The general public has several means available to influence the political process. Citizens of voting age are able to vote for politicians to enact legislation and vote on their behalf, and can also make their interests known to these elected officials to pressure them to vote in certain ways. Citizens may also, depending on their state, collect signatures and support for citizen-initiated ballot proposals that the general public can vote for during elections. Both processes have been used to enact animal welfare protections for farm animals.
However, these laws are subjected to challenges by people and organizations that have an interest in maintaining the current system of industrial animal farming. Such challenges are often brought by agricultural interest groups, such as the United Egg Producers or National Pork Producers Council, that represent producers of animal products and members of the animal agriculture industry. Other challenges are brought by states, or farmers themselves. As farm animal welfare laws become more common in different states, these challenges are also becoming more common.
Farm animal welfare laws may be enacted through citizen-initiated ballot proposals or by legislative initiatives enacted by elected officials. Currently, 26 states allow citizen-initiated ballot measures, but the political processes available to citizens to allow the enactment of new laws or amendment of existing laws varies state by state. For example, eighteen of these states allow citizens to amend the state’s constitution via citizen initiated constitutional amendments. Twenty-one of these states allow citizens to initiate state statutes, with fourteen that use the direct initiative process (the initiative goes directly to the ballot for voting) and nine that allow indirect initiatives (initiative is first submitted to the legislature before it may go on the ballot for voters to consider). Maryland and New Mexico are the only states that allow veto referendums to uphold or repeal enacted law, but do not allow initiated statutes or amendments.
Elected officials may also utilize the legislative process in order to introduce and vote on bills to potentially enact new laws or amend existing laws. Like the political process available to citizens, the legislative process that elected officials must follow also varies state by state. Generally, a bill is first introduced by the elected official who sponsors it. Next, the bill is assigned to a committee for review, where the committee conducts hearings before voting to either deny the bill or send it to the house or senate for debate. If the bill is sent to the house or senate, the merits of that bill are debated and legislators vote to approve it or deny it. Once the bill is approved by one branch, it goes to the other for approval. If it is approved by both, the bill is then sent to the state’s governor who may either sign the bill into law or veto the bill.
Many of these farm animal welfare laws are aimed at phasing out certain forms of enclosures for poultry and livestock that are inhumane, but serve the interests of the farming industry by producing the most amount of animal products on the least amount of space. These enclosures include battery cages for egg laying hens, gestation crates for pregnant pigs, and veal crates for calves raised for veal. These enclosures are typically so small that the animals confined in them cannot move freely and cannot engage in the natural behaviors they would normally do in an enclosure that affords them space. The tight quarters can lead to a host of physical problems for the animals, such as lesions from the friction they are constantly subjected to, or injuries due to straining to reach food and water.
These farm animal welfare laws are generally justified as necessary to protect and maintain public health. The systems of intensive farm animal confinement can negatively affect the local ecosystems near the farms, such as when the large quantities of animal waste contaminate local water sources. In addition, the animals being confined more closely can cause pathogens such as E. Coli and Salmonellosis to spread to the products that are sold to consumers. The close confinement can also cause viruses to spread quickly and easily between the animals, which is currently happening with the H5N1 virus spreading among farmed poultry.
These farm animal welfare laws have been enacted via legislative initiative or citizen-initiated ballot measure in fourteen states. These include: Arizona, California, Colorado, Florida, Kentucky, Maine, Massachusetts, Michigan, Nevada, Ohio, Oregon, Rhode Island, Utah, and Washington. Many of these laws are worded in a way to require that livestock and poultry are confined in a way that allows them to lie down, stand up, fully extend their limbs, and turn around freely. To do otherwise is considered cruel confinement under these laws, and can result in a fine or a revocation of the permits that allow the farmers to do business within the state.
Most of these laws only apply to producers of animal products within the borders of the state that enacted the law. Two exceptions include Massachusetts Question 3 (which bans the sale of pork, veal, and eggs in Massachusetts from producers that do not house the animals with a minimum amount of space), and California’s Proposition 12 (which bans the sale of pork, veal, and eggs in California from producers that do not house animals with a set amount of usable space). These laws require producers of eggs, veal, and pork to house animals in a way that allows them to move freely. In addition, these requirements apply to producers of animal products both in the state that enacted the law, as well as out of state producers. Accordingly, these are the animal welfare laws that have been subjected to the most legal challenges from producers that want to continue to sell animal products within those states.
These legal challenges are generally initiated by agricultural interest groups, that represent the many businesses involved in the packing and production of animal products. Such lawsuits include a case brought by the Iowa Pork Producers Council, in which the special interest group that represents members of the Iowa pork industry filed suit against several California officials, alleging that California’s Proposition 12 is unconstitutional. Petitioners represent a large industry, as of 2020 pork sales in Iowa totaled $40.8 billion, and nearly 150,000 Iowa jobs are dependent on the pork industry. However, the district court dismissed the case, because plaintiffs failed to raise serious questions as to the merits of the claims.
Challenges can also be brought by states on behalf of the businesses that produce animal produces within their borders. However, issues with establishing standing to sue can result when states attempt to challenge animal welfare laws on behalf of the businesses within their borders. For example, in one case a coalition of six states filed suit against the Attorney General of California. The states alleged that the requirements of California’s Proposition 2, which requires out of state egg producers to house egg laying hens with a certain amount of usable space in order to sell eggs in California, is unconstitutional. Plaintiff states attempted to establish standing on behalf of the egg producers within their borders that would face increased production costs to comply with Proposition 2. However, the case was ultimately dismissed when plaintiff states acknowledged that those private egg producers could file a claim themselves.
