Search results for: Proposition 2

  • 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.
  • As our readers know, California’s Proposition 12 is a statewide statutory initiative measure that establishes standards of confinement for certain farm animals. Throughout the course of a series of lawsuits, namely in the state case of California Hispanic Chambers of Commerce v. Ross, the state court had previously stayed the enforcement of Proposition 12 for whole pork meat until July 1, 2023.
  • After the U.S. Supreme Court upheld the constitutionality of Proposition 12, the California Department of Food and Agriculture (CDFA)’s Animal Care Program issued a guidance document that suggested, with respect to noncompliant whole pork meat in inventory that was purchased prior to July 1, 2023, it did not intend to exercise enforcement due to limited implementation resources:
    • What do I do with noncompliant whole pork meat in inventory that was purchased prior to July 1, 2023?
    • We recognize that current inventory is transient and as purchases of compliant products begin to be made after July 1, 2023, pork products in current stocks will eventually be cleared from freezers and retail stores in California. CDFA understands that there will necessarily be a period of transition. CDFA reiterates that for the remainder of 2023, we intend to focus our limited implementation resources, not on covered products already in commerce, but rather on 1) outreach to ensure that all distributors who are required to register do so; 2) accreditation of third-party certifying agents so that when third-party certification is required for producers and distributor registrations beginning on January 1, 2024, producers and distributors have more options; and 3) certification of producers and distributors.
  • In accordance with CDFA’s guidance, that Sacramento County Superior Court issued a June 16 order that states that noncompliant whole pork meat already in the stream of commerce and in the possession of an “end user” or “pork distributor” (both terms which are defined in 3 CCR 1322), or an FSIS-inspected establishment, may be sold, transported, or donated through Dec. 31, 2023.
  • To qualify for the exemption, the end user, pork distributor, or FSIS-inspected establishment must self-certify that it or another end user, pork distributor, or FSIS-inspected establishment possessed the product as of July 1, 2023.
  • 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.
  • On January 8, 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) announced proposed Proposition 65 rulemaking that would limit use of the short-form version of the safe harbor warning.  Since it became an option in 2016, manufacturers have gravitated toward the short-form warning, which does not require the disclosure of chemical name(s) in the warning.
  • OEHHA is seeking to limit the use of short-form warnings by proposing various changes, including:
    • Only allowing the short-form warning (a) on products with 5 square inches or less of “label space” (which is not defined) and (b) when the standard warning will not fit.
    • Prohibiting the short-form warning for internet and catalog sales (even if the short-form warning is provided on the product itself in compliance with the regulations).
    • Requiring that the name of at least one chemical per relevant toxicity endpoint be included in the short-form warning; and
    • Including the words “Risk” and “Exposure” in the warning.

Under the proposal, the new warning would read (when warning for both toxicity endpoints), “ WARNING: Cancer Risk from [insert chemical name] and Reproductive Risk from [insert chemical name] Exposure – www.P65Warnings.ca.gov.”  (The existing minimum type size requirements under the current regulations would not change.)  In addition to requiring more transparency concerning the identity of chemicals in the warning, OEHHA intends the proposed changes to dissuade businesses from over-warning.

  • OEHHA is accepting comments on the proposal through March 8, 2021.  Keller and Heckman LLP attorneys actively advise clients on compliance issues and enforcement actions under Proposition 65.  If you have any questions concerning the proposed rulemaking or other Proposition 65 matters, please email prop65@khlaw.com.
  • On August 4, 2020, the Office of Environmental Health Hazard Assessment (OEHHA) gave notice of their proposal to amend the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65” or “the Act”) by adopting Section 25505 Exposures to Listed Chemicals in Cooked or Heat Processed Foods.
  • Under the existing regulation for naturally occurring chemicals in foods, a chemical is naturally occurring only to the extent that the chemical “did not result from any known human activity.”  Currently, chemicals in food created by cooking or heat processing are not considered to be naturally occurring in Section 25501.  However, this proposed amendment draws a distinction between exposures to listed chemicals in food that result from cooking or heat processing that cannot be feasibly avoided and those that can be feasibly avoided.
  • In its initial statement of reasons, OEHHA states that some degree of formation of listed chemicals in many foods is unavoidable when the foods are cooked or otherwise processed with heat and that the chemicals are byproducts of the processing, as opposed to being the intended result.  Although OEHHA acknowledges that certain amounts of these chemicals are unavoidable, OEHHA added that in many circumstances, the level of the chemical formed can be lowered by optimizing certain practices.
  • The proposed amendment states that “a person who is otherwise responsible for an exposure to a listed chemical in food does not ‘expose’ an individual within the meaning of Section 25249.6 of the Act, to the extent that the chemical was created by cooking or other heat processing if the producer, manufacturer, distributor, or holder of the food has utilized quality control measures that reduce the chemical to the lowest level feasible.”  As a result, the proposed amendment establishes maximum concentration levels for listed chemicals in foods that are produced by cooking or heat processing that are deemed by OEHHA to be the lowest levels currently feasible.   Concentrations of a chemical at or below the level identified for the specified products would not require a warning.
  • Notably, the proposed amendment includes concentration levels for acrylamide in products, like bread, cookies, crackers, potato products, prune juice, and waffles, that are deemed to comply with the proposed amendment.  We note that these levels do not relate to exposures that are below the safe harbor levels for these compounds.  In addition to acrylamide, OEHHA also notes that it could add other foods or chemicals in future rulemaking.
  • The proposed amendment would not apply to parties to an existing court-ordered settlement or final judgment establishing a concentration of acrylamide in a specific product covered in that settlement or judgment.   OEHHA is accepting comments on the proposed amendment until October 6, 2020.
  • Keller and Heckman lawyers are experienced with advising on Proposition 65.  We will continue to monitor any developments.