all-powerful authority for all agriculture policy in the country.
If the past is prologue, the EATS Act should go down in flames. That was the fate of the King amendment. Lawmakers can demagogue all they want about their view that California has gone too far on farm policy, but the lawmakers’ proposal sweeps far more broadly, disempowering state and local legislators on the important issue of agriculture and food policy throughout America.
Their playbook seeks to bring about a “supply crisis” – to try to show that California, and a similar law in Massachusetts, are an assault on consumers. They say there’s just not enough gestation-crate-free pork, causing prices to spike in their attempt to create a virtual food riot.
But, in a case of bad timing for them, agribusiness giants are playing defense because of inflated meat prices (well before the ballot measure took effect). The Biden Administration has called out price-gouging by the highly consolidated meat industry, including meat packers. It’s “the greed of meat conglomerates” according to White House press secretary Jen Psaki. “You could call it jacking up prices during a pandemic.”
So please, Mr. Big Pork, put a stop to your efforts to manufacture a crisis. California’s focus on gestation crates is hardly novel. Ten states have passed laws banning gestation crates, and so has the entire European Union. More than 60 of the largest food retailers have pledged to stop buying pork from operations that confine the breeding sows, too – with many of the policies supposed to take effect in 2022.
McDonald’s announced in 2012 that it “believes gestation stalls are not a sustainable production system for the future.” Kroger’s announced that “a gestation crate-free environment is more humane and that the pork industry should work toward gestation crate-free housing.” Costco said it wants “all of the hogs throughout our pork supply chain to be housed in groups” and said “this transition should be accomplished no later than 2022.”
Consumers Revolted by Cruelty Instead of in Revolt Over Humane Treatment
The pork industry’s attempts to stoke fear and concern over meat prices seem like quite the gamble. Californians have already strongly signaled that humane treatment of farm animals is a priority. With so many food choices available to customers – whether other meat or plant-based – are people in the state really going to get into a lather that they won’t have enough cheap bacon? Are they going to think it’s humane treatment of animals, rather than meat industry greed, that is the root cause of higher prices?
The pork industry — much more so than the egg industry, which is doing far better in converting its facilities – just doesn’t get it on animal welfare. Its leaders seem to have contempt for their customers. The federal government is giving them record-breaking amounts of aid and diplomatic assistance for exports. They continue to feed off of government largesse and subsidies, but offer to take no serious responsibility on animal care or environmental or public health concerns.
It’s long past time that pork producers align their production practices with the values of the American public. That requires disassembling the old, inhumane systems — like communities do with old buildings with asbestos and other inherent safety problems — and building in their place newer, more modern, more humane systems.
In a society increasingly alert to the mistreatment of animals, with social media platforms and YouTube videos exposing us to the realities of modern meat production, most everybody knows that there’s a major moral problem with the systemic mistreatment of animals on factory farms.
And the stickiest mental images for us may be the rows of gestation crates, with forlorn breeding sows immobilized in two-foot-by-seven-foot cages barely larger than their bodies, and the battery cages, which cram six or eight hens in a cage so tightly that not one of them can lift a wing.
What a step forward in our society when these metal boxes and cages are melted in the furnace of burning moral outrage.
Wayne Pacelle is a New York Times bestselling author and President of Animal Wellness Action and the Center for a Humane Economy. He has led efforts to pass 1,500 state laws for animals, more than 100 federal laws and amendments, 30 ballot initiatives, and 500 corporate agreements. He is a graduate of Yale University.