Gary Baise Commentaries

California’s Prop 12 goes to court – again

If the rule is allowed U.S. hog farms will be subject to out-of-state auditors and inspectors.

An 8,000-word brief on behalf of hog producers was filed Jan. 14 by the National Pork Producers Council and the American Farm Bureau in the U.S. Court of Appeals for the 9th Circuit in California. The outcome will determine if California can start telling American farmers what they can produce and how they produce it, or their product will be banned from being sold to California’s 40 million consumers.

The case is another attempt to overturn California’s Prop 12, a rule the farm groups believe violates the Commerce Clause of the U.S. Constitution by imposing arbitrary animal housing standards that reach outside of the state’s borders to farms across the country.

The two plaintiffs “…allege that these significant burdens on interstate commerce vastly outweigh [California’s] Proposition 12’s minimal benefit to sow welfare…”

There is a substantial amount of legal argument set forth in the brief; there is even a discussion about California’s ban on foie gras.

Readers may remember that NPPC and AFBF filed a 470-paragraph complaint against California’s Proposition 12 (click here for background). The USDA, under the Trump administration, along with 20 states, argued that Proposition 12 on its face violates the U.S. Commerce Clause. These parties have argued that “any cut of pork” exported to California means that “…farmers and consumers everywhere pay for California’s preferred animal-housing methods.”

California wants complete tracing  “…throughout the complex pork-production chain…”

As you can quickly determine, the per-pig implementation costs will be the burden on the suppliers and consumers of pork, nation and worldwide.

California has few hog farms

One interesting fact in the brief is that few hogs are commercially farmed in California. Consequently, the impact of Proposition 12 is almost entirely on producers across the country.

The judges in California have no clue as to Proposition 12’s impact and have ruled against the farmers and farm organizations every time a complaint is filed in a federal court.

As has been pointed out before, two of the intervenors supporting California in its action are the Humane Society of the United States (HSUS) and the Animal Legal Defense Fund (ALDF).

The 49-page NPPC brief argues for the farmer producer, once again, that California’s “Proposition 12 regulates extraterritorially because it impermissibly intrudes into the operations of out-of-state businesses.”

It’s outrageous

One quick reminder of how outrageous Proposition 12 is on the hog producer is that California declares it “…will need to audit and inspect out-of-state facilities to ensure compliance with Proposition 12.” As pointed out in past blogs, this type of direct and intrusive inspection will mean California will start telling American farmers what they can produce and how they produce. If this type of inspection is not invalid as to facility design and production operations, then American farm production is in trouble.

NPPC and AFBF put the issue starkly: “…the state [California] should not be permitted to hide its plans to audit and inspect out-of-state sow farms…if it is to enforce its extraterritorial law…”

Interstate commerce burdens

The farm organizations argue convincingly that California’s Proposition 12 burdens interstate commerce. “The burden of Proposition 12 unquestionably falls mainly on out-of-state businesses because 99.8% of pork consumed in California comes from farmers located outside the state…”

California argues since most producers are located out-of-state there is no discrimination. California has the audacity to say there is no discrimination because they treat their pork producers the same way.

Examples of the harm of Proposition 12 is explained by Phil Borgic, an Illinois hog producer whom many reading this blog know.  Mr. Borgic states under oath that California’s Proposition is cost prohibitive because it will require him “…to spend $3 million retrofitting his farm or reduce his herd size by a third, destroying his farm’s productivity and making him unable to meet his contractual commitments to deliver hogs.”

A hog farmer from Missouri, Greg Maher, states his “…inability to bear the construction costs and productivity losses from complying with Proposition 12 means that he may have to exit the business.” Mr. Maher attempted to comply with California’s rules but found “…his sow-mortality rate skyrocketed along with his production costs.”

Only lawyers from California would argue a position this ludicrous.

I assume the 9th Circuit, being the 9th Circuit, will hand a loss to NPPC and AFBF. We must hope and pray that this matter is accepted by the U. S. Supreme Court and common sense will prevail for the American farmer.