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On June 16, 2023 (but not released until June 21, 2023) the Superior Court for the County of Sacramento issued an order further modifying certain aspects of the implementation schedule for California Proposition 12.
The order effectively provides an extension of time for the continued sale of non-compliant whole pork meat already in the supply chain when Proposition 12 takes effect. The order does not delay the underlying requirements of Proposition 12.
Under the terms of the order, non compliant whole pork meat can continue to be sold in California provided that:
a. as of July 1, 2023, is in the possession of an “end user” (Cal. Code Regs., tit. 3, § 1322, subd. (o)) or a “pork distributor” (id., subd. (t)) or on the premises of an establishment at which mandatory inspection is provided under the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.) and that holds an establishment number (prefix “M”) granted by the Food Safety Inspection Service of the United States Department of Agriculture (“federally-inspected entity”);
b. is self-certified by the end user, pork distributor, or other federally-inspected entity to have been in their possession or was in the possession of another end user, pork distributor, or other federally-inspected entity as of July 1, 2023; and
c. is ultimately sold, transferred, exported, or donated on or before December 31, 2023.
This change is not a delay of all of Proposition 12. It is only an adjustment related to the sale of non-compliant whole pork meat already in the supply chain. Anything harvested after July 1, to be sold in California will still have to be Proposition 12 compliant.
Timeline & Status
May 31, 2023: California Department of Food and Agriculture (CDFA) Animal Care Program releases guidance: Questions and Answers Related to Pork Sales in the Wake of the 2023 Supreme Court Decision
May 11, 2023: The Supreme Court upheld California Proposition 12.
October 11, 2022: The Supreme Court heard oral arguments.
September 2022: NPPC/AFBF file SCOTUS Reply Brief to Petitioners. The same day, California’s Department of Food and Agriculture announced it finally completed the Proposition 12 implementation rules (over three years after the original statutory deadline).
July 2022: Amicus Briefs filed in support of the NPPC/AFBF case to review California Prop 12. The Biden administration, international trading partners and business groups representing the full scope of the U.S. economy filed amicus briefs in support of the National Pork Producers Council’s case.
June 2022: NPPC/AFBF filed a joint brief arguing Proposition 12 violates the U.S. Constitution’s commerce clause, which restricts states from regulating commerce outside their borders.
March 2022: The U.S. Supreme Court agreed to hear the legal challenge filed by NPPC/AFBF against California Proposition 12. Arguments will take place in the fall of 2022, with a decision expected in early 2023.
January 2022: A state superior court granted a delay in the effective date of Prop. 12 for 180 days after final implementing regulations are issued. California has not issued final regulations, nearly 3 years after the deadline.
December 2018: NPPC and American Farm Bureau Federation (AFBF) filed a legal challenge to Proposition 12, asking the court to strike it as invalid under the Commerce Clause of the U.S. Constitution.
November 2018: California voters passed the Proposition 12 which imposes arbitrary minimum requirements on farmers to provide more space for egg laying hens, breeding sows, and calves raised for veal.
of domestic U.S. pork sales are to California
$1.9 billion to more than $3.2 billion
are the estimated costs for converting sow barns to group pens, according to a University of Minnesota study. Because of the way pork is processed, it would be difficult to separate meat based on various farms’ production practices, impacting the entire supply chain.
is the cost that farmers will need invest and pass onto consumers at a time of record-high inflation. That means a producer owner operating a 4,000 sow farm will need to invest approximately $14 million to be compliant.
California voters in 2018 approved Proposition 12, a ballot measure that prohibits the sale of pork, eggs, and veal not produced according to the state’s arbitrary production standards. These standards were developed without input from hog farmers, veterinarians, animal care, food safety, and pork production experts. California was nearly three years behind developing its regulations to implement Prop 12, resulting in the Sacramento Superior Court issuing an injunction on its enforcement for at least 180 days after final regulations are issued.
California has nearly 40 million residents, representing approximately 15 percent of the U.S. pork market. Proposition 12 will dramatically reduce the pork supply for Californians and raise prices that will disproportionately affect low-income households.
Despite being such a large consumer market for pork, California has essentially no pork production and is dependent on farms located far outside its borders to feed its residents. Proposition 12 was designed to force hog farmers in other states and countries who want to sell pork into the populous California market to retrofit existing barns or design new housing systems.
According to a University of Minnesota study, the conversion of sow barns to group pens would cost between $1.9 billion and more than $3.2 billion. With California’s mandate to also eliminate the use of breeding stalls will also contribute to significant increases of industry costs.
