Pork producers ask justices to toss California’s ‘bacon ban’

Iowa pork producers could be in trouble if the U.S. Supreme Court agrees that a California law regulating how pork sold in that state is produced, trade groups say.

The court heard oral arguments in a case Tuesday brought over California’s Proposition 12, a ballot measure that requires breeding sows that give birth to hogs sold for pork in California to be housed in at least 24 square feet of space. The law also has requirements for egg-laying hens and calves raised for veal, but the court case pertains to the pork requirements.

Iowa farm groups have opposed the law, which they say would impose a high burden on pork producers outside California and violates the U.S. Constitution’s provisions that prevent states from restricting interstate commerce.

In a news conference Tuesday, Lori Stevermer, a Minnesota pork producer and vice president of the National Pork Producers Council, said the law could have “life-changing” impacts on her operation. Stevermer doesn’t have sows on her farm, but she said the law could still cause processors to not buy from her.

“If the cost to implement in California is great, as we expect it will be, or if the market is less to us, cut off, very possibly the people that we raise pigs for will say, ‘We don’t need your farm anymore’ because we don’t have any place to sell our pork, and that takes us out of business.”

The law was passed by a ballot measure in 2018 with the goal of improving the welfare of animals raised for meat sold in California.

Sows generally are confined to “gestation crates” during their pregnancy, a small stall only large enough for the pig to stand and lie down, where it cannot turn around. Some are kept in group confinement but rarely is the pen large enough to satisfy the law’s space requirement.

Iowa’s Republican politicians have introduced bills, written op-eds and voiced opposition to the law, dubbing it a “bacon ban” and saying it would hurt Iowa’s producers.

Iowa trade groups argue against the law

Iowa leads the nation in pork production, marketing more than 48 million hogs in 2018 and accounting for about a third of the country’s pork production.

The Iowa Pork Producers Association and Iowa Farm Bureau have joined briefs supporting their national counterparts. The state of Iowa also joined 19 other states in supporting the National Pork Producers Council’s request to overturn the law.

Eldon McAfee, a West Des Moines lawyer who represented the Iowa Pork Producers Association in court briefs, said the law would effectively require many pork producers in states like Iowa to meet California’s standards — even if their meat isn’t destined for California.

“Our belief is that when you have something that broad with the penalties that are involved, it will result in overregulation by many packers saying, ‘OK, if we can't exactly trace it as a practical matter anyway, then we’ll require more of you to meet it so we can be sure that the meat we sell there will be compliant,’” he said.

Mcafee and the national pork producers also argued the biggest burden would fall on smaller pork producers, who may not have the money or access to credit to alter their facilities to meet California’s standards, and thus would lose out or have to exit the market.

The national pork organization estimates that producers would need to spend up to $347 million to reconstruct housing to accommodate the requirements of Proposition 12.

But not all economists agree. Richard Sexton and Daniel Sumner, agricultural economists at the University of California-Davis, argued in a brief the law would cause only some producers to make the switch, and it wouldn’t meaningfully increase prices in other states.

Sexton and Sumner’s analysis found that producers would make the switch to Proposition 12-compliant facilities if it was economically viable to them, while the rest of the country’s producers would continue to produce hogs as normal.

Their research was partly funded by the National Pork Board and the California Department of Food and Agriculture.

“If you’re going to sell pork to the rest of North America that doesn’t have California’s standards, you’re not going to be cost competitive in doing that if you’re imposing California standards across your entire operations,” Sexton said in an interview. “And so people just aren’t going to do that. Processors aren’t going to do that. They’re not going to raise costs needlessly.”

The change would require processing plants to dedicate time specifically to processing Proposition 12-compliant hogs, but Sexton said operations would adapt in economically viable ways.

National perspective

Lawyers for the National Pork Producers Council said in the news conference they were encouraged by the oral arguments.

“It was very hopeful to hear the justices understand the trouble that will be created by laws like Proposition 12 that reach far outside the state’s border to try and impose the moral will of one state,” Michael Formica, a lawyer for the National Pork Producers Council, said. “...It has a tremendous impact on pork production and pork prices, but if let to stand, it would have a tremendous impact on the U.S. economy, on the flow of commerce across borders.”

California argued the state has a right to prohibit the sale of certain products its citizens find immoral. The state’s attorney argued the law does not regulate how producers outside California can raise animals because they can choose not to sell in the state.

“Proposition 12 bars the in-state sale of certain pork products,” said California Solicitor General Michael Mongan. “California voters chose to pay higher prices to serve their local interest in refusing to provide a market to products they viewed as morally objectionable and potentially unsafe.”