In November 2018, California voters passed Proposition 12. This ballot initiative was pushed by animal rights extremists and seeks to regulate the production of pork, eggs, and veal throughout the United States (and beyond). This law has been subject to multiple court challenges over the last year. But these legal challenges have (so far) been unsuccessful, and the law became fully effective on January 1, 2022. This article will provide answers to key questions that pork producers may have about the new law.
What does Proposition 12 actually say? On the surface, Proposition 12 does not appear to be very controversial. The law prohibits a business from “knowingly engag[ing] in the sale within California” of pork that the business “knows or should know is the meat of a [breeding pig] who was confined in a cruel manner, or is the meat of immediate offspring of a [breeding pig] who was confined in a cruel manner.” Nobody favors cruel treatment of animals.
Of course, as with many things, the devil is in the details (or, in the case of a new law, the definitions). Proposition 12 uses the definition of the term “confined in a cruel manner” to impose two confinement standards applicable to breeding pigs:
- First, a breeding pig is confined in a cruel manner if it is confined “in a manner that prevents the animal from lying down, standing up, fully extending the animal’s limbs, or
turning around freely”; or
- Additionally, a breeding pig is confined in a cruel manner if, after December 31, 2021, it is confined “with less than 24 square feet of usable floorspace per pig.”
In other words, the law prohibits the use of gestation crates in commercial sow farms to protect and provide individualized care and treatment to gilts and sows and, as of January 1, 2022, establishes an arbitrary minimum space requirement for breeding pigs.
How does Proposition 12 impact pork producers in Minnesota and Iowa (and anywhere else not in California)? On its face, Proposition 12 only restricts sales of pork within California and does not appear to directly regulate farmers located outside of California. But this benign appearance hides a far more sinister practical reality. In order to avoid liability under the new law, businesses who sell pork in California (e.g., retailers, wholesalers, and food distributors) face civil and criminal sanctions if they violate the law. Accordingly, these businesses will almost certainly require their suppliers to provide written certification that the pork they purchase was produced in compliance with the requirements of Proposition 12. These certification requirements will continue to ripple upwards through the supply chain to packers who process the pork, the hog farmers who finish the pigs from which the pork is produced, and ultimately, the sow farms that produce the weaned pigs. In other words, Proposition 12 is a wolf in sheep’s clothing that uses its benign appearance to hide a deeper purpose to regulate hog farmers throughout the United States.
The true purpose of Proposition 12 is more evident in the proposed regulations that the California Department of Food & Agriculture has published (but that have not yet been finalized). Under the proposed regulations, all distributors who sell pork in California must register with the state. And in order to obtain this registration, a distributor must maintain records by which they can trace all pork sold in California to a sow farm that is certified by the State of California as complying with Proposition 12. In other words, the proposed regulations would require hog farmers (wherever they are located) to subject themselves to the regulatory authority of the State of California (including, as described more fully below, annual farm inspections) if pork produced from the farmers’ hogs may eventually be sold in California.
What is required for a sow farm to be certified? During the first year when the new law is fully in effect (i.e., January 1, 2022 through December 31, 2022), the proposed regulations allow a sow farm to self-certify that the farm complies with the requirements of Proposition 12. Beginning on January 1, 2023, however, the proposed regulations would require a sow farm to obtain certification from either the California Department of Food & Agriculture or a third party “certifying agent” who has been approved by the department. Certification would specifically require an annual inspection of “each production unit, facility, and site,” including the actual production areas, that produces pigs that will be processed into pork that may be sold in California. The proposed regulations would also allow additional, unannounced inspections by certifying agents (which could include animal rights activists who become accredited by the department). Finally, a certified producer is required to maintain (and make available to a certifying agent on request) detailed transaction and facility records about their hog production. Thus, a hog farm in Iowa or Minnesota would be subject to intrusive inspections by California regulators (and the significant biosecurity risks that these inspections would pose) if a farmer’s customers may sell the pork produced from the pigs in California.
What happens now? The short answer is—nobody knows for sure. As of today (January 10, 2022), the requirements of California Proposition 12 are fully in effect. Multiple lawsuits have been filed to challenge the legality of Proposition 12 or delay its implementation. Some of these suits are still active (for example, a request by the National Pork Producers Council and American Farm Bureau Federation asking the United States Supreme Court to review Proposition 12 is pending before the Court), and other suits have been brought to delay the implementation of the law. So far, however, these lawsuits have not been successful. As a result, the State of California could begin enforcing the law at any time. Additionally, Proposition 12 creates a private cause of action that would allow private parties (such as animal rights groups) to file lawsuits to enforce the law.
To add further confusion, Proposition 12 required the California Department of Food & Agriculture to finalize regulations to implement the law by September 1, 2019. More then 2 years after this deadline, however, the regulations still have not been finalized. As a result, hog farmers are left to guess about significant questions about how the law will be applied and enforced (such as how the square footage will be calculated).
What can hog farmers do today? During this period of uncertainty, hog farmers may be pulled in multiple directions. Some packers and pork distributors have announced that they do not intend to sell pork in California under the new law, while others are actively seeking out sources of compliant pigs in the marketplace. In the short term, this uncertainty will likely create significant disruptions (and opportunities) in the hog market.
One step that hog farmers can take is to carefully review their existing contracts—including any contracts to acquire weaned pigs and contracts to sell finished hogs—to clearly understand their rights and obligations. In reviewing these contracts, hog farmers should clearly understand whether the existing contract would require the farmer to comply with the requirements of Proposition 12 and, if this is not required now, whether a purchaser can add those requirements during the contract. If a farm already complies with the requirements of Proposition 12, can the
farm charge a premium for those pigs based on supply and demand or whether the contract price is already locked in? Further, if a contract requires compliance with Proposition 12 (either now or in the future), the farmer should begin planning the necessary facility and operational changes or consider whether there is any right to terminate a contract early. Finally, if a purchaser requests (or requires) written certification from a farmer, the farmer needs to carefully read and understand exactly what the farmer is (and is not) certifying before signing the document.