The Biden Justice Department has asked the Supreme Court to strike down California’s Proposition 12, which forbids the sale of pork in California from hogs whose nursing sows were raised in 7 by 2 foot confinement crates. Such sows are not able to lie down, stand up, fully extend their limbs, or turn around. Voters in California passed Proposition 12 in 2018 by a 2:1 margin, with 63% of voters in favor. The Supreme Court will hear oral arguments for the case on October 11.
The National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) petitioned the Supreme Court in September 2021, arguing that Proposition 12 violates the U.S. Constitution’s commerce clause. NPPC claims that the rules would impose “burdensome and unnecessary recordkeeping requirements” among other concerns. The California Grocers Association, also opposes Proposition 12, citing that “the pork industry is ill prepared for the high requirements imposed by Prop 12.”
In an amicus brief vastly divorced from public sentiment, U.S. Solicitor General Elizabeth Prelogar stated California “’has no legitimate interest in protecting’ the welfare of animals located outside the state” and that voters in pork-producing states must determine what constitutes “cruel” treatment of animals housed in those states —not voters in California who consume them.” On the other hand, Senate Agriculture Committee Chair Debbie Stabenow (D-Mich.) has called on USDA Secretary Tom Vilsack to support California’s Proposition 12 before the Supreme Court.
“The authors of this measure were sensitive to the fact that agricultural systems can be complex. The law in question here is pursuant to longstanding state authority with regard to health, safety and morals. Right now, there’s about a dozen states that have said these types of crates are just too far and we’re not going to have them. And then there’s a smaller subset of states that have said we’re not going to allow these products sold in the marketplace,” stated Jonathan Lovvorn, Chief Counsel at the Humane Society of the U.S.
Nursing sow feeding baby piglets.
Andrew DeCoriolis, Executive Director of Farm Forward, observed that “it’s incredibly disappointing to see the government side with the meat industry over the millions of voters in dozens of states that have enacted protections for farmed animals.” Studies have shown that crated sows can suffer from weakened bones, overgrown hooves, urinary tract infections, and other distresses.
A number of special interest groups have filed amicus briefs in support of the petitioners, including the North American Meat Institute, the National Cattlemen’s Beef association, the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Retail Federation, the Food Industry Association (FMI), the North Carolina State Farm bureau and 11 other state farm bureaus. However, a number of smaller pork processors have indicated that they can comply with Prop 12, including Hormel, which owns Applegate, as well as Perdue, which owns Niman Ranch and Coleman Farms.
Austin Frerick, deputy director at the Thurman Arnold Project at Yale University, points out that, “The ones complaining are the industrial operations that pack hogs into metal sheds that never see the light of day or even a blade of grass.” Pork is a $23 billion industry in the United States. Most hogs live in “concentrated animal feeding operations” (CAFOs), or “factory farms”, averaging more than 14,000 animals each. The majority of the 6 million breeding sows spend a significant portion of their pregnancies in gestation crates: 7 by 2 foot metal cages where they can’t stand up, lie down, turn around, or stretch their legs. The pork market is also heavily concentrated. Tyson Foods
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“Not only are Petitioners’ arguments flawed as a reflection of basic economic incentives, but they … [+]
Jonathan Lovvorn explains that “California is 9% of the country’s pork market and 30% of the industry is already crate free. There’s a brief that was just filed by the pork industry’s own experts at U.C. Davis, two professors that were funded to do research for the pork industry on what would Proposition 12 would do. What they say is everything the industry is telling you about the cost of this is not correct and is not borne out by our research.” The amicus brief states that “Not only are Petitioners’ arguments flawed as a reflection of basic economic incentives, but they are factually implausible… the model projects that the average price of uncooked cuts of pork in California will rise by 7.2%… and a 0.3% decrease in the price of hogs that produce non-compliant pork.” These cost variances are minor compared to recent double digit, profit-driven price increases in the pork sector.
Federal regulators cited Smithfield Foods for failing to protect employees from exposure to the … [+]
Lovvorn is also concerned about the legal precedent. “If it’s overturned in the way that the industry is asking for, what they’re saying is that California saying they don’t want this sold is a violation of the Constitution. Essentially, they (hog operations) have a right to set up shop outside of jurisdictions and then sell things into that jurisdiction that are contrary to the laws and ethics of those jurisdictions. If they succeed in getting a ruling like that, it could really be problematic on a number of issues, particularly climate change, but also on a whole host of things that states do that affect products that are sold out of state. In the age of Amazon
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Packaged pork display at a Walmart in Texas.
