Beyond electing politicians to enact and vote on legislation, there are other ways the public may become involved in the political process. Two means by which the public can influence or participate in the process of lawmaking include legislative initiatives and ballot proposals. While both processes involve the creation or modification of laws, there are differences in how they are created and implemented, and what parties are involved in initiating these means for legal change. In the realm of farm animal protections, both processes have been used to effectuate policies that protect the welfare of farm animals in a variety of ways.
However, these processes are subject to legal challenges from parties that oppose the implementation of these policy changes. Challenges to proposed policies that afford protections to farm animals are often brought by members of the agricultural industry, or organizations that represent the interests of the agricultural industry. Such groups include the American Farm Bureau Federation, the National Pork Producers Council, the National Cattleman’s Beef Association, and the National Chicken Council. Some challenges are brought by states themselves, which can bring suit against legal changes in other states on behalf of the agricultural producers within their borders. As the general public becomes more aware and concerned about the welfare of farm animals, these legal changes become more common, leading to legal challenges that set precedent for how states may enact farm animal welfare protections.
This article will explore those legal challenges and the precedent that has been set to allow states to enact laws that protect the welfare of animals in the agriculture industry. First, this article will explore the means by which states enact such laws via citizen-initiated ballot proposals or through elected officials. Next, this article will explore welfare laws aimed at phasing out inhumane means of farm animal confinement, the specific means of confinement used in the agricultural industry, and the negative effects of these housing systems. There will then be a discussion of the specific laws enacted in the states that have passed legislation to regulate the welfare of farm animals. After that, this article will explore the legal challenges to those laws. To start, there will be a discussion regarding the organizations and people that initiate those legal challenges. Next, this article will examine the type of legal challenges brought against farm animal welfare laws. Lastly, this article will examine a recent U.S. Supreme Court case, National Pork Producers v. Ross, a case regarding a dormant commerce clause challenge to a California farm animal welfare law.
II. Types of Initiatives
There are two primary ways that farm animal welfare laws may be enacted: through citizen- initiated ballot proposals and by legislative initiatives enacted by elected officials. Currently, 26 states allow citizen-initiated ballot measures. (See “Ballot Measure” Ballotpedia, 2022, available at https://ballotpedia.org/2022_ballot_measures). However, there is tremendous variation among states for what political processes are available to citizens to allow the enactment of new laws or amendment of existing laws. 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. The following section explores both of these processes and examines some of the variations and similarities between them.
A. Ballot Proposals
Ballot proposals (also called ballot initiatives, popular initiatives, or citizen referendums) allow citizens to propose statutes or constitutional amendments for the public to vote on. Proponents of these ballot proposals collect signatures from eligible voters in order for the proposals to qualify for voting on a statewide ballot. There are currently 26 states that allow citizens to initiate ballot measures, but the way these processes work vary state by state. There are 18 states that allow citizens to amend the state’s constitution via citizen initiated constitutional amendments. Twenty-one states allow citizens to initiate state statutes, with fourteen that allow direct initiatives and nine that allow indirect initiatives. (See “Initiated State Statute” Ballotpedia, 2022, available at https://ballotpedia.org/Initiated_state_statute). While an indirect initiative is first submitted to the legislature before it may go on the ballot for voters to consider, a direct initiative skips this step and goes directly to the ballot for voting. Maryland and New Mexico are the only states that allow veto referendums to uphold or repeal enacted law, but not initiated statutes or amendments. (See “Veto Referendum” Ballotpedia, 2022, available at https://ballotpedia.org/Veto_referendum).
States vary in how they allow initiatives to qualify for placement on the ballot for voting. However, generally the process contains the following steps. First, a petition is filed with the state. Next, that petition is reviewed for compliance with that state’s statutory requirements. After that, a ballot title and summary are prepared for circulation to voters so the voting public can understand the issue on which they are voting and the outcome of their potential vote. Next, the petition is circulated to obtain the required number of signatures of registered voters. The number of signatures required varies state by state, ranging from around 17,000 to upwards of 500,000. If the petition receives the number of signatures required, it is then submitted to the designated state official so those signatures may be verified. After those signatures are verified, the question goes on the ballot for the general public to vote on in the next election or is sent to the legislature. (See “Initiative and Referendum Overview and Resources” NCSL, 2022, available at https://www.ncsl.org/elections-and-campaigns/initiative-and-referendum-overview-and-resources).
B. Legislative Initiatives
Legislative initiatives are another way to enact new laws or repeal or alter existing laws. Legislative initiatives are proposed and voted on by elected representatives within the state’s legislative body. The legislative process varies state by state, but each state shares a similar framework for how the process operates. First, a bill is introduced by the elected official who sponsors it. Next, the bill is assigned to a committee for review. After that, the committee conducts hearings before voting to either deny the bill or send it to the state’s house of representatives or senate for debate. If the bill is sent to the house or senate, the elected officials of that body debate the merits of that bill and either 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 house and senate, the bill is then sent to the state’s governor who may either sign the bill into law or veto the bill. (See “Learning the Game” NCSL, 2018, available at https://www.ncsl.org/legislative-staff/civics-education/learning-the-game).
