Will California Dictate to Virginia Farmers?

Early last month the North American Meat Institute (NAMI) filed a complaint against the Attorney General of California and the Secretary of California’s Department of Agriculture to stop the state’s Proposition 12 law, which flies in the face of the federal Commerce Clause. Their move for a preliminary injunction to stop California’s effort to regulate how hogs and veal calf housing is to be regulated in 49 other states will be heard on November 18.

NAMI believes the law will “…transform the interstate and international market for pork and veal by banning the sale of wholesome meats imported from other States and countries unless farmers in those States and countries comply with burdensome animal-confinement (rules) that California voters adopted…”

Another titanic battle between agricultural interests and animal rights interests could be forthcoming.

In 2018 California voters passed Proposition 12, which forces California farmers to provide minimum standardized space for egg-laying hens, breeding pigs, and calves raised for veal. California businesses will be banned from selling eggs or uncooked pork or veal that came from animals housed in ways that did not meet these requirements; so, any non-California based farmer who wishes to sell same products to California consumers must adhere to these rules.

That sounds unconstitutional

But can one state get away with that?

The argument goes back to 1787 at the Constitutional Convention where the Commerce Clause in Article 1, Section 8 said Congress would hold the power to regulate commerce among the several states. The 10th Amendment of the Constitution adopted in 1791 declared that powers not delegated to the United States are basically reserved for the states. For almost 100 years the precedent was set by Gibbons v. Ogden in 1824, which said states had a right to regulate business under the 10th Amendment. In 1942, Wickard v. Filburn (Ohio wheat farmer case) held that virtually any effect on interstate commerce fell within the power of the federal government, and that included any federal regulation addressing cultivation of crops and the raising of livestock.

NAMI claims it represents the largest number of packers and processors of pork, veal and processed meats in the country.

One of the critical arguments NAMI makes reflects a common sense argument all in agriculture will recognize. “Proposition 12’s sales ban violates the Constitution’s Commerce Clause because it imposes substantial burdens on interstate commerce that clearly outweigh any valid state interest.”

NAMI’s Request for Preliminary Injunction states that Proposition 12 is clear. “The sales ban’s entire point is to affect interstate commerce.”

It is clear California’s Proposition 12 has a disproportionate burden on interstate commerce. The memorandum supporting the motion describes how the veal industry has recently spent over $150 million to build “tether-free” housing. Proposition 12 requires 43 square feet per calf. NAMI argues this is twice the square feet per calf that the European Union standards require.

NAMI argues that California’s Proposition 12 imposes interstate burdens that “…are direct, non-speculative, significant in magnitude, and will be felt inside and outside of California.” As a result, all (U.S. and foreign) pork and veal producers would be forced to change the inside of their buildings and how they produce hogs and veal. For example, California’s Proposition will require all out-of-state pork production facilities “…to eliminate breeding stalls and gestation crates immediately…”

NAMI believes and argues this requirement alone will make it “virtually impossible” and require a number-of other state producers to exit the California market.

The sales ban

Proposition 12 also includes a “sales ban” which said these requirements would apply to an out-of-state producer. This, of course, set off a dispute where many state Attorneys General filed suit in California several years ago — and lost.

Another two original actions were filed requesting the U.S. Supreme Court to review California’s Proposition 12 and its sales ban designed to extend California’s housing requirements onto out-of-state producers selling products in California; it also failed.

This will be the third attempt, starting with the U.S. District of Court in the Central District of California, to overturn California’s attempt to impose its will on animal agriculture in other states.

Proposition 12 requires the California Secretary of Agriculture to promulgate regulations implementing the proposition by September 1, 2019. The department failed to meet that deadline. NAMI was informed on September 23, 2019 that Proposition 12 regulations will be proposed by the end of 2019 and finalized a year later in 2020.

Is this discrimination?

NAMI claims its members are being discriminated against in violation of the U.S. Constitution’s Commerce Clause. It states that California’s Proposition 12 is to protect California producers “…from bearing costs not borne by out-of-state competitors.” Paragraph 49 of the complaint states the issue clearly and accurately by attacking Proposition 12 “…as an impermissible protectionist trade barrier, blocking the flow of goods in interstate commerce unless out-of-state producers comply with California’s regulations.”

Animal agriculture must and should support NAMI on this one. The complaint declares, “California has no legitimate local interest in how farm animals are housed in other states and countries.”

California has no authority to regulate the conditions under which farm animals are housed outside its borders.

And if California wins this case, it is easy to imagine the state’s population could decide to pass a proposition declaring that all corn, soybeans, and other GMO crops harm California citizen health (even without scientific evidence). California could set the standards for how farmers produce crops, as it now attempts to regulate how pork and veal are produced.

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About Gary Baise

Gary Baise is a Virginia resident and an Illinois farmer. Specializing in agricultural and environmental issues, he also serves as outside General Counsel for the U.S. Grains Council, Agricultural Retailers Association, and National Sorghum Producers.
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