Fact vs Fiction

While Prop 12 went into full effect Jan. 1, 2024, space requirements went into effect July 1, 2023, and other portions of the law impacting eggs and veal have been in effect for years. The markets have been adjusting, and chaos has not resulted. But having Congress attempt to nullify state laws through a Prop 12 “fix” would produce chaos, pulling the rug out from under the many farms and producers who have already made investments to meet these standards, and causing severe uncertainty and endless litigation over a multitude of state and local laws on the books. It would also tie states’ hands from addressing emerging issues such as disease risks at a time when Congress has difficulty completing action on any legislation. Agriculture Secretary Vilsack referred to similar efforts led by former Rep. Steve King (R-Iowa) in the 2014 Farm Bill to block state laws on intensive confinement as “troublesome in that it would create legal challenges and confusion in the marketplace. … It’s one that we have a lot of concerns about.” (Note that no state has proposed a farm animal confinement standard higher than California’s, nor are we aware of any animal advocates pursuing one.)

Fifteen states (red, blue, and purple) have laws addressing cruel intensive confinement of farm animals and the associated public health risks, and 80% of American voters—including nearly equal numbers of Republicans and Democrats—support enactment in their own states of a law like Prop 12 to protect farm animals and consumers.

More than 40% of U.S. pork production already includes some type of group sow housing, according to the National Pork Producers Council. Several American-owned sector-leading companies—including Hormel

Foods, Perdue, duBreton, Tyson Foods, Niman Ranch, Clemens Food Group/Hatfield and Butcher Box (which led a letter co-signed by 24 producers, retailers and food service companies)—have declared their willingness and ability to meet the demand for crate-free pork produced in accordance with Prop 12 standards, and some have publicly stated they do not favor legislation to block those standards. Opponents of Prop 12 like to blame it for the industry’s woes, but the Wall Street Journal identified key problems facing the pork industry—a glut in supply due to declining demand and increased production—with no mention of Prop 12. National Hog Farmer reported

in February that the “market has fully adjusted to Prop 12,” and a March market report in swineweb stated that “[i]creased pork production and the impact of California’s Prop 12 restrictions taking effect were expected to exert a negative impact on prices but that has not happened.”
 

Producers in any state are free to decide not to alter their production methods to supply another state’s consumers or, if they decide to do so, can segregate animals for different markets, which the industry currently does. California and Massachusetts (the other state with a sales ban on pork produced using intensive confinement) comprise 14% of the overall national population, and there are more than enough producers already meeting these standards to supply them. The pork industry can trace cuts of pork back to a particular sow housed in a particular way. The industry has engaged in tracing and segregation to varying degrees since at least

the early 1900s. Modern-day tracing and segregations are highly sophisticated and fully adopted in the industry through the use of Radio Frequency Identification ear tags and identification tattoos. USDA-developed verification programs use tracing to allow producers to make marketing claims like “antibiotic free” and “source-verified” on their products.

Indeed, large companies can adjust by differentiating their products. But many small farmers have made the choice to focus on more sustainable, humane production and have made the corresponding investments to meet consumer demand. Thousands of farmers oppose Congress interfering with state confinement laws. Those clamoring for the Prop 12 “fix” and claiming the sky will fall in without it are those tied to Big Pork. As China Weekly reported in July 2023, large Chinese companies support U.S. legislation to undo state standards they see as an impediment. Touting the benefits of the EATS Act (the precursor to the Prop 12 “fix”) for large multinational corporations and how it could "greatly increase China's share of the U.S. pork market," enhancing their country's ability to out-compete smaller American farms, the China Weekly report notes that the state laws that would be nullified “tend to favor smaller farms in the United States and disadvantage multinational foreign-funded enterprises, weakening the ability of Chinese pork enterprises to operate efficiently.” Nullifying state laws addressing humane and public health concerns “provides opportunities for Chinese investors and pork producers to flourish.”

Potential price impacts were explained on the ballot measure (and opponents highlighted this risk during the campaign), but almost two-thirds of California voters approved Prop 12 anyway. Of course, consumers face higher prices overall at the grocery store on a variety of products, and Big Pork producers have repeatedly been sued and entered into settlements involving hundreds of millions of dollars for conspiring to fix prices to gouge consumers. There’s no evidence of price spikes elsewhere in the country unrelated to industry price manipulation and other nonregulatory factors. Prices may even drop elsewhere in the country as consumers benefit from a more abundant supply diverted to their states when some producers opt out of supplying to CA and states with similar restrictions.

