It's fair to say Big Meat — and Big Pork, specifically — has been feeling angst ever since the U.S. Supreme Court held California's Proposition 12 did not run afoul of the dormant Commerce Clause of the Constitution.
Under Prop 12, if a producer wants to sell pork in California it must give sows 24 square feet of living space – full stop. Doesn't matter if the sow in question is a California resident or comes from outside the state.
California Superior Court Judge James P. Arguelles approved a joint stipulation that delays the law from going into effect until Jan. 1, 2024, to give the pork industry time to adjust to the new normal.
But the National Pork Producers Council only asked the courts to rule on the Commerce Clause, and not a host of other possible constitutional questions.
In NPPC v. Ross, Justice Brett M. Kavanaugh took the NPPC to school on what it should have done:
“Although the Court today rejects the plaintiffs’ dormant Commerce Clause challenge as insufficiently pled, state laws like Proposition 12 implicate not only the Commerce Clause, but also potentially several other constitutional provisions, including the Import-Export Clause, the Privileges and Immunities Clause, and the Full Faith and Credit Clause.”
Homer Simpson head slap.
It turns out Missouri-based pork producer Triumph Foods was paying attention. The company sells pork in lots of places, including Massachusetts, which is in the process of instituting its Act to Prevent Cruelty to Farm Animals (Question 3), a law similar to Prop 12.
In its lawsuit filed last month, Triumph Foods follows Kavanaugh's writings almost word for word:
“The Act’s discriminatory purpose and effect further violates the rights of Plaintiffs under the Privileges and Immunities Clause, the Full Faith and Credit Clause of Article IV of the United States Constitution, the Due Process Clause of the Fourteenth Amendment to the Constitution, and the Import-Export Clause of Article I of the United States Constitution...The Act is also preempted by the Federal Meat Inspection Act and the Packers and Stockyards Act.”
It's a classic legal strategy. Throw a steaming pile of spaghetti against the wall and see what might stick.
- Violation of Privileges and Immunities Clause: “Due to Massachusetts’ inability to produce enough pork for the demand within its borders, combined with Massachusetts’ small amount of pig farmers and pork processors, the burden of compliance with the Act’s Minimum Size Requirements falls almost entirely on out-of-state pig farmers and pork processors to the benefit of in-state farmers and pork processors.”
- Violation of Supremacy Clause: “Implementation of Question 3 predetermines, from the outset and on the alleged basis of protecting the health of consumers, what pigs are fit for purposes of human consumption. Such predetermination takes the matter out of the hands of the duly appointed federal inspectors in charge of making such decisions.”
- Violation of Full Faith and Credit Clause: “The laws of the states in which Farmer Plaintiffs operate their farms do not subject farmers to prohibitions that rise to the level of the Minimum Size Requirements in the Act, and therefore those states confer a right to Farmer Plaintiffs to house breeding pigs in a manner that is expressly prohibited by the Act and the Regulations.”
- Due Process: “The Act violates the Due Process Clause because it is unconstitutionally vague on its face because it is vague in all its applications.”
- Violation of Import-Export Clause: “The Act and the Regulations, in effect, levy a burdensome duty on out-of-state pork goods because the Act and the Regulations conditions the sale of a good within Massachusetts on the use of Massachusetts’ preferred farming practices in the other states in which sows were farmed.”
Triumph Foods is seeking immediate preliminary and permanent injunctions or, at a minimum, a stay of enforcement until Question 3 is litigated.
Question 3 was supposed to take effect on Aug. 23, but in another Question 3 case – Massachusetts Restaurant Assoc. v. Healey – U.S. District Judge Margaret R. Guzman approved a joint stipulation and motion to stay implementation of Question 3 for at least six months.
In the stay, Triumph agreed to hold off on pushing for preliminary and permanent injunctions pending how Massachusetts ultimately decides what is a “cruelly confined pig.”
No matter how that shakes itself out, it's likely Question 3 will fail on at least one, if not more, of Triumph's constitutional questions. Big Pork is rooting for a win that likely would terminate California's Prop 12.
The welfare of farm animals aside, Prop 12 has opened a can of worms on dormant Commerce Clause cases. For example, could Rhode Island write a law saying it will only accept corn harvested from electric tractors? Could Illinois write regulations saying it will only accept pumpkins from growers planting between such and such a date? The list is endless and mind numbing.
The courts need to provide clarity.
