Search results for: prop 12

  • As of January 1, 2024, California’s Proposition 12 law is fully in effect. Passed as a ballot measure in 2018, Prop 12 prohibits the sale in California of meat and eggs produced under certain farming practices. We have previously covered Prop 12 extensively, including its introduction, finalized regulations, and a Supreme Court case challenging its constitutionality.
  • Under Prop 12, farm owners and operators may not knowingly cause any covered animal to be confined in a cruel manner, meaning chickens, breeding pigs, and calves must not be confined in an enclosure that fails to comply with standards specified for each species. Eggs, veal, and pork products that do not comply with these standards are banned from sale in California.
  • In addition to a requirement for each species to be able to lie down, stand up, fully extend limbs, and turn around freely:
    • Egg-laying hens must be in a controlled environment that allows hens to exhibit natural behaviors, and must meet the United Egg Producers’ Guidelines for Cage-Free Housing;
    • Veal calves must have at least 43 square feet of floorspace per calf; and
    • Breeding pigs must have at least 24 square feet of usable floorspace per pig.
  • Prop 12 has faced industry opposition since its introduction, culminating in a 2023 Supreme Court case that found the law is not an unconstitutional violation of the dormant Commerce Clause. Most recently, a Missouri senator has introduced a bill that would preempt Prop 12. The bill has been referred to the Senate Agriculture, Nutrition, and Forestry Committee.
  • Keller & Heckman will continue to monitor Prop 12’s impacts as it is implemented.
  • 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.
  • On September 27, agriculture industry groups, including the National Pork Producers Council (NPPC) and American Farm Bureau Federation (AFBF), petitioned the U.S. Supreme Court to review the Ninth Circuit’s decision to uphold California’s Proposition 12, which is a ballot initiative that was passed by California voters in November 2018 and established new standards of confinement of certain farm animals and bans the sale of eggs, veal, and pork products that do not comply with those standards (subscription to Law360 required).
  • As our readers know, in July of 2021, the U.S. Court of Appeals for the Ninth Circuit ruled against the NPPC and AFBF in their challenge to Prop 12. In a unanimous decision, the Ninth Circuit affirmed the dismissal of the groups’ challenge to the law, stating that the law correctly regulates in-state and out-of-state actions in the same way. The panel also noted that precedent dictates a state law can only be found to violate the dormant commerce clause in “narrow circumstances” and the law’s alleged “upstream effects” on out-of-state producers do not qualify.
  • The NPPC and AFBF state that the district and appeals courts’ decisions should be overturned. NPPC President Jen Sorenson said “We’re asking the Supreme Court to consider the constitutionality of one state imposing regulations that reach far outside its borders and stifle interstate and international commerce.”
  • Notably, this is not the first challenge to Proposition 12 to go before the U.S. Supreme Court. The North American Meat Institute (NAMI) previously petitioned the Court to hear its case regarding the constitutionality of Prop 12, arguing that the Ninth Circuit’s decision in its case conflicts with holdings by other appellate courts and the U.S. Supreme Court. However, the Supreme Court denied the request for review on June 28 and offered no explanation for its decision.
  • Keller and Heckman will continue to monitor challenges to California’s Proposition 12 and report on any updates.
  • On August 20, 2021, an Iowa federal judge dismissed a May 2021 lawsuit filed in Iowa federal district court by the Iowa Pork Producers Association (“IPPA”) and three Iowa pork companies, challenging the constitutionality of California’s Proposition 12 (“Prop 12”), California’s animal welfare law affecting food producing animals.  The U.S. District Court for the Northern District of Iowa granted California’s motion to dismiss after concluding that Iowa pork producers failed to establish that the court had personal jurisdiction over the California state officials named in the case.  Additionally, the court concluded that the complaint failed because Prop 12 applies generally to pork and veal production without regard to the state of origin.
  • 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.  The 2018 law amended the existing California Health and Safety Code provisions for Farm Animal Cruelty, regulating the treatment of farm animals.  Meat producers, farmers, and agricultural associations have repeatedly challenged the constitutionality of Prop 12, arguing that it violates the Constitution’s commerce clause by placing an undue burden on interstate commerce.
  • The dismissal in Iowa is another loss for the animal agricultural industry, as the courts dismissed a similar lawsuit in May 2020.  In addition, the North American Meat Institute (NAMI) failed to convince the U.S. Court of Appeals for the Ninth Circuit to ban the implementation of Prop 12 in late 2020, and the Supreme Court declined to hear an appeal of the NAMI case.  Prop 12 challenges continue, as Senators from Kansas, Iowa, Mississippi, and Texas recently introduced a bill, the Exposing Agricultural Trade Suppression Act (EATS Act), in August 2021, but the bill has yet to reach the Senate.
  • Keller and Heckman will continue to monitor this matter and report any updates.
  • 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.