Lastly, legal challenges to farm animal welfare laws can be brought by the producers of animal products themselves. This is generally less common, the time and finances needed to challenge a state law make it difficult for producers to pursue a lawsuit without outside support. However, such legal challenges do occasionally happen. For example, in a case filed in Massachusetts, farmer James Dunn challenged Massachusetts’ Question 3. Plaintiff was able to file this suit because he received financial support from a nonprofit that opposes farming restrictions, and because he was joined by an anti-poverty activist. However, the court dismissed his lawsuit after finding that Question 3 was properly certified for submission to the public.
Constitutional challenges to farm animal welfare laws can fall into two different categories: due process challenges and dormant commerce clause challenges. For due process challenges, these laws can be challenged on the grounds that they are unconstitutionally vague or unconstitutionally overbroad. In a case from the Ninth Circuit, an egg farmer argued that California’s Proposition 2 was unconstitutionally vague because it did not specify a minimum cage size that egg laying hens must be confined in. The court disagreed, finding that Proposition 2 did not need to specify a minimum amount of space per bird, and that the space requirements mandating that each hen be able to extend its limbs fully and turn around freely can be discerned using objective criteria.
The most common constitutional challenge to animal welfare laws comes in the form of dormant commerce clause arguments. The dormant commerce clause of the U.S. Constitution forbids states from enacting legislation that impermissibly burdens interstate commerce. Laws can do so by having a discriminatory purpose or effect, or excessively burdening interstate commerce. There is also a concept known as the extraterritoriality doctrine, created by an implicit rule from a line of dormant commerce clause cases that went to the U.S. Supreme Court, which limits the ability of states to regulate commerce beyond their physical borders. Laws such as those created by Massachusetts’ Question 3 or California’s Propositions 2 and 12 are especially subjected to these challenges, as they regulate interstate commerce by creating regulations that apply to out of state producers of animal products.
For example, in another Ninth Circuit case,plaintiffs argued that California’s Proposition 12 violated the dormant commerce clause by invoking the extraterritoriality doctrine. Plaintiffs argued that Proposition 12 violated the extraterritoriality doctrine by forcing out of state producers to comply with the animal housing requirements, thereby California was improperly regulating the production of animal products outside its borders. The court held that, because Proposition 12 is not a price control or price affirmation statute, it does not improperly regulate extraterritorial commercial conduct. Therefore, the constitutionality of Proposition 12 was upheld.
The U.S. Supreme Court recently both clarified and complicated the future of dormant commerce clause arguments to animal welfare protections with its ruling on National Pork Producers Council v. Ross. Following the adoption of California’s Proposition 12, the National Pork Producers Council and the American Farm Bureau Federation, filed a lawsuit on behalf of the members of these organizations that are in the business of raising and processing pigs for the sale of pork. Petitioners alleged that Proposition 12, which forbids the sale of whole pork meat in California that is made from breeding pigs (or their immediate offspring) that are confined in a cruel manner, violates the dormant commerce clause by placing an impermissible burden on interstate commerce. Petitioners also argued that Proposition 12 is an attempt by California to regulate economic activity outside of its physical borders, which violates the extraterritoriality doctrine set forth by the U.S. Supreme Court’s precedent.
Petitioners argued that the cost of compliance with Proposition 12 will increase production costs for members of their organizations, which represent an impermissible burden on interstate commerce. Petitioners also alleged that, because California imports most of the pork it consumes, the cost of compliance with Proposition 12 will be dealt to mostly out of state producers. However, petitioners ultimately conceded that those costs will fall on both California and out of state pork producers alike because all producers need to comply with the housing requirements in order to sell products in California.
The district court concluded that petitioners’ complaint failed to state a claim as a matter of law and dismissed the case, and the Ninth Circuit affirmed. The U.S. Supreme Court granted certiorari (a writ by which a higher court agrees to review a lower court's decision) and affirmed the judgment of the Ninth Circuit, rejecting petitioners’ arguments that Proposition 12 violates the dormant commerce clause. The Court found no violation of the dormant commerce clause for a number of reasons. First, Proposition 12 did not have a discriminatory purpose or effect because it imposed the same burdens on in state pork producers that it imposes on out of state pork producers. Next, the Court rejected the extraterritoriality doctrine argument because the line of cases relied on do not create a per se rule that a law with practical extraterritorial effects is unconstitutional. Lastly, the Court did not use the Pike balancing test (a legal test established in a previous case) because it is the role of the legislature to balance the competing interests at stake, and a substantial burden on interstate commerce must be shown first. Accordingly, the judgment of the Ninth Circuit was affirmed.
The future of state laws to regulate the welfare of poultry and livestock animals, post National Pork Producers Council v. Ross, seems to be that states will be afforded more freedom to pass regulations and requirements that businesses must comply with in order to access the consumer markets within those states. Combined with the trend among the general public towards greater knowledge of and care about ending the abuse that animals face in large scale industrial farms, and it is likely that more states will take steps towards enacting legislation to regulate the confinement and treatment of livestock and poultry. Ridding the use of battery cages, veal crates, and gestation crates will likely take time and continued pressure from those in favor of farm animal welfare. However, post National Pork Producers Council v. Ross, it appears those changes will occur throughout the livestock and poultry industries in due time.