Search results for: Proposition 2

  • As a direct response to California’s Proposition 12, Missouri Senator Josh Hawley has introduced the Protecting Interstate Commerce for Livestock Producers Act with the goal of protecting farmers from state regulations that some critics have claimed will hurt their business and drive up costs for consumers.
  • As we have previously blogged, the U.S. Supreme Court in May upheld California’s Proposition 12, which requires that eggs, veal and pork products sold in California must be from animals raised in enclosures meeting certain minimum size requirements, regardless of where the animals were raised. It is estimated that California accounts for 13% of all pork consumption in the US.
  • Senator Hawley’s bill aims to “protect family farms from going bankrupt and consumers from shouldering higher costs at the grocery store,” according to the senator’s press release.  He states that, “Missouri’s livestock producers keep food on the table across America and they shouldn’t be burdened by costly laws – made by other states – that disrupt interstate commerce, drive-up costs, and impose crippling regulations.”
  • To ensure that no state can mandate animal welfare standards in another state, the bill proposes to accomplish the following:
    • Preempt states and local governments from regulating the raising, production, and importation of livestock or livestock-derived good from another state or local government;
    • Allow states to regulate the importation of livestock in the event of animal disease; and
    • Protect farmers from states implementing laws that are preempted by this bill.
  • Keller and Heckman will continue to monitor this bill and will relay any developments.
  • 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.
  • Iowa and 22 states have filed a brief supporting the petition of the Iowa Pork Producers Association (IPPA) to the Supreme Court for a writ of certiorari to review the judgment of the 9th Circuit Court of Appeals in a case involving a challenge to California Proposition 12. Prop 12 is an animal welfare law which prohibits the sale of pork from swine housed in conditions inconsistent with California standards.
  • In National Pork Producers Council (NPPC) v. Ross, the Supreme Court, in a fractured opinion, dismissed a similar challenge to Prop 12 and held that it did not violate the dormant commerce clause.
  • However, IPPA argues that this case presents different questions, in part because it alleges discrimination against out-of-state pork producers. In contrast, NPCC had disavowed any discrimination-based claims in their challenge to Prop 12.
  • The petition for certiorari also requests that the Court address the issue of whether dissenting opinions should be considered in determining a majority opinion on a point of law. In affirming the dismissal of the IPPA challenge to Prop 12, the 9th Circuit applied its own precedent and not the Supreme Court’s precedent in NPPC v. Ross because the “majority of the Justices . . . did not agree upon a single rationale and there is no opinion that can reasonably be described as a logical subset of the other.”
  • A grant of writ of certiorari is up to the discretion of the Supreme Court, but the Court typically considers factors that include the importance of resolving conflicts in judicial interpretations and the significance of the issue(s).
  • Similar to California’s Proposition 12, Massachusetts’ Prevention of Farm Animal Cruelty Act (also known as “Question 3”) imposes animal welfare standards for hens, sows, and veal calves raised in Massachusetts and makes it unlawful for businesses to sell eggs, veal, or pork that they know to be in violation of these standards (even if the animals were raised out of state).
  • A July 22nd order from the U.S. District Court of Massachusetts dismissed a challenge to the law brought by various pork producers, holding that the law was not preempted by the Federal Meat Inspection Act (FMIA) because it does not regulate how slaughterhouses operate. This decision has been appealed to the First Circuit Court of Appeals.
  • Last month the pork producers’ appeal was joined by Iowa (the top pork-producing state) as well as 21 other states. The states’ brief argues that the law will increase costs for pork producers (and prices for consumers) and that such state laws, if upheld, could create a regulatory maze of differing state requirements. We note that such arguments were not foreclosed by the Supreme Court’s 2023 Proposition 12 decision (National Pork Producers Council v. Ross) which held that such laws violate the dormant commerce clause if the “burden imposed on interstate commerce” is “clearly excessive in relation to the putative local benefits.” Nevertheless, it’s not clear how such a fact-based argument can be evaluated on appeal. The states’ brief also latches onto Justice Kavanaugh’s concurring opinion in National Pork Producers Council v. Ross and states that Question 3 “may also implicate other constitutional provisions like the Import-Export Clause and the Full Faith and Credit Clause.”
  • We will continue to monitor and report on this case.  
  • Last month, a California Superior Court dismissed a case against Gulf Pacific Rice Company which alleged that one of their brown rice products contained elevated levels of lead and failed to carry an appropriate warning as required by the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). 
  • Proposition 65 provides a safe harbor where it can be shown that the exposure to the chemical in question is low enough to pose no significant risk of cancer or is significantly below levels observed to cause birth defects or other reproductive harm.  These thresholds below which no warning is needed are referred to as “no significant risk levels” (NSRLs) in the case of carcinogens and “maximum allowable daily levels” (MADLs) for chemicals that cause reproductive harm.
  • The MADL for lead is 0.5 micrograms/day so the question at trial was whether the exposure to lead from consumption of the brown rice product exceeded this level.
  • The Court agreed with Defendant’s calculations indicating that expected exposure was only 0.01 micrograms/day, well within the safe harbor. In so doing, the Court concluded that:
    • It was appropriate to use the geometric mean rather than the arithmetic mean for all calculations, because the geometric mean reduces the effect of outliers and “is the generally accepted scientific method for the determination of the central tendency of a set of data.”  The geometric mean is always equal to or less than the arithmetic mean.
    • An exposure assessment under Proposition 65 should use consumption data from all groups “and is not limited to any specific subpopulation, ethnicity, gender or other subcategory.”
  • However, the Court did reject the Defendant’s constitutional challenges to Proposition 65 as well as the argument that Proposition 65 was preempted by the Federal Food, Drug, and Cosmetic Act. 
  • Keller and Heckman will continue to monitor and report on updates to Proposition 65.