The best way to protect animal well-being is to allow farmers to make farm and animal-specific decisions on animal care, says Michael Formica, assistant vice president and general counsel for National Pork Producers Council (NPPC).
However, Proposition 12, California’s 2018 ballot initiative that bans the sale of meat and eggs derived from producers that don’t meet California standards, will remove the ability of farmers to make those farm-specific determinations for the animals in their care and force arbitrary and prescriptive standards that undermine the animals’ well-being. It is set to go into effect on Jan. 1, 2022.
A federal district court had rejected a request by the North American Meat Institute (Meat Institute) for a preliminary injunction against Proposition 12, and a three-judge panel on the U.S. Court of Appeals for the 9th Circuit upheld that decision on Oct. 15. The Meat Institute opposes Proposition 12 because it established meat production standards that apply to producers outside of California.
Although the Meat Institute’s lawsuit was dismissed, the fight for U.S. pork producers is not over. The National Pork Producers Council (NPPC) and the American Farm Bureau Federation (AFBF) jointly filed its opening brief on Sept. 23 to the U.S. Court of Appeals for the Ninth Circuit, asking the court to strike California’s Proposition 12 as invalid. Additionally, three separate amicus briefs were also filed in support of NPPC and AFBF’s case, from the federal government, numerous state AGs and business groups.
“NPPC and AFBF represent hog farmers who are the parties that Proposition 12 directly forces to each invest millions of dollars to construct new farms and develop new operating procedures on an expedited time, while subjecting them to burdensome inspections and loss of privacy rights,” Formica says. 
By regulating businesses outside of its borders, California’s Proposition 12 violates the commerce clause of the U.S. Constitution, Formica says.
“The appeals challenge asks the court to strike Proposition 12 as invalid. It is unconstitutional and seeks to allow a single state without any commercial hog production to regulate how farmers across the country operate, imposing prohibitive costs with no benefits,” he explains.
California has large Asian and Latin communities that use pork as a staple in their cultural diets. With less than 1% of U.S. pork production meeting Proposition 12’s requirements, this would dramatically reduce the supply of pork to California, a populous market that represents approximately 13% to 15% of the U.S. pork market. 
What does this mean for U.S. pork production?
To comply with Proposition 12, U.S. hog farmers need to start making investment decisions now to be ready by the implementation, Formica advises.
Proposition 12 requires that any female pig six months or older kept for breeding purposes be provided at least 24 square feet of floor space and be able to stand up, turn around and stretch their limbs without touching the sides of the enclosure or another animal. He says it provides an exception to this for farrowing but requires sows to be immediately moved back to open pens once the piglets are weaned. During breeding, the proposition only allows confinement of a sow for 6 hours within a 24-hour period and no more than 24 hours in any 30-day period. 
“Any uncooked pork produced from the offspring of a sow that was not kept in compliance with these requirements will be illegal to sell in California.
Ultimately, Proposition 12 will reverse decades of progress on sow care and welfare, set back efficiency and the resource footprint of farms, undermine the overall global competitiveness of the U.S. pork industry and increase food prices for consumers,” he says.
Complying with Proposition 12 will cost individual hog producers millions and will likely result in significant and irrevocable ramifications, he says. According to a University of Minnesota study, the conversion of sow barns to group pens alone would cost between $1.87 billion and $3.24 billion. This comes at a time when pork producers are already facing an uphill battle to profitability due to market disruptions caused by COVID-19 and trade restrictions. 
“NPPC and AFBF are challenging Proposition 12 because a state that doesn’t have any significant commercial hog production is seeking to regulate how farmers across the country operate, imposing onerous regulations, inspection and permitting requirements, and highly prescriptive measures on livestock farmers,” Formica says. “It will force hog farmers that want to sell pork into the populous California market to design new housing systems at a significant cost to them and consumers. It will force pork producers to replace their entire breeding herd.”
If NPPC and AFBF’s legal challenge is not successful and Proposition 12 moves ahead, Formica says many producers will lose access to the California market. Loss of this market will put many hog producers out of business, unable to make the expensive renovations to comply with Proposition 12. Ultimately, he says it will lead to further industry concentration. 
How can the pork industry help?
Stay engaged and support NPPC, Formica says. NPPC is investing tremendous resources into its Proposition 12 legal challenge in order to save this significant market for pork producers. 
In addition, NPPC has been actively engaged in California at the state level, he adds. NPPC expects California to issue proposed regulations implementing Proposition 12 this fall. Once they are proposed, NPPC will issue calls-to-action for producers to weigh in with regulators in California, making their voices heard.
“Compliance with Proposition 12 will cost individual farmers millions of dollars. The ones least able to bear that cost will be small family farms,” Formica says.
California’s Proposition 12 Would Cost U.S. Pork Industry Billions