Hog Producers, Others Challenge California Statute

Jun 4, 2021  | 7 min  | Ep4642

California’s economy is the sixth largest in the world. The agricultural sector alone accounts for two percent of the state’s revenue -- about $47.1 billion dollars.

So when a major policy change is set to happen in the Golden State, the rest of the industry takes notice.

A change to livestock housing rules under Proposition 12 is just months away from taking effect in California.

Colleen Bradford Krantz looks at the potential impact of Prop 12 in our Cover Story.  

Terry Wolters expects the sow buildings, in which he has partial ownership, will have to be reconfigured to allow more space for each animal if a California statute known as Proposition 12 is implemented in six months.

The Pipestone, Minnesota farmer doesn’t think it will matter that he’s not a resident of California.

Terry Wolters, National Pork Producers Council, President-Elect: "These regulations set a precedent that a state law is now going to mandate how we have to produce that product... And so if one state has one regulation and one state has another regulation, I only have one pig. I can’t make my pig meet everybody’s regulations individually.”

As of January 1, 2022, the rules for food products sold in California would require all egg-laying hens to be raised in a large-pen setting with at least one square foot per bird, all calves raised for veal must be provided at least 43 square feet, and all sows must be raised in an area that is a minimum of 24 square feet. While the egg industry had already adjusted somewhat due to an earlier California statute, the impact would be newer to the hog industry, and require most typical sow stalls to be enlarged by about a third over the current average of 18 square feet.

Packers will face the choice of either losing the significant California market - which consumes an estimated 15 percent of the nation’s pork - or only buying from producers who comply. And one study suggests less than 4 percent of the nation’s sow housing would currently be considered compliant.

The National Pork Producers Council sent a letter to Secretary of Agriculture Tom Vilsack last week asking for his help. It argued that California’s Proposition 12 will lead to “catastrophic” costs for the nation’s pork producers.

California officials argue that the rule, first proposed by the Humane Society of the U.S. and approved by the state’s voters in 2018 with 63 percent in favor, is simply the expression of their citizen’s wishes.

Sec. Karen Ross, California Department of Food and Agriculture: “It is a law that passed by very popular vote and it is our job to implement it and ensure the integrity of the program going forward.”

Several national meat industry groups, convinced the California law will affect farmers nationwide, have been pursuing legal challenges to Proposition 12. They argue the statute violates the legal doctrine known as the Dormant Commerce Clause, which prohibits state legislation that discriminates against interstate or international commerce.

In an April appeals hearing in California federal court, lawyers for the National Pork Producers Council and California state government explained their respective stances.

Matthew Wise, Deputy Attorney General, California Dept of Justice: “Proposition 12 controls only the sale of pork products in California so it is analogous to Walsh and you know that’s the common thread... states have always been permitted to exercise their sovereign power over sales within the state.”

Timothy Bishop, attorney, National Pork Producers Council: "The result of that is that those immense costs - $3 million for just one of our declarants to conform to that - are going to be borne by every single market hog born to that sow....They are going to be sold in Illinois and in Michigan and lots of other states where the consumers do not want to pay for California’s preferences for sow housing.”

At least one agricultural policy expert is doubtful those challenges will succeed as a similar attempt failed when California passed Proposition 2 in 2008. That earlier statute, effective in 2015, required owners of California’s egg-laying poultry, sows and calves raised for veal to provide enough room for each animal to fully turn around and extend their limbs. It initially applied only to those animals raised in California, but when the state’s legislature realized they were putting their own egg producers at a disadvantage, the statute was expanded to all eggs sold in the state.

Aleks Schaefer, Michigan State University: In response to Prop 2, some attorneys general from some of the big egg-producing state tried the same thing: to get the Supreme Court to strike down Prop 2. And the Supreme Court declined to do that. The reason kind of on the face that they said they wouldn’t do it was because the attorneys general weren’t egg farmers. So they didn’t have the right to criticize this law. I think in reality that’s sort of just trying to dodge the issue.”

Michigan State’s Schaefer helped conduct a study that showed the older statute - Proposition 2 - did increase egg costs across the country. The increased prices, he concluded, hit the nation’s lower-income consumers the hardest. The fallout from the measure also increased the speed of consolidation as some poultry farmers left the business rather than spend the money to rebuild their laying facilities. Schaefer expects Prop 12 will do the same thing to the hog industry. He would prefer to see livestock housing changes come from economic pressure that start in the grocery store rather being directed by a single state’s popular vote.

Aleks Schaefer, Michigan State University: "If we care about animal welfare, I might buy animal welfare-friendly egg or animal welfare-friendly pork. This is a different thing, right?.... Those people who said ‘no,’ they now don’t get the option to vote with their wallets anymore. And so that is definitely going to negatively affect - or has already affected - the poor people who really on these kind of staple proteins to feed their families.”

California Agriculture Secretary Ross would have preferred a legislative debate.

Sec. Karen Ross, California Department of Food and Agriculture: Our proposition process, you know, just really restricts that exchange of information and the kind of sometimes very detailed and precise scientific information that’s hard to convey when it ends up being in a campaign about, you know, 30-second soundbites."

For Market to Market, I’m Colleen Bradford Krantz, colleen.krantz@iowapbs.org

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