In November 2018, California voters passed a ballot initiative known as Proposition 12 (the Prevention of Cruelty to Farm Animals Act), which is covered on our blog.  The Act builds on Proposition 2 from 2008, a measure that banned keeping hens, calves, and pigs in cramped cages but lacked specific size requirements and did not apply to out-of-state farmers.  Proposition 12 outlines specific size requirements and applies to out-of-state farmers that sell eggs, veal and pork in California.  As discussed here, two lawsuits by national agricultural groups allege that Proposition 12’s sales ban violates the Constitution’s dormant commerce clause by placing an undue burden on out-of-state veal and pork producers.  On March 28, 2022, the U.S. Supreme Court granted a Writ of Certiorari petition submitted by the National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) in National Pork Producers Council v. Karen Ross. 

In a 5-4 decision on May 11, 2023, the Supreme Court upheld Proposition 12, finding the law is not an unconstitutional violation of the Court’s dormant Commerce Clause precedents.  Under the dormant Commerce Clause theory, the Commerce Clause of the U.S. Constitution not only vests Congress with the power to regulate interstate trade, but also forbids state economic regulations that purposefully discriminate against out-of-state economic interests.  While not disagreeing that the law may impose substantial new costs on out-of-state pork producers who wish to sell their products in California, the Court rejected the petitioners’ contention that the Court’s dormant Commerce Clause cases suggest an “almost per se” rule forbidding enforcement of state laws that have the “practical effect of controlling commerce outside the State,” even when those laws do not purposely discriminate against out-of-state interests.  The Court also rejected the petitioners’ alternative argument that the dormant Commerce Clause prevents a State from regulating the sale of an ordinary consumer good within its own borders on nondiscriminatory terms if the law’s burdens are “clearly excessive in relation to the putative local benefits.” 

California’s humane pork law was upheld despite the Biden administration’s concerns that the decision would substantially disrupt the nation’s pork market.