The Prop 12 “fix” aims to force a lowest-common-denominator approach: If any one state permits a particular agricultural product, no matter how hazardous the product, or dangerous or unacceptable the production process, every other state could be forced to sell such products. It’s a federal power grab intended to override the legislative choices states have made and give a handout to one segment of the pork industry to protect it from competition, so it can further monopolize its control of the market, harm small and more humane producers, and stifle innovation.

Allowing animals a modest amount of room to be able to move, turn around and lie down as Prop 12 requires is not arbitrary or unscientific, and the associated risks to animal health and public health from intensive confinement, including the potential for sparking a new pandemic, have been well documented. States have broad regulatory authority to protect the health and safety of citizens and the integrity of natural resources (see, e.g., Maine v. Taylor, 477 U.S. 131, 151 (1986).) The American Public Health Association, Infectious Diseases Society of America, Center for Food Safety, Consumer Federation of America and others submitted an amicus brief in support of Prop 12, stating that the extreme confinement of mother pigs “poses a profound danger to food safety and public health in California.” Confining mother pigs in crates so small that they can’t even turn around “severely suppresses” their immune systems, making it so both they and their piglets are “more susceptible to disease.” These diseases can spread to humans, since pigs are “ideal mixing vessels for various strains of influenza virus, including human influenza.” Voters and legislators who enact cage-free and crate-free laws have a right to reduce such health risks of food sold within their state’s borders.

Living almost their entire lives in gestation crates, which are so small and tight they can’t even turn around, takes a serious toll on these intelligent animals who enjoy running, playing and bonding with other pigs. Impacts include foot and leg problems, increased risk of urinary tract infections and disease transmission, and reduction of bone and muscle mass, in addition to the psychological problems from being caged in one position 24/7, in sunless factory farms confined next to other pigs suffering, too. Opponents of Prop 12 claim it endangers piglets, arguing that baby pigs could possibly be crushed if their mothers were allowed more space to move. This is false, as Prop 12 explicitly does not apply to mother pigs who are nursing piglets nor during the five-day period prior to their expected date of giving birth.

Sec. 12007 would prevent states from requiring standards of production that apply equally to products produced within their state and products brought into their states. This would prevent them from effectively governing not only on animal welfare issues but also public health concerns such as rules to address disease risks from brucellosis and bovine tuberculosis. States would be stripped of the ability to ensure that the covered livestock coming into the state have been bred and raised in conditions the state deems necessary to prevent the subsequent spread of diseases, including heightened risks of future pandemics spurred by intensive confinement conditions. Particularly given the difficulty Congress has passing anything these days, it would be terrible policy to prevent states and localities from responding in a timely way to emerging disease threats and practices that could spark the next pandemic. The broad current language will jeopardize a range of important state and local measures, such as laws prohibiting the sale of meat from animals fed arsenic or other toxins, and meat produced using forced labor, as well as procurement regulations for public schools, prisons, hospitals and government offices—e.g., Iowa’s that prioritizes purchases from targeted small businesses, including those owned by service- disabled veterans, and Louisiana’s, which requires purchase of in-state agricultural products unless imported products are better and cheaper.

The Supreme Court ruled unanimously against the National Pork Producers’ claim that Prop 12 regulates “extraterritorially.” A majority of the Court also ruled against the pork producers on their claim that Prop 12 imposes a substantial burden on interstate commerce. The Court pointed out that, “Companies that choose to sell products in various states must normally comply with the laws of those various states.” The U.S. Supreme Court has long recognized the broad latitude provided by the 10th Amendment to allow states to enact laws that protect public health, safety and welfare by regulating the sale of goods and services within state borders (see Maine v. Taylor, 477 U.S. 131, 151 (1986); Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945)).

The Prop 12 “fix” runs contrary to principles of federalism and the 10th Amendment that have guided our nation since its founding and have long allowed states to create specific guidelines and regulations for the sale of goods within their borders.

A diverse set of more than 5,000 entities has publicly stated opposition to this kind of legislation, including a bipartisan set of 30 Senators and 193 Representatives; more than 4,000 farmers and producers across the country; 81 farm and food groups, including the National Sustainable Agriculture Coalition and the National Family Farm Coalition; 119 other organizations representing animal protection, consumer, food safety, public health, environmental, labor, legal and local government/preemption concerns; and hundreds of veterinarians. In Chairman Thompson’s own state, many PA farmers have spoken out against Congress blocking state laws on intensive confinement, including 107 Pennsylvania farms that signed a joint letter and prominent PA-based producers such as the president of Clemens Food Group (fifth-largest fresh pork producer in the U.S.); pork producer Brent Hershey; Sauder’s Eggs CEO (op-ed regarding pork and eggs); Giving Nature Foods president; and PennAg Industries Executive Vice President.