Search results for: Proposition 2

  • As we have previously blogged, the U.S. Supreme Court upheld California’s Proposition 12 (Prop 12) on May 11, 2023, which bans the sale of pork in California unless breeding pigs (sows) are allowed at least 24 sq. ft. of space and the ability to stand up and turn around in their pens.  The decision has left the pork industry with many questions regarding implementation, including how to market and advertise pork products as Prop 12 compliant.
  • Prop 12 does not contain any explicit language that addresses Prop 12 disclaimers to be marketed to consumers.  The only explicit language discussed is in section 1322.4(a), which states that shipping documents shall include the statement “Pork CA Prop 12 Compliant,” to be affixed to bulk shipping containers sent to retailers.  California’s Animal Health and Food Safety Services Division (AHFSS) has not promulgated any regulations that demonstrate what kinds of advertising phrases would be acceptable.  The Final Statement of Reasons also does not speak on advertising language.
  • While federal agencies are not subject to Prop 12 requirements, the U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) will review Prop 12 compliance/exemption claims as voluntary labeling claims.  Through AskFSIS, FSIS stated that it considers Prop 12 claims to be special claims that require FSIS label approval before they can be used on labels in commerce (9 CFR § 412.1).  FSIS will not approve labels with a statement such as “California Prop 12 Complaint” without further explanation on the label.  Information related to animal raising conditions may be a claim that FSIS could approve, provided the label explains the meaning of the claim and adequate supporting documentation is submitted with the label approval.  Further explanation on the label is also needed for Prop 12 exemption claims.
  • Keller and Heckman will continue to monitor and relay the developments of Prop 12 regulations and implications.
  • In November 2018, California voters passed a ballot initiative known as Proposition 12 (the Prevention of Cruelty to Farm Animals Act), which is covered on our blog.  The Act builds on Proposition 2 from 2008, a measure that banned keeping hens, calves, and pigs in cramped cages but lacked specific size requirements and did not apply to out-of-state farmers.  Proposition 12 outlines specific size requirements and applies to out-of-state farmers that sell eggs, veal and pork in California.  As discussed here, two lawsuits by national agricultural groups allege that Proposition 12’s sales ban violates the Constitution’s dormant commerce clause by placing an undue burden on out-of-state veal and pork producers.  On March 28, 2022, the U.S. Supreme Court granted a Writ of Certiorari petition submitted by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) in National Pork Producers Council v. Karen Ross. 
  • In a 5-4 decision on May 11, 2023, the Supreme Court upheld Proposition 12, finding the law is not an unconstitutional violation of the Court’s dormant Commerce Clause precedents.  Under the dormant Commerce Clause theory, the Commerce Clause of the U.S. Constitution not only vests Congress with the power to regulate interstate trade, but also forbids state economic regulations that purposefully discriminate against out-of-state economic interests.  While not disagreeing that the law may impose substantial new costs on out-of-state pork producers who wish to sell their products in California, the Court rejected the petitioners’ contention that the Court’s dormant Commerce Clause cases suggest an “almost per se” rule forbidding enforcement of state laws that have the “practical effect of controlling commerce outside the State,” even when those laws do not purposely discriminate against out-of-state interests.  The Court also rejected the petitioners’ alternative argument that the dormant Commerce Clause prevents a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms if the law’s burdens are “clearly excessive in relation to the putative local benefits.” 
  • California’s humane pork law was upheld despite the Biden administration’s concerns that the decision would substantially disrupt the nation’s pork market. 
  • On April 27, a federal judge dismissed a lawsuit challenging California’s Proposition 12, which established new standards for confinement of certain farm animals and bans the sale of products that do not comply. Specifically, Proposition 12 requires that all eggs sold in the state come from cage-free hens by 2022, and it also bans the sale of pork and veal in California from farm animals raised in cages that do not meet new minimum size requirements. The court rejected claims by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (Farm Bureau) that the animal welfare standards set by Prop 12 are unconstitutional.
