Prop 12 Response: Iowa Lawyer Says ‘Don’t Make Any Rash Decisions’
From a legal perspective, attorney Eldon McAfee of Des Moines, Iowa, says the Proposition 12 ruling came as a bit of a surprise.
“Very few cases get to the U.S. Supreme Court,” McAfee says. “When the court took this case, the percentages will tell you most cases they take result in overturning the case below. The hope was they took it to overturn it.”
In fact, McAfee says, in the last 15 years, the Supreme Court has reversed 80% of the decisions from the 9th Circuit Court of Appeals.
But McAfee, who represents the Iowa Pork Producers Association, the Iowa Cattlemen’s Association, the North Central Poultry Association and other livestock producers, said as a former farmer, he too struggles with the idea that California can adopt a law that requires a farmer in Iowa to change or at least follow what California voters say about raising pork.
“It's not a health issue or anything like that,” McAfee says. “It's solely based on what California voters decided in an initiative in 2018 — that gestation sows should be housed in a certain way. It doesn't even directly affect the finishing pigs. I think the real gist from a producer perspective is, ‘How can they do that?’”
What Does the Law Say?
From a legal perspective, he says the Pike balancing test was a big part of the case. This is based on a Supreme Court decision from 1970 where it basically said in Dormant Commerce Clause cases, you have to balance the burden against the benefits.
“That was a big part of the oral arguments,” McAfee says. “But this court didn't let it get there. This court stopped them at first base and said, ‘Your lawsuit as written should be dismissed because you don't make the case for protection under the Dormant Commerce Clause.’”
Regulations are final and ready to go, McAfee says. However, as a result of a state court decision in California brought forward by the Food Equity Alliance, a statewide coalition of diverse consumer and business groups that rely on robust national supply chains of pork to provide nutrition to Californians, there is enforcement against the sale of meat in California being required to be Prop 12 compliant until July 1, 2023.
The coalition consists of California grocery stores and restaurants, business organizations, food processors and food equity supporters, including the California Hispanic Chamber of Commerce, the Grocer Association, the Retailers Association and Kruse Meats.
In addition, there is one more case pending that was filed by the Iowa Pork Producers Association in California and is now on appeal to the 9th Circuit.
“It was put on hold waiting on a decision in this case. In that case, the arguments are criminal due process because there are criminal sanctions in this law,” McAfee says. “The lawsuit also includes arguments under the Dormant Commerce Clause, and we'll see how this decision affects those. We'll know fairly soon whether the court in that case is going to let it go forward.”
How Will the Pork Industry Respond to Prop 12?
Never underestimate the ability of pork producers to adapt, McAfee says. Some of them will, and as the Supreme Court noted, some already have.
But it’s hard to deny that when producers face adversity like Prop 12, many experts agree some pig farmers will say, ‘Okay, I'm of an age, I'm not going to spend that kind of money to go to group housing, etc., so I'm done.’
Meanwhile others believe some of the smaller producers will do this and follow the marketplace.
“I like to think the industry will do its best to adapt,” McAfee says. “Do the producers want to do this? I'd say the majority do not. Many see it as an unnecessary expense, and these are tough economic times right now for pork producers.”
He hopes the marketplace will adequately compensate producers in some way for the added expense they will incur.
“My advice to producers is stay in touch with your processor who you're selling hogs to and be talking with them if you're under contract or if you're selling on the open market. Don't make any rash decisions right now,” he says.
Read More from Farm Journal's PORK:
Prop 12 Ruling: A Major Blow to Farmers and Consumers Who Will Pay the Price
Prop 12 Reactions: From Hogwash to Delight
BREAKING: Supreme Court Backs California Prop 12
Ripple Effect of Prop 12 Will Be Nothing But Bad News, Rep. Johnson Says
