When Pigs Won’t Fly: How the U.S. Pork Industry Could Change State Regulatory Powers in National Pork Producers Council v. Ross

*James Duffy

On October 11, 2022, the Supreme Court heard oral arguments in a case that could drastically change the future of state policymaking.[1] The case concerns a narrow issue involving a California animal welfare law.[2] In National Pork Producers Council v. Ross, the Court will decide the fate of an industry challenge to California’s Proposition 12.[3] The pork industry has challenged this law, which mandates specific welfare standards for all pork raised and sold in California, as a violation of the Dormant Commerce Clause (DCC).[4] While the Court’s ruling is pending, scholars and reporters contend that the impact of this decision could ripple far beyond animal welfare law, begetting significant consequences on states’ abilities to regulate everything from climate change to labor and reproductive rights.[5]

I. The Dispute

In November 2018, California voters passed the Prevention of Cruelty to Farm Animals Act, commonly known as Proposition 12, by an over sixty percent majority.[6] The law amended Section 25990 of California’s Health and Safety Code and prohibited businesses from selling pork in the state if the pig or its offspring was confined inhumanely.[7] Among various other animal welfare provisions, Proposition 12 targets the use of “gestation crates,” a common enclosure method of confining breeding pigs in “metal enclosures so small the pigs can’t turn around for virtually their entire lives.”[8]

A year after the law took effect, the National Pork Producers Council (the Council) filed a complaint against California state officials (defendants) in the District Court for the Southern District of California to challenge the law.[9] The Council sought a declaration that Proposition 12 violated the DCC because almost all domestic pork production (i.e., where the targeted confinement practices occur) takes place outside of California and, therefore, the law could drastically impact the national pork industry.[10] The district court granted the defendants’ motion to dismiss, holding that the Council did not sufficiently allege that Proposition 12 “impermissibly control[led] extraterritorial conduct” or “impose[d] a substantial burden on interstate commerce.”[11] The Council appealed to the Court of Appeals for the Ninth Circuit, which affirmed the lower court’s decision in favor of the defendants.[12]

II. The Ninth Circuit’s Decision

In a de novo review, the Ninth Circuit considered whether the district court abused its discretion in dismissing the complaint. The Court of Appeals reviewed the two central arguments the Council raised in their complaint: First, that Proposition 12 violated the DCC through “impermissible extraterritorial effect[s]” and second, that California’s “excessive burdens” on interstate commerce outweighed California’s local interests in the law under the balancing test established in Pike v. Bruce Church, Inc.[13] This balancing test, which the Supreme Court has not specified a methodology for, requires courts to compare the “in-state benefits and out-of-state burdens” of a law’s impacts on interstate commerce.[14]

First, the Ninth Circuit rejected the Council’s argument that Proposition 12 had impermissible extraterritorial effects.[15] Invoking the Supreme Court’s interpretation of the extraterritoriality principle, which narrowly prohibits state “price control or price affirmation statutes” or those that regulate commerce “wholly outside” of the state’s borders, the Ninth Circuit distinguished Proposition 12’s effects from those the Supreme Court formerly deemed “impermissible.”[16] The court emphasized that the extraterritoriality principle has been applied only to those laws that seek to “regulate transactions wholly outside” of the enacting state, which they determined Proposition 12 did not.[17] Similarly, the Ninth Circuit rejected the Council’s argument that California lacked “any legitimate local interests” in the law.[18] Rather, the court held that the Council failed to establish any “significant burden” on interstate commerce, holding that an increase in compliance costs for certain out-of-state market participants alone failed to outweigh local interests in consumer protection and animal welfare under Pike.[19]

Accordingly, the Ninth Circuit affirmed the district court’s dismissal of the complaint because the Council failed to sufficiently plead a violation of the DCC.[20] The Council appealed again, and the Supreme Court granted certiorari on March 28, 2022.[21]

III. Oral Argument Before the Supreme Court

During oral argument, the Council and the state defendants received vigorous questioning from all nine Justices.[22] Arguably the most compelling issue raised before the Court, and one absent from the Ninth Circuit’s opinion, revolved around the permissibility of state commerce regulations based on morality.[23] During oral argument, the Council urged that Proposition 12 represents California’s attempt to impose its moral views on animal welfare on the rest of the nation, subsequently increasing consumer costs without reasonable justification in science or public health.[24] In effect, the Council presented the Supreme Court with a new per se rule derived from Pike, essentially asking the Court to bar the consideration of a state’s “moral” interests against the law’s burdens on interstate commerce.[25] Alternatively, the defendants argued that adoption of such a rule would prevent states from maintaining “core feature[s] of state sovereign authority,” such as regulating intrastate commerce and passing legislation based on legitimate, public welfare interests.[26]

While it remains unclear exactly how the Supreme Court will rule in this case, both the liberal and conservative justices expressed apprehension about altering the Pike test.[27] Justice Kagan emphasized that “a lot of policy disputes can be incorporated into laws” like Proposition 12, suggesting that a decision for the Council could welcome challenges to a multitude of other state laws.[28] Justice Barrett also expressed concern about the effects of adopting this rule, asking the plaintiffs: “How many laws would fall?”[29] She also raised concerns about how courts would be able to effectively distill a state’s “moral interests” from legitimate interests in public health and safety.[30]  

IV. “How Many Laws Would Fall?”

The Supreme Court’s decision in National Pork Producers Council could change the way states regulate much more than farming practices.[31] The implications of a decision for either side are perplexing.[32] On the one hand, a decision favoring the Council and adopting this per se Pike rule could lead to courts invalidating many state laws with otherwise permissible extraterritorial impacts on the basis that local interests are too “moral.”[33] Some scholars argue that state policies on clean energy, minimum wages, and even reproductive healthcare could be challenged and deemed unconstitutional under this new rule if a reviewing court found the justification to be based too broadly on a state’s “moral interests.”[34]