This process can take a tremendous amount of time and effort, as elected officials often have differences in opinion that can cause a bill to stagnate. This process can also be slowed or hastened by outside forces that have an interested in enacting changes or maintaining the current legal framework. State legislators are motivated by the constituents that elect them, as well as by interest groups that lobby for these changes or to maintain the existing legal framework. Before being voted upon by representatives, the bills that become laws are often written and supported by these outside interest groups that work with legislators to get the bills passed into law.
III. Farm Animal Legal Protections
While there are laws in place at the federal and state level to provide welfare protections to animals, few of these laws actually apply to farm animals. At the federal level, the Animal Welfare Act purposefully excludes farm animals from coverage. (7 U.S.C. § 2132). The Twenty- Eight Hour Law, which limits the time period animals may be transported for, does nothing to regulate the daily living conditions of farm animals. (49 U.S.C. § 80502). Similarly, the Humane Methods of Slaughter Act does not regulate the slaughter of poultry or regulate the treatment of farm animals beyond the means of slaughter. (7 U.S.C. §§ 1901 – 1907). Animal rights activists and organizations have noted the lack of farm animal welfare protections at the federal level, and have documented the failure of proposed federal laws that would have provided some legal protections to livestock and poultry animals throughout the majority of their lives on factory farms. (See “Legal Protections for Animals on Farms” Animal Welfare Inst., 2002, available at https://awionline.org/content/farm).
At the state level, farm animal welfare is similarly overlooked. While states have laws that prohibit animal cruelty, the definition of what is considered animal cruelty under these laws often excludes the treatment of farm animals. These laws, such as those in place in New Mexico, can do so by exempting some or all species of farm animals from the type of animals able to be protected from cruel treatment and reserving that legal protection for companion animals. (N.M. Stat. Ann. § 30-18-1). The laws may also exempt some of the practices that are used in the farming industry from being considered cruel when performed on farm animals, such as the anti- cruelty laws in Montana. (Mont. Code Ann. § 45-8-211). Some states, such as Texas, have anti- cruelty statutes that do cover the mistreatment of farm animals. (Tex. Penal Code § 42.09). However, across the board, animals in the agricultural industry receive lesser legal protection under anti-cruelty laws than other animals.
Due to the inconsistent coverage of farm animals under existing anti-cruelty laws, animal rights activists have turned to other forms of laws to regulate the treatment of farm animals. The following section will explore the current farming practices that animal rights activists have recognized as inhumane, and introduce the type of laws to regulate the farming industry by rendering these inhumane practices unlawful.
A. Housing Requirements, Generally
Many of the laws to provide animal welfare protection for livestock are aimed at creating more humane farm animal enclosures and phasing out less humane enclosures that have become the norm in the farming industry, such as battery crates for poultry, gestation crates for pigs, and veal crates for calves. Production of poultry and livestock no longer occurs on smaller, family run farms, at least for the most part. The norm in the poultry and livestock industry are large farms that are under contract by major corporate agriculture companies. Poultry and livestock are raised on massive farms with single species buildings or open-air pens, with the main goal of producing the largest amount of animal products on the least amount of land. This has led to tremendous efficiency and a boom in the amount of animal products being produced in the U.S. each year, but has led to negative outcomes as well. (See “Inhumane Practices on Factory Farms” Animal Welfare Inst., 2023, available at https://awionline.org/content/inhumane-practices-factory-farms).
Because factory farming prioritizes output of animal products by maximizing the number of animals kept in each facility, animal welfare activists have been changing the current means of farming by proposing and creating laws which prohibit cruel means of confinement for poultry and livestock. Such laws mandate that enclosures allow each animal a specific amount of space and create set standards by which that amount of space is measured. However, such laws are generally not enacted for the express purpose of farm animal welfare. In order to galvanize the public and legislators to vote in favor of them, these laws are usually justified as necessary to protect the public health, which can be jeopardized by factory farming practices. For example, the buildup of large quantities of animal waste that occurs on these large-scale farming operations can lead to run off that pollutes local waterways and can negatively affect air quality. In addition, the close confinement of large quantities of livestock and poultry animals can lead to increased risk of contamination of the animal products sold to consumers. (See Anomaly, Jonathan, What’s Wrong With Factory Farming?, 8 Public Health Ethics, 246 – 258 (2015), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2392453).