  • In the lawsuit, the NPPC and Farm Bureau argued that Proposition 12 violates the Commerce Clause of the U.S. Constitution because it would force out-of-state hog farmers who sell pork to California to meet the new space requirements, thus violating the extraterritorial principle by regulating wholly out-of-state conduct and imposing a substantial burden on interstate commerce. Iowa, Ohio, Texas, and several other states and industry groups, including the National Cattlemen’s Beef Association, backed the complaint, which was filed in December 2019.
  • U.S. District Judge Thomas J. Whelan disagreed with the NPPC and Farm Bureau stating that “a statute that applies both to California entities and out-of-state entities does not target wholly extraterritorial activity.” He further held that even when a statute has extraterritorial effects it passes Commerce Clause muster when those effects result from the regulation of in-state conduct. A statute violates the extraterritorial principle when it is directed at interstate commerce only, which was not the case here. Proposition 12 does not require uniform practices throughout the entire country, but rather only requires that producers who sell directly to California follow the regulations.
  • Judge Whelan also rejected the claim that Proposition 12 places a substantial burden on interstate commerce: “[a]lthough Proposition 12’s regulations may burden pork producers and result in a less efficient mode of operation, there is no burden on interstate commerce merely because it is less profitable than a preferred method of operation.”
  • The court granted defendants’ motion to dismiss. The NPPC and Farm Bureau have 14 days to file an amended pleading.
  • As our readers may know, in November 2018, California voters passed a ballot initiative known as Proposition 12, which establishes new standards for confinement of certain farm animals and bans the sale of products that do not comply with the new confinement standards. Specifically, Proposition 12 requires that all eggs sold in the state come from cage-free hens by 2022, and it also bans the sale of pork and veal in California from farm animals raised in cages that do not meet new minimum size requirements. Therefore, farmers across the country who sell eggs, veal, and pork in California will be required to comply with Proposition 12.
  • In a lawsuit filed on October 4, 2019, the North American Meat Institute (NAMI) argues that Proposition 12 impedes interstate commerce and violates the Constitution’s commerce clause by banning the sale of pork and veal imported from other States unless they comply with Proposition 12’s animal-confinement standards. “This case is about whether California can insulate its farmers from out-of-state competition and project is agricultural regulations beyond its borders…” NAMI requests the U.S. District Court for the Central District of California stop implementation and enforcement of the law and issue a declaration that these requirements are unlawful under federal law.
  • We will continue to monitor developments in this challenge to California’s Proposition 12.
  • During the November 2018 election, California voters passed a ballot initiative known as Proposition 12, which establishes new standards for confinement of certain farm animals and bans the sale of products that do not comply with the new confinement standards.  The ballot initiative amended an existing California Health and Safety Code section, Chapter 13.9 (“Farm Animal Cruelty”).  The original law imposed minimum space requirements based on animal movement (e.g., ability to fully extend limbs) for calves raised for veal, breeding pigs, and egg-laying hens, but the new law establishes minimum square footage requirements for the same farm animals.  The law continues to ban products from animals raised in conditions that do not comply with the law.
  • Existing requirements still apply that prevent confining an animal in a “manner that prevents the animal from lying down, standing up, fully extending the animal’s limbs, or turning around freely.”  However, Proposition 12 phases in new requirements that over time, as follows:
    • After December 31, 2019, veal calves cannot be confined with less than 43 square feet of usable floorspace per calf, and egg-laying hens cannot be confined with less than 144 square inches of usable floorspace per hen.
    • After December 31, 2021, breeding pigs cannot be confined with less than 24 square feet of usable floorspace per pig, and egg-laying hens cannot be confined with less than the amount of usable floorspace per hen required by the 2017 edition of the “United Egg Producers’ Animal Husbandry Guidelines for U.S. Egg-Laying Flocks: Guidelines for Cage-Free Housing” or in an enclosure other than a cage-free housing system.
  • Interestingly, animal rights group PETA (People for the Ethical Treatment of Animals) did not support Proposition 12, alleging that the law did not go far enough to protect animal welfare.  Even before Proposition 12, California’s Prevention of Farm Animal Cruelty Act had its share of detractors.  As previously reported on this blog, 13 other states are challenging the law before the Supreme Court.
