Supreme Court OKs California’s Ban on Importing Cruelly Raised Pork Products

pork chop at factory Photo Source: Adobe Stock Image

Voters enacted a ballot proposition called Californians Against Cruelty, Cages and Fraud with 63% of the vote in 2018. It requires all “veal calves, breeding pigs and egg-laying hens” to be housed in cage-free environments with adequate floor space that allows them to “lie down, stand up, fully extend (their) limbs, and turn around freely.” The state also banned the sale of out-of-state animals that were raised under cruel conditions that did not meet the new California law.

Not surprisingly, the National Pork Producers Council (NPPC) and the American Farm Bureau Federation challenged the laws because they believed the citizen-initiated measure violates the Interstate Commerce Clause, which gives the U.S. Congress the power to “regulate commerce…among the states.” They argued that the California laws violated the U.S. Constitution and would ultimately serve to “regulate out-of-state production.” They also claimed that current practices do a better job of protecting animal welfare and that forcing farmers to make changes would be expensive, with higher costs being passed on to California consumers.

In 2020, Judge Thomas Whelan, a federal judge for the Southern District of California, dismissed the case because he believed the law did not require uniform animal-treatment practices in all states, did not target interstate commerce, and treated both in-state and out-of-state animals equally. When the farm organizations appealed to the Ninth Circuit, they lost. They appealed to the United States Supreme Court in National Pork Producers Council et. al. v. Ross, Agriculture Secretary of California, and were granted certiorari. They lost again on May 11 by a vote of 5-4, with most justices writing separate opinions that expressed various reasons for their votes.

Justice Gorsuch announced the majority opinion of the court, allowing other justices to agree or disagree with certain parts. He said that the pork producers who challenged the law asked the Supreme Court to “fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

The Justice then gave a historical perspective to the ruling, pointing out that many states have long protected animal rights. For example, Massachusetts Bay Colony prohibited cruelty to animals back in 1641.

He then dismissed NPPC’s interpretation of constitutional law that he said has “come to be called the “dormant Commerce Clause.” This argument holds that Congress not only has the “power to regulate interstate trade,” but to also “forbid the enforcement of certain state (economic regulations) even when Congress has failed to legislate on the subject.” This was not persuasive because California’s law lacked “purposeful discrimination against out-of-state economic interests.” He wrote, “California’s law does not seek to advantage in-state firms or disadvantage out-of-state rivals.”

Arguments that require the Court to determine whether the California law would impose an “impermissible burden on interstate commerce,” also failed. Because many out-of-state pork producers have already made changes in the way they house their animals, he said, “A substantial harm to interstate commerce remains nothing more than a speculative possibility.” In addition, Gorsuch wrote that judges are not equipped to change the scope of the Commerce Clause. He suggested that plaintiffs are “free to petition Congress to intervene.”

Gorsuch then discussed the concurring and dissenting opinions of the other justices. He began by contradicting Chief Justice Roberts’ stand that “would permit judges to enjoin the enforcement of any state law that would restrict the sale of consumer goods if it “threatens an excessive harm on the interstate market.” Using the ban on the sale of horsemeat as an example, he said that “all it would take is one complaint from an unhappy out-of-state producer and –presto—the Constitution would protect the sale of horsemeat. Just find a judge anywhere in the country who considers the burden to producers “excessive.” Justices Alito, Kavanaugh and Jackson also joined Roberts’ separate opinion.

Associate Justice Brett M. Kavanaugh’s partial dissent was also criticized by Gorsuch for its contention that “California’s market is so lucrative that almost an in-state measure will influence how out-of-state profit maximizing firms choose to operate.” Gorsuch said that this argument would mean that States with smaller markets would be entitled to greater authority to regulate than states with larger markets.

Associate Justices Elena Kagan and Sonia Sotomayor sought to clarify what they called “the fractured nature” of Gorsuch’s opinion about what would constitute a substantial burden on interstate commerce. They wrote that precedent clearly holds that “Where statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Associate Justice Amy Coney Barrett disagreed in part because she found that California’s law did impose a substantial burden on interstate commerce.

The Supreme Court’s opinion in National Pork Producers Council et. al. v. Ross is controversial not only for what it said but also for the effects it could have on commerce in the future. Columnist George Will put it this way: “If you choose, as swarms of Californians are doing, to live somewhere other than California, the state will still try to govern you. Not content with bossing around its residents, California will try to force Americans elsewhere to conform to its moral and policy preferences. And other states with large shares of markets for particular products might act similarly because of a Supreme Court decision…that encourages coercive evangelism.”

Maureen Rubin
Maureen Rubin
Maureen is a graduate of Catholic University Law School and holds a Master's degree from USC. She is a licensed attorney in California and was an Emeritus Professor of Journalism at California State University, Northridge specializing in media law and writing. With a background in both the Carter White House and the U.S. Congress, Maureen enriches her scholarly work with an extensive foundation of real-world knowledge.
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