Pathogens can be spread more easily among animals confined in close quarters, and the likelihood for viruses to spread among large groups of animals is higher when those animals are confined closely together. Pathogens that are commonly spread to consumers via animal products include E. Coli, Salmonellosis, and Giardiasis. These pathogens can cause diarrhea, nausea, vomiting, and even death when immunocompromised individuals are exposed to them. In addition, the confinement of animals in close quarters can lead to an increase in the likelihood of farm animals spreading pathogens and viruses to each other. As of 2023, an outbreak in the bird flu H5N1 has caused 58,789,591 poultry to become sick with the virus, with many of the affected birds spreading the virus on large scale factory farms. (See “H5N1 Bird Flu: Current Situation Summary” CDC, 2023, available at https://www.cdc.gov/flu/avianflu/avian-flu-summary.htm). With these considerations in mind, many states have enacted legislation to phase out battery cages, gestation crates, and veal crates.
B. Battery Cages
Battery cages are a housing system used to house large quantities of poultry in a small amount of space. These are rows of small metal cages, usually running along a straight line, that house poultry in large warehouses. These can house other types of animals, but are most commonly used to house egg laying hens. The floors of these cages are sloped so that the eggs can roll out of the cages, where they are carried away. On the other side of the cage, feeding troughs allow the animals access to feed. These cages typically house multiple birds, and the size of the cage can vary based on the number of animals it houses. The 2017 guidelines from the United Egg Producers state that each bird should have at least 67-86 square inches of space, which is less floor space than a standard piece of printer paper at the lower end of the scale. (See “Animal Husbandry Guidelines for U.S. Egg-Laying Flocks” United Egg Producers, (2017), available at https://uepcertified.com/).
Proponents of battery cages argue that chickens with access to additional space may be subject to additional stress, which can cause the birds to develop aggressive tendencies. These aggressive tendencies include cannibalism and feather pecking. However, the use of battery cages has many negative effects as well. Because the birds have limited space to move, they cannot meet their natural behavioral needs, such as their need to nest, perch, or dustbathe. In addition, the cages are typically so small that the birds struggle to move and cannot lift their wings freely, which leads to muscle and bone atrophy from nonuse and skin lesion from constant friction. (See “Everything You Should Know About Battery Cages” The Humane League, (2020), available at https://thehumaneleague.org/article/battery-cages).
C. Gestation Crates
Gestation crates are used to house pregnant pigs during their breeding period, which lasts a little under four months. These stalls are generally seven feet long and two feet wide, barely larger than a fully grown sow and leaving them no room to turn around or move freely. The stalls typically contain no bedding, and slatted floors to allow the waste created by the sows to flow out of the stalls. The sows remain in these stalls for most of their pregnancies, until they are moved to similar farrowing crates where they will give birth. The sows are given little chance to raise their piglets as they would naturally do, with piglets taken away shortly after birth. (See “Pigs” Animal Welfare Inst., (2023) available at https://awionline.org/content/pigs).
Pork producers argue that the gestation and farrowing crates are necessary to protect pregnant pigs, reduce pig on pig aggression during pregnancy, and ensure piglets are born in a safe and controlled space. However, the lack of space afforded to pregnant pigs eliminates their ability to perform their natural behaviors, such as foraging, nesting, or forming social bonds with other pigs. Eliminating the ability of the pregnant pigs to move freely can also lead to pain from lack of movement, sores and lesions from friction, and injuries from straining to reach food or from standing on the slatted floors. (See “What are Gestation Crates for Pigs and Why Are They Bad?” The Humane League, (2021), available at https://thehumaneleague.org/article/pig-gestation-crates).
D. Veal Crates
Veal is the meat from a young cow, typically younger than a year old, while meat from older cows is called beef. Veal is commonly produced from male calves that are slaughtered around 16-18 weeks old, that are typically confined in veal crates until they are slaughtered. These crates are designed to keep the calves from moving, to stop the veal calves from developing muscle tissue and making their meat tougher. Denying these calves the ability to move can lead to a multitude of health and behavioral issues. For example, the restricted space can cause the calves to suffer from muscle and bone atrophy, and as many as 40% of veal calves suffer from arthritis as a result of their lack of movement. The restricted space of the crates can also lead the calves to engage in abnormal repetitive behaviors as a result of their mental anguish. These behaviors include obsessively biting at the bars of the crates, extreme lethargy, and rolling their tongues. (See “Veal: What Animal Does it Come From and Why is it Cruel?” The Humane League, (2021), available at https://thehumaneleague.org/article/veal-animal).
IV. Ballot Proposals and Legislative Initiatives to Protect Farm Animal Welfare
As a means of enhancing animal welfare, animal welfare advocates have been focusing on changing the farming industry mainly by phasing out the three aforementioned means of intensive confinement: battery cages, veal crates, and gestation crates. Beginning in 2002, a handful of states have been successful with ballot proposals and legislative initiatives focused on farm animal welfare by banning the use of these means of intensive confinement. Currently, there are ten states that ban or restrict the use of gestation crates to house pregnant pigs. There are nine states that ban or restrict the use of veal crates to confine calves for veal. Eleven states ban the use of battery cages to house egg laying hens. There are four states that have used the ballot initiative process to ban the use of these housing systems. These states include: Florida in 2002, Arizona in 2006, California in 2008 and 2018, and Massachusetts in 2016. However, many other states have enacted legislation via the traditional legislative process in order to ban the inhumane confinement of farm animals. The following section explores some of the ballot proposals and legislative initiatives that have led to the formation of farm animal welfare laws.