Proposition 12, as written:
- Bans the sale of pork from the offspring of sows kept in pens that do not meet its prescribed dimensions of 24 square feet per sow.
- Prohibits breeding pens that provide a safe postpartum space for sows to recover from their previous litter without the stress of fighting and establishing dominance in the herd. Today’s typical sow farm offers a comfortable 16-18 square feet per sow.
- Applies to any uncooked pork sold in California, whether raised there or outside the state’s borders. It specifically applies to bacon and other cuts of meat that have been cured, preserved, or flavored but not cooked. It does not apply to combination products such as sandwiches, hot dogs, pizzas, or other prepared foods that are comprised of more than pork meat and seasonings. California has also said it will not apply to ground or comminuted pork such as that found in sausage.
As it relates to the use of individual pens, NPPC supports the position taken by the American Veterinary Medical Association and the American Association of Swine Veterinarians, which recognize both individual pens and group housing systems as appropriate for providing for the well-being of sows during pregnancy. In fact, the key factor that most affects animal well-being is husbandry skills – that is, the care given to each animal.
There is no scientific consensus on the best way to house gestating sows because each type of housing system has inherent advantages and disadvantages.
NPPC’s Position on California Proposition 12
Animal welfare and maintaining consumer access to high-quality, affordable pork are top priorities for America’s pig farmers.
NPPC strongly opposes California Proposition 12 because:
- It’s unconstitutional. The ban on the sale of out-of-state pork is a restraint of interstate commerce. Furthermore, California is seeking to impose its regulations on farms located far outside of the state and which have no contact with the state. It is a violation of the U.S. Constitution.
- Imposes arbitrary standards. The law is based on arbitrary and prescriptive standards that lack any scientific, technical, or agricultural basis.
- Threatens animal welfare. Implementing this law will reverse decades of progress in animal welfare and farm biosecurity and undermine the global competitiveness of the U.S. pork industry. It is unjustified and counterproductive to advancing animal health and safety – and jeopardizes sow safety.
- Increases food prices and disrupts supply chains. The cost to implement Prop 12 has been measured to be approximately $3,500/sow, a cost that farmers will need to pass onto to consumers at a time of record-high inflation.
- Threaten producers’ livelihoods. Financial investments and an ever-increasing patchwork of standards continues to create significant challenges for how producers operate and increasingly allows others to dictate how to raise pigs without any voice in the standards being imposed upon them.
- California Department of Food and Agriculture (CDFA): Animal Care Program – Proposition 12
- June 24, 2023: California Department of Food and Agriculture (CDFA) Animal Care Program webinar for “pork producers” – keeping or housing breeding pigs.
- June 21, 2023: Superior Court Order of Modifying California Proposition 12 Implementation
- June 13, 2023: California Department of Food and Agriculture (CDFA) Animal Care Program webinar for “distributors” – selling or distributing covered product to an end-user in California.
- June 6, 2023: California Department of Food and Agriculture (CDFA) Animal Care Program webinar for “end-users” – retailers, restaurants and food processors.
- May 31, 2023: California Department of Food and Agriculture (CDFA) Animal Care Program guidance: Questions and Answers Related to Pork Sales in the Wake of the 2023 Supreme Court Decision
- May 11, 2023: SCOTUS upheld the Ninth Circuit ruling
- October 11, 2022: SCOTUS Oral Arguments – National Pork Producers v. Ross
- September 7, 2022: NPPC/AFBF’s Scotus Reply Brief to Petitioners
- June 21, 2022: Amicus briefs filed in support of NPPC and AFBF
- June 13, 2022: NPPC/AFBF Supreme Court Brief
- Supreme Court Docket
- June 26: The Real Facts About Prop 12 Implementation Modification – Farm Journal’s PORK
- June 26: Prop 12 Implementation Modification Order – California Ag Today
- May 17: The Supreme Court’s California pork ruling invites interstate economic warfare – The Washington Post, George Will
- May 16: Never Underestimate the Resolve of the American Pork Producer – Farm Journal’s PORK
- May 15: NPPC on Prop-12: The ruling was disappointing, but pork will prevail – RFD-TV
- May 12: The Supreme Court’s Pork Chops – The Wall Street Journal, The Editorial Board
- May 12: Prop 12 ruling: What it means and what’s next – National Hog Farmer
- May 12: National Pork Producers Consider Next Steps for Prop 12 – Brownfield Ag News
- May 11: Supreme Court Outrages Republicans With Split Decision Ruling – Newsweek
Press Releases & Op-Eds
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From LAW 360 article by Daniel Kolkey
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