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Court ruling could catalyze new wave of U.S. animal welfare laws The precedent could leave pork trade to navigate an eventual legislative patchwork. By David Favre Published: June 5, 2023 Manitobacooperator.ca

Should California be able to require higher welfare standards for farm animals raised outside its borders if products from those animals are to be sold in California?

On May 11, the U.S. Supreme Court decided the answer is yes.

The result was determined by a 5-4 vote in the court case, National Pork Producers Council versus Ross.

Pork producers sued California over a law that state’s voters had adopted in 2018. A ballot vote at the time had returned over 63 per cent approval of the law, which set new conditions for raising hogs, veal calves and egg-laying chickens whose meat or eggs are sold in California.

As a specialist in animal law, I expect this will result in a patchwork of laws that are likely to make U.S. meat producers very uncomfortable. Ultimately, it could push Congress to set federal standards.

California produces virtually no pork but represents about 15 per cent of the U.S. pork market.

At most commercial hog farms in the U.S., pregnant sows have historically been kept in gestation crates, which measure about two feet by seven feet — enough room for animals to sit, stand and lie down, but not enough to turn around. California’s law requires that each sow must have at least 24 square feet of floor space — nearly double what most now get.

The National Pork Producers Council argued that this requirement imposed heavy compliance costs on farms and restricted interstate commerce. The U.S. Constitution’s commerce clause delegates the regulation of interstate commerce to the federal government.

In a series of cases over the past 50 years, the Supreme Court has made clear that it will strike down any state law that seeks to control commerce in another state or give preference to in-state commerce.

Congress has remained mute on standards for handling farm animals, which are not covered under the 1966 Animal Welfare Act. Consequently, each state regulates this issue within its borders.

Nine states in addition to California have adopted laws requiring pork producers to phase out gestation crates. The law in Massachusetts, like California’s, would also apply to retail sales of pork raised elsewhere, but its enforcement has been on hold pending the Supreme Court’s ruling in the California case.

The California law says that if producers want to sell pork in California, they must raise pigs under conditions that comply with the state’s regulations. Farmers do not have to meet these standards unless they want to sell in California. It applies equally to both in-state and out-of-state producers, and so does not directly discriminate between states in a way that would constitute a clear commerce-clause violation.

However, as the Supreme Court noted, major producers, including Hormel and Tyson, have said they will be able to comply with the California standard. Niman Ranch, a network of family farmers who raise livestock humanely and sustainably, filed an amicus brief with the Supreme Court supporting California.

Although rejecting the pork industry’s position, justices in the majority disagreed as to why the California law should be upheld. Some held that pork producers had not proved that the law would substantially interfere with interstate commerce. Others argued that, regardless of the degree of interference, it was inappropriate to ask courts to balance compliance costs for the industry against state voters’ moral concerns about animal welfare.

“While the Constitution addresses many weighty issues,” Justice Neil Gorsuch wrote for the majority, “the type of pork chops California merchants may sell is not on that list.”

Similarly, dissenting justices differed as to why the California law posed a constitutional problem. Some asserted that the substantial interference requirement had been met. Only one held that the California law should be void because the animal welfare improvements were not substantial enough to overcome the increased cost.

With the precedent of the California case, states with the most progressive animal welfare policies — primarily west coast and northeast states — will be able to effectively set national animal welfare standards. Conceivably, California might also be able to require basic conditions for human labour, such as minimum wage standards, associated with products sold in California.

I expect that within five years, Congress will enact national legislation on farm animal welfare issues that will pre-empt differing state laws.

It is impossible to predict now whether a new national law would improve animal welfare or adopt existing poor welfare practices — but California’s win represents a major victory for animal welfare lobbyists.

Note: In 2014, the Canadian pork sector agreed to phase out gestation crates by 2024 using updated standards from the National Farm Animal Care Council. A later proposal to extend the deadline to 2029 has been stalled, although several major pork or hog producing companies have already touted their transition to group housing.

David Favre is Professor of Law & The Nancy Heathcote Professor of Property and Animal Law at Michigan State University. This is an update of an article originally published in The Conversation, by Reuters, in October 2022.