A. Florida Amendment 10, 2002
The first instance of a ballot measure being used to regulate the confinement of farm animals was passed in Florida. In 2002, Florida voters approved of Amendment 10 to prevent the confinement of pregnant pigs in inhumane conditions. Amendment 10 requires that pregnant pigs must be confined in a manner that allows them to turn around freely, with exceptions for veterinary treatment and the pre-birthing period. (See Fla. Const. Art. X, § 21). Amendment 10 became effective in 2008, six years after it was approved by Florida voters. The initiative was sponsored by Floridians for Humane Farms, and passed with roughly 55% votes in favor. (See “Florida Animal Cruelty, Amendment 10 (2002)” Ballotpedia, 2023, available at https://ballotpedia.org/Florida_Animal_Cruelty,_Amendment_10_(2002)).
B. Arizona Proposition 204, 2006
The next farm animal welfare regulation was passed two years later. Arizona voters passed Proposition 204 in 2006 by means of a citizen initiative. Proposition 204 requires farmers raising pigs and cows for veal to provide the animals with enough space to turn around and fully extend their limbs, with certain exceptions for transportation, during the prebirth period, and other circumstances that require greater confinement. Failure to do so is a misdemeanor offense. (See Ariz. Rev. Stat. § 13-2910.07). Proposition 204 was sponsored and supported by a coalition of several animal welfare groups: the Arizona Humane Society, the Humane Society of the United States, the Farm Sanctuary, and the Animal Defense League of Arizona. Proposition 204 was also supported by several local media outlets, an Arizonan radio celebrity, and a Maricopa County Sheriff. Opposition to Proposition 204 consisted of a campaign of Arizonan farmers and ranchers, which was funded by agricultural interest groups including the American Veal Association, National Pork Producers Council, American Farm Bureau Federation, and others. Proposition 204 passed with 62% support, becoming effective in 2012. (See “Arizona Proposition 204, Humane Farms Initiative (2006)” Ballotpedia, 2023, available at https://ballotpedia.org/Arizona_Proposition_204,_Humane_Farms_Initiative_(2006)).
C. Oregon Senate Bill 694, 2007 - Senate Bill 805, 2011 - Senate Bill 1019, 2019
Beginning in 2007, the state of Oregon enacted a series of legislative initiatives to regulate the welfare of farm animals. First, Oregon legislators passed Senate Bill 694 to regulate the confinement of livestock animals. The law outlaws the keeping of pregnant pigs and calves for veal in enclosures that do not allow them to turn around freely, which means the animals must be able to turn in a complete circle in their enclosures without impediment and without touching any side of the enclosure. There are certain exceptions that allow intensive confinement of livestock animals, which include veterinary care or transportation. The law went into effect in 2012. (See Or. Rev. Stat. Ann. § 600.150)
In 2011, Oregon legislators passed Senate Bill 805 to regulate the housing of egg laying hens. The law created new standards for the confinement of egg laying hens in order to promote humane welfare standards and protect consumers from food borne pathogens. These housing standards are based upon guidelines for chicken housing set forth by the American Humane Association’s farm animal welfare certification program, and the United Egg Producers animal husbandry guidelines. Farms that do not comply with these animal welfare standards may be subject to a civil penalty or have their egg handler’s license revoked. (See Or. Rev. Stat. Ann. §§ 632.835 – 632.850).
Lastly, in 2019, Oregon legislators passed Senate Bill 1019 to amend the existing standards regulating the production and sale of eggs and egg products in the state of Oregon. The law prohibits certain means of housing egg laying hens and requires Oregon egg producers to adopt cage free housing for egg laying hens. The law also limits the sale of eggs and egg products in Oregon by producers that do not meet these housing standards. These laws will go into effect in 2024.
D. California Proposition 2, 2008 - Assembly Bill 1437, 2010 - Proposition 12, 2018
The next series of farm animal housing regulations were enacted in California over the course of ten years. First, in 2008, California voters enacted Proposition 2 to prohibit the cruel confinement of farm animals. Proposition 2 prohibits California farmers from tethering or confining pregnant pigs, veal calves, and egg laying hens in a way that prevents them from lying down, standing up, fully extending their limbs, or turning around freely. However, out of state producers were not subject to these requirements. (See Cal. Health & Safety Code §§ 25990 - 25994.8). Proposition 2 was supported by a variety of groups including the Humane Society of the United States, the United Farm Workers, the California Democratic Party, and multiple media outlets. Supporters argued that relieving the animals of the stress that comes from harsh confinement conditions leads to safer food products and protects the public health. Opponents include interest groups that represent members of the commercial egg industry that argued the provisions would provide additional financial burdens. Opponents also included food safety advocates, public health groups, and animal rights activists that did not believe the provisions were strong enough. Proposition 2 passed with 63% votes in favor. Proposition 2 gave California egg producers six years to comply with its confinement requirements and went into effect in 2015. (See “California Proposition 2, Farm Animal Confinement Initiative (2008)” Ballotpedia, 2023, available at https://ballotpedia.org/California_Proposition_2,_Farm_Animal_Confinement_Initiative_(2008)).