On the other hand, entirely rejecting the Council’s challenge could weaken the applicability of the DCC and initiate a flood of new state laws based on “morality.”[35] Legal scholars point out that even the Biden administration “weighed in on behalf of the pork industry” in this case, joining reporters on both sides of the political spectrum who fear the state laws that could be passed on the basis of “morality” if this decision serves to rubberstamp Proposition 12.[36] “[W]eakening the [DCC], even a little” in this decision could open the door to states “passing facially ridiculous laws in a race to see who can be the first to ban products produced by organized labor,” in addition to a plethora of other discriminatory regulations that would not otherwise survive the Pike balancing test.[37]

V. Conclusion

No matter how the Court rules in National Pork Producers Council v. Ross, state regulation on issues much more salient than pork confinement practices could change as a result. In the legal landscape following West Virginia v. EPA,[38] a 2022 Supreme Court decision that California Governor Gavin Newsom described as a “kneecapping” of federal regulatory powers, the stakes for this decision aimed at state regulatory powers could not be higher.[39] The Court is expected to issue a decision in National Pork Producers Council this summer.[40]

*James Duffy is a second-year day student at the University of Baltimore, where he serves as a Staff Editor for the University of Baltimore Law Review, the Vice President of the University of Baltimore’s Environmental Law Society, and a Distinguished Scholar in the Royal Graham Shannonhouse III Honor Society. During his 1L summer, he served as a Law Clerk for the Maryland Office of the Attorney General for the Department of Natural Resources. He is currently a Law Clerk in the United States Environmental Protection Agency’s Office of Enforcement and Compliance Assurance. He looks forward to continuing this internship and his work as a Naturalist with Baltimore County’s Department of Recreation and Parks through his 2L summer.

Photo credit: Wikimedia Commons user kallerna (licensed under the Creative Commons Attribution-Share Alike 4.0 International license).

[1] National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021), cert. granted, 142 S. Ct. 1413 (Mar. 28, 2022) (No. 21-468).

[2] National Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021).

[3] Id.

[4] Id.

[5] See Ian Millhiser, The Surprisingly High Stakes in a Supreme Court Case About Bacon, Vox (Oct. 9, 2022) https://www.vox.com/policy-and-politics/2022/10/9/23392575/supreme-court-national-pork-producers-ross-bacon-dormant-commerce-clause; Elie Mystal, How a Supreme Court Case About Pigs Could Further Undermine . . . Abortion Rights, Nation (October 14, 2022) https://www.thenation.com/article/society/supreme-court-pork-case-california/; Niina H. Farah, What a Supreme Court Case on Pigs Means for Renewable Energy, EnergyWire (Oct. 7, 2022) https://www.eenews.net/articles/what-a-supreme-court-case-on-pigs-means-for-renewable-energy/

[6] Proposition 12 sought “to prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers, and increase the risk of foodborne illness and associated negative fiscal impacts on the State of California.” Cal. Proposition 12, § 2 (2018). See also Robert Barnes, Supreme Court Weighs Far-Reaching Effects of California Pork Restrictions, Wash. Post (Oct. 11, 2022) https://www.washingtonpost.com/politics/2022/10/11/supreme-court-california-pork-law/.

[7] Cal. Health & Safety § 25990(b)(2) (West 2022).

[8] Kenny Torrella, The Fight Over Cage-Free Eggs and Bacon in California, Explained, Vox (Aug. 10, 2021), https://www.vox.com/future-perfect/22576044/prop-12-california-eggs-pork-bacon-veal-animal-welfare-law-gestation-crates-battery-cages.

[9] National Pork Producers Council v. Ross, 6 F.4th 1021, 1025 (9th Cir. 2021).

[10] Id. at 1025, 1028.

[11] Id. at 1026.

[12] Id.

[13] Id. at 1026, 1028, 1030 (discussing Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).

[14] Id. at 1032.

[15] Id.

[16] Id. at 1026–28 (quoting Pharm. Rsch. & Mfrs. of Am. v. Walsh, 583 U.S. 644, 669 (2003)).

[17] Id. at 1031.

[18] Id. at 1025–26.

[19] The Council argued that compliance with Proposition 12 would result in a national “9.2 percent increase in production cost” of pork. Id. at 1033. 

[20] Id. at 1033–34.

[21] National Pork Producers Council v. Ross, 6 F.4th 1021 (9th Cir. 2021), cert. granted, 142 S. Ct. 1413 (Mar. 28, 2022) (No. 21-468).

[22] See Barnes, supra note 5.

[23] Transcript of Oral Argument at 20, National Pork Producers Council v. Ross, 142 S. Ct. 1413 (2022) (No. 21-468).

[24] Id. at 22–24.

[25] Id. at 31.

[26] Id. at 116–17.

[27] Id. at 30–31; 43–46.

[28] Id. at 95.

[29] Id. at 43.

[30] Id. at 43, 95–99.

[31] See Millhiser and Mystal, supra note 4.

[32] Id.

[33] Id.

[34] See supra note 4.

[35] See Mystal, supra note 4.

[36] Id.

[37] Id.

[38] West Virginia v. EPA, 142 S. Ct. 2587 (2022).

[39] Howard Goller, Reactions to U.S. Supreme Court Ruling on Carbon Emissions, Reuters (June 30, 2022, 2:06 PM) https://www.reuters.com/legal/government/reactions-us-supreme-court-ruling-carbon-emissions-2022-06-30/.

[40] Matt Regusci, Will California and the Supreme Court Cripple the Pork Industry?, Food Safety Tech (Jan. 8, 2023), https://foodsafetytech.com/column/will-california-and-the-supreme-court-cripple-the-pork-industry/.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: