When California voters passed Proposition 12, it was all about animal welfare and food safety. In recent days, however, the Los Angeles Times has predicted the state’s consumers are shortly in for skyrocketing pork prices and pork shortages, an era the newspaper predicts will become known as “Bacongate.”
California won the right to impose Prop 12 housing standards on pigs raised in any state if they are sold in the Golden State. Prop 12 requires 24 square feet of room for each gestating sow. California, however, does not produce much pork on its own. An estimated 99.8 percent of the pork California consumes comes from out of state.
Prop 12 passed in 2018 with about two-thirds of the vote. Selling pork in California that is not Prop 12 compliant will be illegal after Jan. 1, 2022. Bacon shortages and prices over $10 per pound are anticipated.
That prospect has the North American Meat Institute looking for a moratorium on Prop 12 enforcement. It’s an action that would likely require action by Gov. Gavin Newsom. And his attention is on the Sept. 14 election to recall him. NAMI requested a 28-month moratorium once final rules are published to give those entities subject to the changes time to comply.
NAMI’s Mark Dopp, chief operating officer, requested the moratorium at an Aug. 27 public hearing before the California Department of Food and Agriculture (CDFA) and the California Department of Public Health.
“Until final rules issue, affected companies are on hold concerning what they must do to comply with Prop 12 to avoid criminal prosecution,” Dopp said. “For that reason, alone equity demands the California Department of Food and Agriculture (CDFA) issue an enforcement moratorium of at least 28 months after the rules are published.”
The CDFA failed to meet Prop 12’s statutory deadline for adopting final rules, Sept. 1, 2019. Draft regulations were released in May 2021 but are not yet final.
Michael Formica, general counsel for the National Pork Producers Council, said the CDFA’s failure to meet the regulatory deadline is a “fatal flaw” that prevents the industry from producing Prop 12 compliant pork.
Formica said as drafted, the rules don’t provide sufficient guidance to pork producers trying to comply.
NAMI unsuccessfully petitioned the Supreme Court, challenging the constitutionality of Prop 12. Twenty states filed Amicus curiae briefs supporting the NAMI petition. A district court and the Ninth Circuit upheld Prop 12 and the Supreme Court refused to hear it. And in partnered action, the Iowa Pork Producers Association and three Iowa pork producers also challenged Prop 12 only to see their lawsuit dismissed on Aug. 23 by an Iowa district court.
The states claimed there are constitutional questions that cried out for an answer from the high court. Prop 12 dictates confinement rules for animals outside California by prohibiting the sale of their products from any states that do not follow its regulation.
The Ninth Circuit ruled that California may regulate “extraterritorial commercial conduct so long as it does not use price-control or price-affirmation statutes.” The 20 states filing the amici said the 9th’s ruling was “wrong” and “presents an issue of enormous doctrinal and practical importance.”
“The Ninth Circuit’s decision departed not only from those precedents but also from the decisions of five other federal circuit courts.”
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