Next, in 2010, the California legislature enacted Assembly Bill 1437, which added several provisions to the laws created by Proposition 2. These provisions prohibit selling eggs in California that are produced by hens confined under conditions that do not meet the confinement requirements of Proposition 2, closing the loophole that allowed out of state egg producers to sell eggs from hens that are not housed in accordance with Proposition 2.
Lastly, in 2018, California voters passed Proposition 12 to amend the California Health and Safety Code and build upon the prohibitions set forth by Proposition 2 and Assembly Bill 1437. Proposition 12 prohibited the sale of pork in California from a seller that knows or should know that the meat is from an animal that was confined in a cruel manner, or is the meat of the immediate offspring of an animal that was confined in a cruel manner. Confinement in a cruel manner refers to confining an animal in a manner that does not allow the animal to turn around freely, lie down, stand up, or fully extend their limbs. It also extends to confining a breeding pig in a space less than 24 square feet of usable floor space per pig. While Proposition 2 allowed in state producers six years to comply and did not apply to out of state producers, Proposition 12 went into effect six weeks after it was passed and applied to in state and out of state producers alike. (See Cal. Health & Safety Code §§ 25990 – 25993). Proponents and opponents of Proposition 12 include many of the same groups that supported or opposed Proposition 2. Proposition 12 passed with roughly 63% votes in favor. (See “California Proposition 12, Farm Animal Confinement Initiative (2018)” Ballotpedia, 2023, available at https://ballotpedia.org/California_Proposition_12,_Farm_Animal_Confinement_Initiative_(2018)).
E. Colorado Senate Bill 08-201, 2008 - House Bill 20-1343, 2020
Around the same time California passed Proposition 2, Colorado was enacting legislation to regulate the welfare of farm animals as well. In 2008, Colorado legislators passed Senate Bill 08- 201 to prohibit the inhumane confinement of calves raised for veal and pregnant pigs. The law prohibits confinement of such livestock that limits their ability to stand up, lie down, and turn around freely. (See Colo. Rev. Stat. § 35-50.5-102). The law also requires the Colorado commissioner of agriculture to establish a process to consider humane alternatives to current livestock production practices. The legislation was justified as necessary to protect the public peace, health, and safety. The provisions relating to calves raised for veal went into effect in 2012, while the provisions to protect pregnant pigs went into effect in 2018.
Later, in 2020, the Colorado general assembly passed House Bill 20-1341 to establish standards for housing egg laying poultry. The law requires farm owners or operators to house the egg laying poultry with a certain amount of usable floor and vertical space per hen. (See Colo. Rev. Stat. §§ 35-21-201 – 35-21-209). The law also authorizes the commissioner of agriculture to impose a civil penalty of up to $1,000 per violation, create rules to enforce the bill, and use a government or private inspection process. There are exceptions to the bill, such as for farms with 3,000 or fewer egg-laying hens, or those that sell fewer than 100 cases of eggs per week. (See Colo. Rev. Stat. § 35-21-204). The provisions that mandate a set amount of usable floor space went into effect in 2023, while the provisions requiring a cage-free system with sufficient space per hen go into effect in 2025. (See Colo. Rev. Stat. § 35-21-203).
F. Maine Senate Proposal 385, 2009
In 2009, Maine passed Senate Proposal 385 to prohibit the inhumane confinement of pregnant pigs and calves raised for veal. This law prohibits confinement that prevents the livestock from being unable to stand up, lie down, or turn around freely. (See Me. Rev. Stat. tit. 17, § 1039). Violation of these standards is a class D crime, and there is a specific provision setting forth that following industry best practices is not an affirmative defense to any violation. These laws went into effect in 2011.
G. Michigan House Bill 5127, 2009 – Senate Bill 174, 2019
Around the time Maine was enacting legislation to regulate the confinement of livestock, Michigan was doing the same. In 2009, Michigan legislators passed House Bill 5127 to amend the state’s animal industry act. (See Mich. Comp. Laws Serv. §§ 287.701 – 287.747). The laws authorize the appointment of a state veterinarian to serve within the department of agriculture and create standards by which livestock should be kept. (See Mich. Comp. Laws Serv. § 287.707). The laws also provide standards for the keeping of egg laying hens, pregnant pigs, and calves raised for veal. (See Mich. Comp. Laws Serv. § 287.746). The provisions that apply to veal went into effect in 2012, while the provisions that apply to egg laying hens and pregnant pigs went into effect in 2019.
