By David Jerome
Correspondent

New rules that took effect Jan. 1 mandate that pigs (and other animals raised for meat sold in California) be raised in cages large enough for them to turn around in.

2018’s Prop 12 passed with 2-1 approval by voters, even though farm animals were not allowed to vote. Press coverage has produced headlines such as “People are panicking about a potential pork crisis,” and industry leaders have warned of a bacon ban leading to the end of bacon, the “Aporkalypse.”

Provisions of the law guaranteeing better conditions for chickens and veal calves have already been phased in, and now pork sold in the state must also comply.

California consumes 15% of the nation’s pork, producing only about a fifth of that.

A lawsuit, filed by National Pork Producers Council and American Farm Bureau Federation with a coalition of California restauranteurs and grocers, aims to block the law. The suit was denied by state courts, but the plaintiffs are taking it to the Supreme Court, and if their petition is granted, it will add one more dramatic and historic controversy to the high court’s controversy-laden 2022 docket.

Briefs from the respondents have poured in. The defendants are headed by California’s Karen Ross, secretary of the California Department of Food and Agriculture (CDFA); Tomas Aragon, Department of Health director; and Attorney General Rob Benta. The state’s response is supported by briefs from the Humane Society of the United States of America and other animal advocacy groups. The plaintiffs are supported by briefs from “friends of the court” including the Canadian Pork Council, the Cato Institute, Iowa Pork Producers, and Indiana and 19 other states.

The arguments against the constitutionality of the law hinge on “extraterritoriality” and the “dormant” section of the commerce clause. The former is the principal that one state can’t mandate behavior in another. The latter holds that Congress, even when asleep, has the sole power to regulate interstate commerce.

The Cato Institute brief raises the specter of producers in other states being required to give California inspectors access to their facilities. Ross’ response points out that the plaintiffs admit that the law includes no such provision. Rather, this type of inspection is part of “proposed regulations” to support the law, “tentative implementation,” and if CDFA attempts this, plaintiffs may challenge it. The suit contests only Prop 12, not suggested regulations attendant to it. The law as written requires that producers provide written proof of the living conditions of their livestock.

Ross’ response points out that, “The corporate parent of Burger King, for example, recently announced that it is ‘committed to eliminating the use of gestation crates for housing pregnant sows’ in Burger King’s global supply chain, and will achieve compliance ‘in the US … by 2022.’ McDonald’s, Kmart, Safeway and other large retailers have made similar commitments. Further, businesses including McDonald’s, Burger King and Safeway—have recently demanded that producers devise similar specialized supply chains. And larger suppliers like Hormel and Tyson have announced that they will be compliant by January 1.”

Also from Ross’ response, “As petitioner National Pork Producers Council explained in a 2012 statement and reiterated in the complaint here, “’[p]ork industry customers have expressed a desire to see changes in how pigs are raised’ — a desire that, by 2019, had already led 28% of the industry to convert from individual gestation stalls to group housing.”

The “meat” of the complaint is in the dollar costs of compliance. Industry groups have produced studies to back them up. One, by North Carolina State University economist Barry Goodwin, estimates increased costs of 15% per animal. Another by the Hatamiya Group predicted price jumps of 60% for consumers. A study from UC Davis argues that price increases would be closer to 8%.

Local restauranteurs confirm that prices have taken a wild ride; Frank Ferro of Ferro’s in Idyllwild said that the high-quality beef he orders has risen 50% over the last year.

Jane Oliver of Sunflower Bakery reported that bacon has risen 50% since she took over the business last April. The redoubtable Nam Kim of Mile High Café said prices for meat have doubled or even tripled during the pandemic, and that volatility makes planning difficult. During holidays the prices shoot up, coming down during off-peak periods “but only a little.”

While prices of meat have risen precipitously during the last two years, they seem to have been driven by COVID-related supply chain issues. According to the Select Committee on the Coronavirus Crisis “[a]t the onset of the pandemic, America’s largest meat companies failed to put adequate measures in place to mitigate the spread of the coronavirus in their facilities, leading to some of the nation’s first and largest outbreaks, which resulted in high rates of avoidable illness and death among plant workers, their families, and communities. At the same time, the companies achieved record profitsm…” Quoting further from the report, “In flagging touchless mask distribution as a ‘problematic’ recommendation, Smithfield’s CEO speculated this measure would consume three hours of time otherwise spent working each day, calculating: ‘3800 employees x 30 seconds each = 1900 minutes = 31 hours day = 3 hours/[illegible].’”

Investigate Midwest counted 86,000 COVID cases in the industry and 423 deaths. Prop 12 has no provisions protecting the safety of workers processing the animals.

When packing plants lost workers, the invisible hand of the market decried that farmers euthanize millions of animals and send them to landfills. Herds were culled worldwide. Now that herds are being rebuilt, demand for animals has risen. China, in particular, has been buying American pork. Furthermore, the supply chain separates into retail and wholesale; when restaurant demands fell, those supplies could not be repurposed to grocers.