  • After the mid-term election earlier this month, California made cage-free eggs a state law. With 62% of the votes, California voters overwhelmingly approved Proposition 12, also known as the Prevention of Cruelty to Farm Animals Act, which requires that all eggs sold in the state come from cage-free hens by 2022. Proposition 12 also bans the sale of pork and veal in California from farm animals raised in cages that do not meet new minimum size requirements. In other words, farmers across the country who sell eggs, veal, and pork in California will be required to comply with Proposition 12.
  • The Act builds on a measure passed in 2008, Proposition 2, which banned keeping hens, calves, and pigs in cramped cages. While that measure took effect in 2015, it lacked specific size requirements and did not apply to out-of-state farmers who sold in California. Proposition 12 outlines specific size requirements and applies to out-of-state farmers that sell eggs, veal and pork in California. Starting in 2020, calves must have at least 43 square feet (4 square meters) of usable floor space, while breeding pigs must have at least 24 square feet (2.2 square meters) of floor space by 2022. By 2020, egg-laying hens must be given 1 square foot (144 square inches) of floor space each, until 2022 when all egg-laying hens must be cage-free.
  • Both the Sierra Club and the Humane Society of the United States supported California’s Proposition 12, while groups like the Association of California Egg Farms, the California Pork Producers Association, and National Pork Producers Council opposed the measure and argued it will cause consumers to pay more for eggs, veal, and pork. Nonetheless, supporters of the measure are understandably pleased with the outcome. Sara Amundson, president of the Humane Society Legislative Fund, stated that “the passage of Proposition 12 is groundbreaking for the welfare of animals and has raised the bar at an important time in our consideration of what farm to table means in this country.”
  • The California Department of Food and Agriculture and the California Department of Public Health are responsible for the implementation of and compliance with Proposition 12. Violations of the measure are classified as misdemeanors, with fines reaching up to $1,000.
  • With the passage of Proposition 12, California is following Massachusetts, which passed the Massachusetts Minimum Size Requirements for Farm Animal Containment (known as Question 3) in November of 2016. Proposition 12 is identical to the Massachusetts law in that it bans the sale of products from pigs, calves, and hens that are not provided with adequate floor space and is to take full effect in 2022. The Humane Society of the United States also supported the Massachusetts measure.
  • California’s Department of Food Agriculture (CDFA) recently published its finalized animal confinement regulations, codified at 3 C.C.R. § 1320-1326, as well as the accompanying Final Statement of Reasons. The finalized regulations are largely identical to the proposed second modified text, published in June.
  • By way of background, California’s Proposition 12 establishes standards for the confinement of certain farm animals (breeding pigs, calves raised for veal, and egg-laying hens) and bans the sale of eggs, veal, and pork products that do not comply with those standards (see our previous blogs here and here).
  • As our readers know, enforcement of California’s Proposition 12 was delayed for some stakeholders in January 2022, after a judge for the Superior Court in Sacramento County ordered that grocers, restaurants, and retailers would not be subject to enforcement of the new restrictions on whole pork meat sales until six months after the state enacted its final regulations. An appeal was filed by the State of California and is currently pending.
  • In addition, Proposition 12 is currently being litigated in the U.S. Supreme Court, after several agricultural groups petitioned the court to review a Ninth Circuit Court decision to uphold Proposition 12, alleging that the law’s national impact on pork producers is an undue burden on interstate commerce. The case remains ongoing. Keller and Heckman will continue to monitor this matter and report on any updates.
  • As previously reported,  on March 28, 2022, the U.S. Supreme court granted a Writ of Certiorari petition submitted by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) in National Pork Producers Council v. Karen Ross. The petitioners argue that California’s Proposition 12 places excessive burdens on interstate commerce in violation of the Commerce Clause. By way of background, California’s Proposition 12, also known as the Prevention of Cruelty to Farm Animals Act, establishes new standards for confinement of certain farm animals (breeding pigs, calves raised for veal, and egg-laying hens) and bans the sale of products from such animals not raised under minimum confinement standards in California.