Ten years later, in 2019 Michigan legislators passed Senate Bill 174 to build upon House Bill 5127 and provide further standards for the keeping of livestock. These provisions extended the deadline for livestock producers to comply with the housing standards for egg laying hens and pregnant pigs set forth in House Bill 5127. The bill also bans the sale of egg products in Michigan from producers that do not comply with these keeping standards by 2025.
H. Ohio House Bill 414, 2010
In 2010, Ohio legislators used a legislative initiative to amend the state’s constitution in order to govern the care and well-being of poultry and livestock in the state. Ohio legislators passed House Bill 414 to establish a livestock care standards board and appoint the director of agriculture to govern the well-being of livestock and poultry in Ohio. (See Oh. Const. Art. XIV, § 1). The bill received bipartisan support and passed in 2010. The law created new standards for the housing of pregnant pigs and calves raised for veal. (See Ohio Rev. Code Ann. §§ 904.01 – 904.09) The provisions governing the keeping of pigs will go into effect in 2026, while those governing the keeping of calves went into effect in 2018.
I. Washington Senate Bill 5487, 2011 - House Bill 2049, 2019
In 2011, Washington legislators utilized the legislative initiative process to pass Senate Bill 5487 to regulate the production of eggs and egg products. The laws ban certain housing conditions for egg laying hens, based on the American Humane Association’s facility system plan for housing of egg laying hens, and applies to all egg producers in the state of Washington. (See Wash. Rev. Code Ann. §§ 69.69.010 – 69.25.930). Housing for egg laying hens must be compliant with these standards, except for farms with less than 3,000 egg laying hens or those producing poultry other than domestic chickens. (See Wash. Rev. Code Ann. § 69.25.065). The regulations will go into effect in 2024.
In 2019, Washington legislators passed House Bill 2049 to further regulate the sale of eggs and egg products from producers that do not comply with Washington’s standards. The laws ban the sale of eggs and egg products in Washington from producers that do not comply with the standards for keeping egg laying hens. (See Wash. Rev. Code Ann. § 69.25.065). These provisions use the same standards for housing egg laying hens that were set forth in Senate Bill 5487, that were based on the American humane association’s facility system plan to house egg laying hens. The provisions will go into effect in 2024.
J. Rhode Island Senate Bill 2191, 2012 - House Bill 7456, 2018
Legislators in Rhode Island also used the legislative initiative process to create farm animal welfare regulations in the state. In 2012, Rhode Island legislators passed Senate Bill 2191 to amend current laws and add a chapter regulating the confinement of livestock animals. (See R.I. Gen. Laws. §§ 4-1.1-1 – 4-1.16). The regulations created new standards for confinement of pregnant pigs and calves for veal. (See R.I. Gen. Laws § 4-1.1-3). The provisions render it an unlawful confinement if pregnant pigs or calves raised for veal are confined in a way that prevents the animal from turning around freely, lying down, standing up, or fully extending their limbs. The provisions went into effect in 2013.
To expand upon the previous laws to regulate the confinement of pigs and calves, Rhode Island legislators passed House Bill 7456 in 2018 to change the definitions of what confinement is acceptable for pregnant pigs, calves raised for veal, and egg laying hens. (See R.I. Gen. Laws § 4-1.1-3 – 4-1.1-6). The bill received support from Rhode Island’s democratic party. While the previous laws did not include egg laying hens, House Bill 7456 created standards for the humane housing of egg laying hens. (See R.I. Gen. Laws § 4-1.1-1) The bill bans the use of battery cages to confine egg laying hens, by rendering it unlawful to confine the hens in enclosures that do not allow them to fully extend their limbs. These laws will go into effect in 2026.
K. Kentucky Administrative Regulation 302 21:030, 2014
Beginning in 2010, Kentucky legislators used the legislative initiative process to pass House Bill 398, which requires the Kentucky Livestock Care Standards Commission to make recommendations to the Board of Agriculture to create standards for the keeping of livestock. In response, the Kentucky Board of Agriculture passed Administrative Regulation 302 21:030 in 2014 to provide additional standards and authorized practices for the keeping of livestock for beef and veal. These standards ensure that beef cows and veal calves have sufficient space, access to food and water, and that veal calves are kept in group pens to allow the calves to socialize. (See 302 Ky. Admin. Regs. 21:030). These provisions went into effect in 2017.
L. Massachusetts Question 3, 2016 - Senate Bill 2603, 2021
In 2016, Massachusetts voters approved Question 3 on the Massachusetts ballot, also known as An Act to Prevent Cruelty to Farm Animals. This ballot measure created provisions that require Massachusetts farmers to house chickens, pigs, and calves with sufficient room to stand up, lie down, turn around, and fully extend their limbs. (See ALM Spec L ch. S51A, §§ 1 – 10; M.G.L.A. 129 App. § 1-1 - 10). The measure also prohibits the sale of eggs or meat in Massachusetts from animals housed in conditions that do not meet these requirements. (See ALM Spec L ch. S51A, § 3; M.G.L.A. 129 App. § 1-3).
