Ikuta Says It Does Not Offend Dormant Commerce Clause Despite Pronounced Effect on Out-of-State Farmers
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday held that California’s Proposition 12, enacted by voters in 2018, which bans the sale of whole meat either from a sow that was inhumanely confined no matter where the animal was raised or from her offspring, does not have an impermissible extraterritorial effect in violation of the dormant Commerce Clause.
Circuit Judge Sandra S. Ikuta wrote for a three-judge panel in affirming the dismissal with prejudice of a complaint brought by the National Pork Producers Council and the American Farm Bureau Federation. They sought to bar enforcement of certain Health Code provisions added by the initiative, which created the “Prevention of Cruelty to Farm Animals Act.”
Although the initiative regulates the treatment of egg-laying hens and calves raised for veal, the plaintiffs’ concern was limited to provisions designed to protect breeding pigs. In particular, they challenged the prohibition on the sale of “[w]hole pork meat that the business owner or operator knows or should know is the meat of a covered animal who was confined in a cruel manner, or is the meat of immediate offspring of a covered animal who was confined in a cruel manner.”
The act defines conditions which constitute cruelty, centering on the amount of space within which a confined animal may move.
Twenty states joined in urging a reversal of the dismissal of the action by District Court Judge Thomas J. Whelan of the Southern District of California.
The plaintiffs argued in their brief in the Ninth Circuit:
“California produces hardly any pork….But California residents consume 13% of all the pork eaten in the U.S…..As a result, California imports huge quantities of pork raised in other states. The offspring of around 673,000 sows is required annually to satisfy California consumers’ demand for pork—yet only about 1,500 sows are commercially bred in California….Proposition 12 imposes California’s preferred animal husbandry methods—sow housing requirements that almost no farmer in the U.S. uses (for good reason)—on the producers of all these out-of-state raised pigs.”
The brief continues:
“Furthermore, because pork is a complex national market, in which most hogs are not bred for a single state’s market and each hog is butchered into many different cuts of meat that are shipped to different buyers all across the country, Proposition 12 in fact regulates the housing of far more sows than that. Proposition 12 substantially interferes with a complex nationwide market served by thousands of farmers, and it effectively regulates farmers who produce no pork that is sold in California and who have no connection to California….In addition, policing Proposition 12 inserts California’s regulatory tentacles deep into farms beyond its boundaries.”
Ikuta, in her opinion affirming dismissal, said:
“Under our precedent, state laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects….A state law may require out-of-state producers to meet burdensome requirements in order to sell their products in the state without violating the dormant Commerce Clause….Even if a state’s requirements have significant upstream effects outside of the state, and even if the burden of the law falls primarily on citizens of other states, the requirements do not impose impermissible extraterritorial effects.”
The judge acknowledged that “as a practical matter,” Proposition 12 “may result in the imposition of complex compliance requirements on out-of-state farmers,” but that, she said, does not mean there is “an impermissible extraterritorial effect,” nor did allegations of dramatically increased costs to the farmers, she added.
“Even though the Council has plausibly alleged that Proposition 12 will have dramatic upstream effects and require pervasive changes to the pork production industry nationwide, it has not stated a violation of the dormant Commerce Clause under our existing precedent,” Ikuta wrote. She commented that under recent decisions, “the dormant Commerce Clause is not yet a dead letter, it is moving in that direction.”
The case is National Pork Producers Council v. Ross, 20-55631.
The Ninth Circuit on Oct. 15, 2020, in a memorandum opinion, affirmed the denial by District Court Judge Christina A. Snyder of the Central District of California of a preliminary injunction sought by the North American Meat Institute (“NAMI”) to block enforcement of certain of the new Health Code provisions. The panel—composed of Ikuta, Circuit Judge Consuelo M. Callahan, and District Court Judge Cathy Ann Bencivengo of the Southern District of California, sitting by designation—said:
“The district court did not abuse its discretion in holding that NAMI was unlikely to succeed on the merits of its dormant Commerce Clause claim. NAMI acknowledges that Proposition 12 is not facially discriminatory. The district court did not abuse its discretion in concluding that Proposition 12 does not have a discriminatory purpose given the lack of evidence that the state had a protectionist intent.”
Seeking certiorari in the U.S. Supreme Court, the plaintiff stated the “question presented” to be “[w]hether the Constitution permits California to extend its police power beyond its territorial borders by banning the sale of wholesome pork and veal products imported into California unless out-of-state farmers restructure their facilities to meet animal-confinement standards dictated by California.”
Certiorari was denied on June 28.
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