In an interview with The Checkout Podcast, Professor Silvia Secchi of the University of Iowa explained that agriculture, where 98% of the wealth is in the hands of white people, is one of the least regulated industries in the United States and is extremely adept at academic and regulatory capture. This is particularly the case in hog producing states such as Iowa. Galina Hale, a professor of economics at the University of California, Santa Cruz, says this lack of federal regulations on how animals are raised for food is “a form of a subsidy to factory farming. They are allowed to do whatever they want to increase production per dollar of investment.”
Flood waters spurned by Hurricane Floyd engulfed a hog manure lagoon feeding the Northeast Cape Fear … [+]
Over a third of hogs are raised in Iowa, followed by North Carolina, whose hog operations are concentrated in Black, Latino, and Indigenous communities with high rates of poverty. In 2018, the North Carolina Medical Journal documented that residents who live near hog CAFOs had higher death rates of all studied diseases, and higher rates of infant mortality, anemia, kidney disease, and tuberculosis. And Iowa counties with the most hogs had higher levels of depopulation, job losses and businesses closings, including retailers and grocery stores, subsequently leading to food deserts.
“Iowa is predominantly white and we have CAFOs pretty much all over the state. It’s different in North Carolina because the CAFOs are concentrated in certain parts of the state. There is very clear evidence that these areas were chosen for operations because local communities don’t have the same pull with legislators as white communities,” Professor Secchi stated in a recent article in The Counter. The archipelago of hog manure lagoons and consequent runoff when used as fertilizer are also directly associated with a dead zone in the Gulf of Mexico the size of New Jersey.
Such hog farms, along with meat processing plants, have become mega incubators for pandemics. Rob Wallace, an evolutionary biologist who predicted the Covid-19 pandemic and author of Big Farms Make Big Flu calls factory farms “an explosive evolutionary accelerant” for pandemic pathogens, that “when you populate the globe with cities of hogs and poultry, you’re going to generate novel pathogens.” And an October 2021 US House Select Subcommittee report found that at least 59,000 meat packing workers were sickened by Covid-19 and at least 269 died. Researchers estimate that an additional 5,000 deaths and 330,000 cases could be attributed to the rapid spread in meat facilities.
Hog farm in Iowa.
“When we talk about factory farms and confinement systems, these are integrated threats. They pose problems for animals. They pose problems for the workers, for the environment. They pose problem for consumers and food safety. And so what California is really saying with Proposition 12 is that we don’t want to worry about whether or not these harmful products are in our food supply. We want a food system in California that reflects the values of California,” Jonathan Lovvorn explains.
And California voters are far from alone in that sentiment, despite the Justice Department’s recent amicus filing.
There has been significant retail sales and market share growth of plant-based foods over the past decade, with millions of consumers eating less meat and trying out alternatives. And nearly 60% of U.S. consumers are concerned about animal welfare. According to SPINS, meat with animal welfare claims increased 8.8% to $765 million in annual sales, and crested to 12.4% growth in the past 12 weeks. “There is a growing concern over the treatment of animals in our food supply.” said Dan Buckstaff, CMO at SPINS. “Consumers are turning to meat and poultry products that are raised in a more humane way. Products that are labeled with animal welfare claims are growing at nearly double the rate of meat products without such claims.”
Brands such as Applegate, Coleman, Niman Ranch and Mary’s, as well as retailers such as Natural Grocers, Thrive Market, Whole Foods, Safeway, Aldi and many food cooperatives have made various commitments to sourcing humanely raised meats as well as expanding availability of whole food, plant-based alternatives. Meanwhile, worker-led food justice coalitions such as HEAL Food Alliance and Food Chain Workers Alliance are organizing against CAFOs and meat processors as well as promoting a just transition for their workforce; despite record profits, Smithfield used Prop 12 as a justification to lay off 1800 workers in California.
Professor Christopher Carter, author of The Spirit of Soul Food and a theologian at San Diego University, concludes that “Prop 12 was a milestone proposition because it forces industrial farms to either adjust their husbandry techniques to adhere to the criteria that Californians have decided are humane or to just not sell pork to California.
“If the Supreme Court were to overturn the will of the 63% of voters in California who passed this measure, then this is not only a major setback for farmed animal advocacy, it also undermines a citizen’s belief that our democratic system can be used to effectively confer rights upon a marginalized group if the giving of those rights presents an “undue burden” on corporations. As an African American, these originalist interpretations of the Constitution feel eerily familiar to the ways laws were interpreted for hundreds of years before the Civil Rights movements of the 1960’s.”