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Supreme Court Pork Case Could Provide Roadmap for Moral Warfare

Oct. 11, 2022, 8:45 AM

The Supreme Court will consider how California regulates living conditions for pigs raised for meat in a case with implications for the $26 billion US pork industry as well as state efforts to address everything from abortion to climate change.

At issue in National Pork Producers Council v. Ross to be argued on Tuesday is a 2018 proposition approved by California voters which prohibits the sale of pork in the state if it was produced using inhumane breeding methods.

Proponents of the law say it’s simply meant to set standards for the production of pork products sold within the state, while opponents say it’s a road map for both red and blue states to try to export their moral judgments across state lines.

The case “would trigger harmful interstate trade wars as other states attempt to mimic California’s regulatory strategy,” said Jonathan D. Urick, associate chief counsel for the US Chamber Litigation Center. The group filed an amicus brief in support of the pork producers.

Proposition 12 prohibited the sale of pork in California if pigs are raised in breeding pens that don’t allow sows to turn a full circle. “Hardly any commercially bred sows are housed” in compliance with Prop. 12, the National Pork Producers Council says in its brief.

Since more than 99% of pork sold in California is produced outside of the state, the law has almost completely extraterritorial effects, which the pork producers say violates the Dormant Commerce Clause. That clause prohibits laws that discriminate against out-of-state commerce.

California argues that while the law may have some extraterritorial effects, it’s primarily designed to protect consumers in the state.

The same regulatory model could allow Democratic-controlled states to target carbon-heavy products next. Or Republican-controlled states could take aim at companies in states with more liberal abortion laws or progressive diversity, equity and inclusion initiatives.

“States that disapprove of their neighbors’ policies on any variety of social or political issues—guns, abortion, or voting procedures, etc.—can simply condition access to their markets on correction of the perceived flaw,” the North Carolina Chamber Legal Institute warned in a friend-of-the-court brief siding with pork producers. And that’s a tactic that can “be applied at either end of the political spectrum.”

To avoid that kind of “economic warfare,” the North Carolina group said, the justices should revive the suit, which lower federal courts dismissed.

Middle Ground

But the case isn’t all-or-nothing, said Megan Wold, a partner at Cooper & Kirk who filed an amicus brief.

There are both constitutional and political limits that could protect against the extreme outcomes prophesied by Prop 12’s challengers.

One is the Dormant Commerce Clause, which the opponents are seeking to wield in this case.

Urick said the mismatch between how much pork is produced in California—less than 1%—and the amount of pork production the law would effect—more than 99%—makes it “blatantly obvious that California is attempting to impose its policy preferences on 49 other states.”

“If Proposition 12 is allowed to stand, those producers will be required to spend hundreds of millions of dollars—potentially bankrupting costs—to retrofit their facilities in hopes of complying with the law, even though the choice was not California’s to make,” Urick said in his brief for the chamber.

But even if the Supreme Court ultimately upholds Prop 12, the Dormant Commerce Clause could still be a barrier to laws that lack a sufficiently “close nexus between the product to be sold and the means of production,” Wold said.

The California law, Cornell Law professor Michael Dorf says, is intended to protect consumers there who otherwise wouldn’t be able to tell if their pork was raised using inhuman procedures. But take a hypothetical ban on the shipment of abortion pills within a GOP-led state, he said.

It’s hard to argue that an all-out ban on abortion pills is protecting a person who would otherwise wish to use them, Dorf said.

Moreover, “the reason for restricting in-state sales is not pegged to the product’s production at all but to the laws of the state where it was produced,” Wold said. Such laws are likely to be found to discriminate against out-of-state commerce—something the dormant commerce clause is specifically intended to prohibit, she added.

Additional Checks

The Dormant Commerce Clause isn’t the only protection against the kind of economic warfare opponents of Prop 12 fear. Congressional power to preempt state laws that impact interstate commerce is another legal check on unbridled state action, Wold said.

Those challenging state laws that have extraterritorial effect could point to existing laws that limit or prohibit state operation in the area. “Or, if no existing federal law preempted the new state law, Congress could step in and pass one to preempt the new state law,” Wold said.

Additionally, a state’s own political process is likely to be a check on these kinds of laws, Dorf said, noting that Prop 12 is unquestionably going to raise prices.

Consumers’ and producers’ interests are typically aligned in keeping prices low, however. In most cases, “in-state political interests are a pretty good check,” Dorf said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com