Several years later, legislators in Massachusetts utilized the legislative process to expand the provisions relating to the treatment of egg laying hens. In 2021, Massachusetts legislators passed Senate Bill 2603 to regulate the welfare of egg laying hens and establish uniform cage-free standards. (See ALM Spec L ch. S51A, § 5). The bill builds upon the previous ballot measure by creating specific space requirements for the housing of egg laying hens and banning the sale of eggs or egg products in Massachusetts from producers that violate these provisions. (See ALM Spec L ch. S51A, § 3; M.G.L.A. 129 App. § 1-3). The law went into effect in 2022.
M. Utah Senate Bill 147, 2021
Similar to the legislation passed in Massachusetts, Utah legislators passed Senate Bill 147 in 2021 to regulate the confinement of egg laying hens. The provisions prohibit producers from housing egg laying hens in conditions that are not cage free, do not have a certain amount of usable floor space per hen, and do not allow the egg laying hens the ability to exhibit certain natural behaviors such as scratching or dust bathing. (See Utah Code Ann. §§ 4-4-101 - 4-4-108). They were based on the animal husbandry guidelines set forth by the United Egg Producers in 2017. (See Utah Code Ann. § 4-4a-102). The laws will go into effect in 2025.
N. Nevada Assembly Bill 399, 2021
The most recent state to enact legislation to govern the housing of farm animals is Nevada. In 2021, Nevada legislators passed Assembly Bill 399 to regulate the keeping of egg laying hens. The bill provides standards by which egg laying hens must be kept, except for producers with 3,000 or fewer egg laying hens. (See Nev. Rev. Stat. Ann. §§ 583.249 – 583.251). The laws also ban the sale of egg products in Nevada from producers that do not comply with the housing standards. (See Nev. Rev. Stat. Ann. § 583.237). The housing provisions will go into effect in 2024, while the ban on egg products went into effect in 2022.
V. Who is Challenging these Laws?
When beginning to consider the legal challenges to farm animal welfare measures, initiatives, and laws, it is helpful to ask what individuals or groups would be motivated to file these lawsuits in the first place. Due to the time and monetary costs associated with filing a lawsuit, especially one to challenge a state law, the people or groups to challenge animal welfare laws are generally both significantly affected by the laws and have the resources that make a successful legal challenge possible. The laws that have the most significant effects on members of the agricultural industry are those that ban the sale of in-state sale of animal products produced in violation of the anti-confinement laws, such as in California and Massachusetts. As such, these laws are the most commonly challenged by people and organizations that represent or make up the animal agriculture industry. See Emma Horne, Note: Eating High on the Humanely Raised Hog: State Bans on Selling Food Produced Using Cruel Animal Farming Methods do not Violate the Dormant Commerce Clause, 107 Cornell L. Rev. 1137 (2022) available at https://www.cornelllawreview.org/2022/08/14/eating-high-on-the-humanely-raised-hog-state-bans-on-selling-food-produced-using-cruel-animal-farming-methods-do-not-violate-the-dormant-commerce-clause/).
Unsurprisingly, the most common organizations to challenge laws that protect the welfare of poultry and livestock are agricultural interest groups. These are specialized and well-funded organizations that represent members of the agriculture industry, and are typically the best suited for bringing legal challenges on behalf of the members that pay them for representation. Next, legal challenges can also be brought by states on behalf of the members of the agricultural industry within that state’s borders. However, issues with establishing standing can result when states bring lawsuits on behalf of businesses that may file lawsuits themselves. It is also possible for farmers to bring lawsuits on their own behalf, though they generally need financial or legal support from outside organizations or people in order to challenge these laws.
A. Agricultural Interest Groups
Challenges to legislative initiatives and ballot proposals that provide welfare protections to livestock animals are generally initiated by agricultural interest groups. These special interest groups represent many different businesses involved in the packing and production of animals for beef, pork, poultry, dairy, and eggs. Some of the largest organizations of this type include: the North American Meat Institute, the American Farm Bureau Federation, and the American Association of Meat Processors. These organizations lobby on behalf of their members for policies that support their interests and initiate lawsuits to challenge policies that are detrimental to their members.
One of the largest of these organizations is the North American Meat Institute (NAMI). NAMI was formed by the merger between the American Meat Institute and the North American Meat Association. NAMI represents companies that process 95% of beef, pork, and veal, and 70% of turkey products produced in the United States. (See “About NAMI” NAMI, 2023, available at https://www.meatinstitute.org/About_NAMI). NAMI members produce billions of pounds of meat, with the majority of that meat being chicken. (See “Industry at a Glance” NAMI, 2023, available at https://meatinstitute.org/Industry_at_a_Glance). NAMI is headquartered in Washington D.C. and prior to the merger between its predecessors, it was common to see those organizations leading litigation against regulation of livestock treatment.
