If you are in the business of buying or selling pork-based products, then you have probably heard of California’s Proposition 12.  As it pertains to pork, the law requires that pig confinement systems are large enough to allow the animals to fully lie down, stand up, extend their limbs, and turn around freely.  We previously wrote about the importance and impact of this law, which went into effect starting January 1, 2022.  Recent developments have since put the law on pause and its future into question.

“The Stall”:  Prop 12 Enforcement Stayed By California Trial Court

In late January, a California state court judge issued a “prohibitory writ of mandate” that temporarily stayed public and private enforcement of the law.  Cal. Hispanic Chambers of Commerce et. al. v. Ross et. al., Case No. 34-2021-80003765 (Superior Court of California, County of Sacramento).  The petitioners argued that they and their members should not be exposed to an enforcement action under Prop 12 because the California Department of Food and Agriculture (“CDFA”) and California Department of Public Health (“CDPH”) have not yet issued final regulations describing the record-keeping and audit trail that would be required to “document the identification, source, supplier, transfer of ownership, transportation, storage, segregation, handling, packaging, distribution, and sale of whole pork that was derived from a breeding pig, or immediate offspring of a breeding pig, confined in compliance with” the law.  The court noted that “the regulations that CDFA and CDPH have proposed contain numerous provisions trained on the production of a documentary audit trail, and would require any good faith defense to be based on these documents.”

The good faith defense is a critical component of the law, which shields business owners and operators from enforcement actions if they rely in good faith on “a written certification by the supplier that the … whole pork meat … was not derived from a covered animal who was confined in a cruel manner, or from the immediate offspring of a breeding pig who was confined in a cruel manner.”  Cal. Health & Safety Code § 25993.1.

The court agreed that CDFA and CDPH must promulgate regulations before they or other public and private enforcers can take action against the above list of operators.

Following the court’s issuance of its final ruling, there was some dispute over the scope of the stay, with the State taking the position that only the petitioners themselves could benefit from the injunction, and petitioners arguing that the State could not enforce the law statewide.  The court’s amended final ruling and judgment resolved the question by confirming that the State is prohibited from enforcing Prop 12 statewide until 180 days after final regulations are adopted.

The State of California filed a notice of appeal on February 22, 2022.  The appeal is currently pending in the Third Appellate District, Case No. C095799.  Case information statements were filed on March 24, 2022 and no briefs are yet on file.

On The Chopping Block?

Last week, the United States Supreme Court granted a Writ of Certiorari petition submitted by the National Pork Producers Council (“NPPC”) and the American Farm Bureau Federation (“AFBF”), which makes the future of Prop 12 even more uncertain.  The suit alleges that Proposition 12 violates the Constitution’s dormant commerce clause by placing an undue burden on pork producers nationally.  Critics of the law seek to overturn the Ninth Circuit’s unpublished decision in June 2020 upholding a determination that the law is constitutional.  Proponents of the law hope that this will be the final straw in a contentious debate.  For pork industry members and purchasers of pork products, there is likely to be some confusion regarding the law’s status.

Bottom Line

Industry and retailers impacted by Prop 12 should follow these two court cases closely, as the outcomes seem certain to impact their rights.