Marketing Implications of California’s Proposition 12
As we have previously blogged, the U.S. Supreme Court upheld California’s Proposition 12 (Prop 12) on May 11, 2023, which bans the sale of pork in California unless breeding pigs (sows) are allowed at least 24 sq. ft. of space and the ability to stand up and turn around in their pens. The decision has left the pork industry with many questions regarding implementation, including how to market and advertise pork products as Prop 12 compliant.
Prop 12 does not contain any explicit language that addresses Prop 12 disclaimers to be marketed to consumers. The only explicit language discussed is in section 1322.4(a), which states that shipping documents shall include the statement “Pork CA Prop 12 Compliant,” to be affixed to bulk shipping containers sent to retailers. California’s Animal Health and Food Safety Services Division (AHFSS) has not promulgated any regulations that demonstrate what kinds of advertising phrases would be acceptable. The Final Statement of Reasons also does not speak on advertising language.
While federal agencies are not subject to Prop 12 requirements, the U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS) will review Prop 12 compliance/exemption claims as voluntary labeling claims. Through AskFSIS, FSIS stated that it considers Prop 12 claims to be special claims that require FSIS label approval before they can be used on labels in commerce (9 CFR § 412.1). FSIS will not approve labels with a statement such as “California Prop 12 Complaint” without further explanation on the label. Information related to animal raising conditions may be a claim that FSIS could approve, provided the label explains the meaning of the claim and adequate supporting documentation is submitted with the label approval. Further explanation on the label is also needed for Prop 12 exemption claims.