  • On June 17th, the U.S. Government and the U.S. Solicitor General filed an amicus brief in support of the NPPC and AFBF’s challenge to California’s Proposition 12. The brief states that the U.S. Government has a substantial interest in this question because, under the Animal Health Protection Act and the Federal Meat Inspection Act, the federal government has the responsibility to guard against disease in interstate commerce, as well as to ensure the free flow of interstate commerce. To that end, the amicus brief argues that the state of California does not have a legitimate interest in protecting the welfare of animals outside of its borders and that it may not extend its police power beyond its jurisdictional bounds. The brief states that it is not taking a position on whether Proposition 12 is unconstitutional but rather that the petitioners have plausibly alleged that the measure will have substantial adverse impacts on the interstate pork market and that, if those assertions are proven, the burdens would be “clearly excessive.”  The brief concludes that the judgment of the court of appeals should be remanded for appropriate proceedings.
  • This filing comes after a coalition of representatives urged the Solicitor General to support Proposition 12. The Supreme Court case is set to be heard on October 11, 2022. Keller and Heckman will continue to monitor this matter and report on any updates.
  • On Monday, March 28th, the U.S. Supreme Court granted a Writ of Certiorari petition submitted by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) in National Pork Producers Council v. Karen Ross.  The suit alleges that Proposition 12 in California violates the Constitution’s dormant commerce clause by placing an undue burden on pork producers nationally.
  • Proposition 12  establishes new standards for confinement of certain farm animals (breeding pigs, calves raised for veal, and egg-laying hens) and bans the sale of products from such animals not raised under minimum confinement standards in California. The law is not limited to producers in California. Therefore, farmers across the country who sell pork, veal, and eggs in California must comply with Proposition 12.
  • By way of background, on September 27, 2021 several agricultural groups, including NPPC and AFBF, petitioned the Supreme Court to review the Ninth Circuit’s decision to uphold California’s Proposition 12, alleging that the law’s national impact on pork producers is an undue burden on interstate commerce.  This is not the first Proposition 12 petition to go before the Supreme Court. In June 2021, the Court denied the North American Meat Institute (NAMI) request to review the Ninth Circuit’s decision to uphold Proposition 12.
  • On January 24, Judge James P. Arguelles for the Superior Court in Sacramento County ordered an enforcement delay of a part of California’s Proposition 12. Judge Arguelles ruled that grocers, restaurants, and retailers would not be subject to enforcement of the new restrictions on whole pork meat sales until six months after the state enacts final regulations. The ruling comes in response to a January 21 hearing for a prohibitory writ of mandate and complaint for declaratory and injunctive relief, petitioned by the California Hispanic Chambers of Commerce, Kruse & Son, Inc., California Grocers Association, California Restaurant Association, and the California Retailers Association.
  • As a recap from our 2019 blog post on Prop 12, California voters passed this law as a ballot initiative in the November 2018 election. The new law established the standard for confinement of certain farm animals and bans the sale of eggs, veal, and pork products that do not comply with the new confinement standards. In 2019 and 2020, the California Department of Food and Agriculture (CDFA) solicited input from stakeholders regarding the regulatory framework for Prop 12, with specific focus on production facility registration, certification, verification audits or inspections, border station inspections, and a penalty matrix for violations including an appeal process. In May 2021, CDFA and the California Department of Public Health (CDPH) published proposed regulations, which triggered a 45-day public comment period. The revised proposed regulations were published on December 3, 2021 and had a 15-day comment period. Final regulations are not yet in effect, but some grocery store chains and pork suppliers have issued statements of compliance with the Act while awaiting the final regulations.
  • However, the petitioners in the instant proceeding argued that, without final regulations, they should not be subject to penalties associated with sales of nonconforming whole pork meat. Petitioners asked the court to (1) declare the square-footage requirement unenforceable absent final regulations, (2) delay enforcement of the same requirements until 28 months post-publication of final regulations, and (3) bar the CDFA and CDPH from enforcing the square-footage requirements for 28 months post publication.
  • In the order, Judge Arguelles held that, because the Act required the promulgation of final regulations by September 1, 2019, a delay in enforcement was warranted but disagreed that a 28 month delay was appropriate because “[t]he court must be mindful of the Act’s concern about cruel confinements, and the enforcement delay must not exceed a period that is necessary. Thus, he ordered the court’s writ to remain in effect until 6 months post-publication of the final regulations.