Proposition 12 Update from the National Pork Industry Forum

No matter which room or which conversation you were in during the National Pork Industry Forum, almost every conversation touched on Proposition 12 at some point.

“It’s frustrating for us as farmers, who for a number of years have been doing the right things, using the right production practices with the advice of our veterinarians and consultants, to experience something like Prop 12 where a state is telling us, ‘No, you are not doing it right.’ And then, not having that claim based on science, that’s frustrating,” says Lori Stevermer, a Minnesota pig farmer and National Pork Producers Council (NPPC) vice president. “For a lot of farmers, those excess regulations will put them out of business. It’s further consolidation of the industry, and that’s concerning.”

When more people were living in rural areas, that resulted in more neighbors who understood what we pig farmers were doing, she adds. 

“As people get further removed from their food source, they don't understand agricultural production practices. I think the worst part is they try to inflict regulations and rules on us without understanding what we do,” Stevermer says.

NPPC has waged a legal battle against the ballot initiative since it was approved in November 2018, arguing at the U.S. district and appellate court levels that Prop 12 violates the Constitution’s Commerce Clause, which grants Congress the power to regulate trade among the states and limits the ability of states to regulate commerce outside their borders. The high court listened to oral arguments in October 2022 on the case on appeal from the U.S. Court of Appeals for the Ninth Circuit, which in July 2021 upheld a lower court ruling against the NPPC-AFBF lawsuit. The appeals court found that despite the organizations plausibly alleging that Prop 12 “will have dramatic upstream effects and require pervasive changes to the pork industry nationwide,” Ninth Circuit precedent didn’t allow the case to continue. That precedent, however, runs counter to numerous Supreme Court decisions and is in conflict with nearly every other federal circuit court, NPPC says.

“We took that up to the Supreme Court because we believe we can bring that claim. And not only can we bring the claim, but there is going to be significant harm to the pork industry, to producers, to interstate markets as a result of California's Proposition 12 …which is unconstitutional,” NPPC’s Chief Legal Strategist Michael Formica explains.

As the pork industry awaits a decision from the U.S. Supreme Court, Formica says while he doesn’t know what the Supreme Court will do, there are three estimated scenarios of what could happen. 

“The court could come out and clearly say we lose. We don't think that's going to happen and if they were to do that, it would have nothing to do with Prop 12,” he says. “It would have to do with the Dormant Commerce Clause and whether or not you could bring a claim ever. We got a decision from the Ninth Circuit that said the Dormant Commerce Clause essentially doesn't exist. So, is the Supreme Court going to write the Dormant Commerce Clause out of existence? I don't think that's going to happen."

The second scenario could involve the Supreme Court saying NPPC and the American Farm Bureau Federation (AFBF) win completely because Prop 12 is unconstitutional. But Formica says that’s unlikely as well because of the nature of the case through the court procedures. 

“The most likely scenario is that they're going to remand the case and say NPPC and Farm Bureau have made a valid claim here. This would mean the Dormant Commerce Clause would apply here and we’d get a chance to go to court and show the harm that they're predicting in the pork industry is likely going to happen,” Formica says. “Then, we’d get to go to court and litigate that.”

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