North American Meat Institute To Supreme Court: Prop 12 Not Beneficial To Consumers, Increases Sow Mortality

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The North American Meat Institute (the Meat Institute) today said the State of California’s Proposition 12 (Prop 12 or the law) provides no benefit to consumers and increases breeding sow mortality according to the State’s own proposed rule.

“The recently proposed rule by the California Department of Food and Agriculture (CDFA) admits there are no benefits to Californians as a result of Prop 12. CDFA admits deaths of breeding sows will increase. Both are unintentional consequences of a costly and unconstitutional law,” said Julie Anna Potts, President and CEO of the North American Meat Institute. “Our petition to challenge the law has the support of more than 20 states and we think it should be reviewed by the Supreme Court.”

CDFA released the proposed rule, originally due in September of 2019, late last month.

The following are key findings in the notice published along with the proposed rule:

• Estimated costs for businesses to comply regarding pork: “Estimated ongoing cost is greater than the initial cost of conversion at $100,000 per year for a typical breeding pig farm due to smaller inventory of breeding pigs, lower piglet output per animal and increased breeding pig mortality.”

• CDFA acknowledges that animal confinement space allowances prescribed in the Act (cage-free for egg-laying hens, 43 square feet for veal calves and 24 square feet for breeding pigs) “are not based in specific peer-reviewed published scientific literature or accepted as standards within the scientific community to reduce human food-borne illness, promote worker safety, the environment, or other human or safety concerns.”

• “This proposal does not directly impact human health and welfare of California residents, worker safety, or the State’s environment…”

• CDFA also identified higher costs for schools, universities, prisons, and county jails. And discussing “Benefits to human health, worker safety, or the State’s environment” CDFA said “The Department has made an initial determination that the proposed regulatory action will have significant, statewide adverse economic impact directly affecting California businesses including the ability of California businesses to compete with businesses in other states.”

• Finally, the agency identified an impact Prop 12 is likely to have – forcing low income consumers to pay more for food. “Covered pork, and especially covered egg products will become more expensive to consumers starting in January 2022 because of the animal confinement standards mandated in statutes. … Therefore, the Act will disproportionately reduce food purchasing power of low-income consumers. … Food consumers most affected will be those low-income consumers that are not enrolled in assistance programs.”

The text of the notice and proposed rule can be found here.

The Meat Institute made the remarks in a reply brief in support of its petition to the U.S. Supreme Court for a writ of certiorari to the United States Court of Appeals for the Ninth Circuit, and in response to the defendants’ previously submitted briefs.

In addition, the reply brief said the Ninth Circuit’s decision to uphold California’s unconstitutional and costly Proposition 12 directly conflicts with legal precedent in other circuits and the Supreme Court itself, making it the perfect vehicle to consider extraterritoriality. The reply brief can be found here.

In February, the Meat Institute filed a petition for a writ of certiorari asking the Supreme Court to review an earlier ruling of the U.S. Court of Appeals for the Ninth Circuit in the Meat Institute’s challenge to the constitutionality of California’s Proposition 12: The Farm Animal Confinement Initiative. The Meat Institute opposes the law because it is unconstitutional and will hurt the nation’s food value chain by significantly increasing costs for producers and consumers. The petition may be found here, appendix here.

In March, 20 state attorneys general filed an amicus curiae brief with the Supreme Court supporting the petition.

The question is whether the U.S. Constitution permits California to extend its police power beyond its territorial borders by banning the sale of wholesome pork and veal products sold into California unless out-of-state farmers restructure their facilities to meet animal-confinement standards dictated by California.

The Meat Institute urged the Court to grant review because the “Ninth Circuit’s decision conflicts with the decisions of other federal courts of appeals on the question whether the Constitution limits a State’s ability to extend its police power beyond its territorial borders through a trade barrier dictating production standards in other States and countries.” Allowing Prop 12 to stand “insulates in-state farmers from out-of-state competition, while imposing crushing burdens on out-of-state farmers and producers who have no political voice to shape the regulations that California has unilaterally determined to foist upon their operations outside of California.”

The North American Meat Institute is the leading voice for the meat and poultry industry. The Meat Institute’s members process the vast majority of U.S. beef, pork, lamb, and poultry, as well as manufacture the equipment and ingredients needed to produce the safest and highest quality meat and poultry products.