The U.S. Supreme Court is again considering a challenge to California’s Proposition 12, the state law that bans the sale of pork from animals not raised under California’s arbitrary welfare standards. In the latest petition, Iowa Pork Producers Association (IPPA) v. Bonta, the petition claims that Proposition 12 violates the dormant commerce clause by discriminating against out-of-state pork producers, who they say had less “lead time” to comply than California farmers subject to an earlier law, Proposition 2.
The case was relisted or marked “Distributed for Conference” on May 15 and again on May 22. When a case is relisted, the justices do not grant or deny review, but instead will reconsider the case at their next conference, according to an article on SCOTUS Blog.
Discrimination Claims
SCOTUS Blog says it is almost impossible to know exactly what is happening when a particular case is relisted, but there are a few possibilities from one justice trying to pick up a fourth vote to grant review to one or more justices wanting to look more closely at the case. It could also be because a justice is writing an opinion about the court’s decision to deny review or the court could be writing an opinion to summarily reverse (that is, rule in favor of the petitioning party without briefing or oral argument on the merits).
This case filed by IPPA claims discrimination because California producers could get ready for Prop 12 longer than producers in other states like Iowa.
In the reply filed by IPPA on April 25, footnote 3 details an additional discrimination that under the Prop 12 certification process, farms have to be audited. California producers get free audits from the California Department of Food and Agriculture (CDFA) while producers in other states must pay a third-party auditor.
The footnote reads: “CDFA offers auditing services to obtain the mandated certification for California farmers, while forcing out-of-state farmers to retain and pay private certifiers. Notably, CDFA only offers the audit and certification services to in-state farmers and CDFA is the only approved governmental entity who is allowed to provide certification services.”
Read the CDFA guidance for pork producers here.
What Happens Now?
“If the Supreme Court does rehear it, we’ve got a history here saying where the Farm Bureau and the National Pork Producers Council lost their prior Supreme Court challenge,” Jim Wiesemeyer pointed out to AgriTalk host Chip Flory on May 23. “Remember, Justice Kavanaugh offered some suggestions. So maybe if the Supreme Court does rehear it, they’ll listen this time to Kavanaugh’s effective roadmap to how to be successful on this.”
However, it’s a waiting game to find out if SCOTUS will hear the case or not.
“We should know that pretty soon,” Wiesemeyer says. “I hope it does happen, because I think the ag industry did not adequately prepare their case the first time. Now, they’ve got an effective roadmap to use. I just hope the new challenge is accepted.”
Your Next Read: Pork Producers Aren’t Giving Up on a Prop 12 Fix
