May 26, 2022

Volume XII, Number 146

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Prop 12 Enforcement Delayed for Some Stakeholders

  • On January 24, Judge James P. Arguelles for the Superior Court in Sacramento County ordered an enforcement delay of a part of California’s Proposition 12. Judge Arguelles ruled that grocers, restaurants, and retailers would not be subject to enforcement of the new restrictions on whole pork meat sales until six months after the state enacts final regulations. The ruling comes in response to a January 21 hearing for a prohibitory writ of mandate and complaint for declaratory and injunctive relief, petitioned by the California Hispanic Chambers of Commerce, Kruse & Son, Inc., California Grocers Association, California Restaurant Association, and the California Retailers Association.

  • As a recap from our 2019 blog post on Prop 12, California voters passed this law as a ballot initiative in the November 2018 election. The new law established the standard for confinement of certain farm animals and bans the sale of eggs, veal, and pork products that do not comply with the new confinement standards. In 2019 and 2020, the California Department of Food and Agriculture (CDFA) solicited input from stakeholders regarding the regulatory framework for Prop 12, with specific focus on production facility registration, certification, verification audits or inspections, border station inspections, and a penalty matrix for violations including an appeal process. In May 2021, CDFA and the California Department of Public Health (CDPH) published proposed regulations, which triggered a 45-day public comment period. The revised proposed regulations were published on December 3, 2021 and had a 15-day comment period. Final regulations are not yet in effect, but some grocery store chains and pork suppliers have issued statements of compliance with the Act while awaiting the final regulations.

  • However, the petitioners in the instant proceeding argued that, without final regulations, they should not be subject to penalties associated with sales of nonconforming whole pork meat. Petitioners asked the court to (1) declare the square-footage requirement unenforceable absent final regulations, (2) delay enforcement of the same requirements until 28 months post-publication of final regulations, and (3) bar the CDFA and CDPH from enforcing the square-footage requirements for 28 months post publication.

  • In the order, Judge Arguelles held that, because the Act required the promulgation of final regulations by September 1, 2019, a delay in enforcement was warranted but disagreed that a 28 month delay was appropriate because “[t]he court must be mindful of the Act’s concern about cruel confinements, and the enforcement delay must not exceed a period that is necessary. Thus, he ordered the court’s writ to remain in effect until 6 months post-publication of the final regulations.

© 2022 Keller and Heckman LLPNational Law Review, Volume XII, Number 26
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About this Author

Keller and Heckman offers global food and drug services to its clients. Our comprehensive and extensive food and drug practice is one of the largest in the world. We promote, protect, and defend products made by the spectrum of industries regulated by the U.S. Food and Drug Administration (FDA), the European Commission and Member States authorities in the European Union (EU) and similar authorities throughout the world. The products we help get to market include foods, pharmaceuticals, medical devices, veterinary products, dietary supplements, and cosmetics. In addition...

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