There are also more specific special interest groups and organizations. For example, there are those that represent members of the egg industry, dairy industry, and industries that produce specific types of meat. Some of these include: the National Pork Producers Council, the National Cattlemen’s Beef Association, the American Egg Board, the United Egg Producers, and the National Milk Producers Federation. These organizations represent members of their specific industries and enact lawsuits against policies that disfavor their interests.
Iowa Pork Producers Association v. Bonta represents one such challenge brought by an agricultural interest group. (See Iowa Pork Producers Ass'n v. Bonta, No. 2:21-cv-09940-CAS (AFMx), 2022 U.S. Dist. LEXIS 61999 (C.D. Cal. Feb. 28, 2022)). The Iowa Pork Producers Association, an organization that represents Iowa-based industrial pig farmers, filed a lawsuit in federal district court alleging that California’s Proposition 12 is unconstitutional. Proposition 12, a ballot measure that California voters passed in 2018, mandates that pregnant pigs must be housed with a certain amount of space in order for products made from such livestock to be sold in California. Proposition 12 also bans the sale of pork meat from producers that do not comply with the housing requirements, including sales from out of state producers.
Plaintiffs represent a large industry in Iowa. According to Plaintiff’s filings, pork sales in Iowa in 2020 totaled $40.8 billion, nearly 150,000 jobs in Iowa are associated with the pork industry, and there are roughly 24 million farmed pigs in Iowa. The district court dismissed the case, holding that plaintiffs failed to raise serious questions as to the merits of the claims. The case is currently being appealed to the Ninth Circuit Court of Appeals.
In another case, North American Meat Institute v. Becerra, the North American Meat Institute (NAMI), brought suit in federal district court to challenge the constitutionality of California’s Proposition 12. (See N. Am. Meat Inst. v. Becerra, 825 F. App'x 518 (9th Cir. 2020)). NAMI represents the companies that produce a large portion of the pork and veal sold in California and across the United States. The district court dismissed the case, and the court of appeals affirmed the judgment of the lower court. NAMI filed a writ of certiorari in an attempt to have the U.S. Supreme Court hear the case, but the writ of certiorari was denied.
There are also instances in which states will challenge animal welfare laws and initiatives on behalf of livestock producers within their boundaries. Understanding the litigation between states over animal welfare policy requires an understanding of the dynamic between states that produce livestock for meat and states with large populations that consume large amounts of meat. The states that produce the most cattle for beef include Texas, Oklahoma, Missouri, Nebraska, and South Dakota. The states that produce the most eggs include Iowa, Ohio, Indiana, Pennsylvania, and Texas. In contrast, the states with the highest populations include California, Texas, Florida, New York, and Pennsylvania. In addition to having large populations, these states also have the largest consumer markets for meat and animal products. States in which livestock production is a large and lucrative industry have an interest in ensuring that these industries are able to sell their products in states with large consumer markets without taking on the additional costs that compliance with animal welfare laws would mandate.
Missouri v. Harris is one such challenge brought by states on behalf of the agricultural industries within their borders. (See Missouri ex rel. Koster v. Harris, 847 F.3d 646 (9th Cir. 2017)). After California passed Proposition 2 to mandate more humane housing standards for egg laying hens, the state then passed Assembly Bill 1437 to extend the applicability of Proposition 2’s standards to out of state egg producers. In response, six states, Missouri, Nebraska, Oklahoma, Alabama, Kentucky, and Iowa, filed suit against the Attorney General of California seeking to block enforcement of the regulations before they went into effect. The states asserted parens patriae standing on behalf of the egg producers within their borders that would face increasing production costs as a result of compliance with the requirements of Proposition 2 and Assembly Bill 1437.
The district court dismissed the case with prejudice, finding that plaintiffs lacked standing. On appeal, the court found that plaintiffs failed to establish an interest apart from those of private egg producers within their borders, and acknowledged that those private egg producers could file a claim themselves. The allegations about the potential economic impact of the regulations were also found to be speculative, since the regulations had not yet gone into effect. Lastly, the court held that the regulations themselves are nondiscriminatory, since they apply to in state egg producers as well. However, because plaintiffs could file an amended complaint after the regulations go into effect that may be sufficient to establish standing, the case was dismissed without prejudice.
In a similar case, Indiana v. Massachusetts, a coalition of multiple states filed a lawsuit against Massachusetts in the U.S. Supreme Court. (See Indiana v. Massachusetts, 139 S. Ct. 859 (2019)). Thirteen states, Indiana, Alabama, Arkansas, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, South Carolina, Texas, Utah, West Virginia, and Wisconsin, filed suit against the state of Massachusetts in response to the animal welfare laws created by Massachusetts Question 3. The states claimed to have direct standing to challenge the Massachusetts law because state agencies and instrumentalities own and operate farms that are subject to the Massachusetts law and wish to continue to sell products to other states, including Massachusetts. The states also claimed parens patriae standing on behalf of farmers and consumers within their borders that would be affected by the Massachusetts law.
The plaintiff states filed suit in the U.S. Supreme Court requesting that the Court declare the Massachusetts law unconstitutional. The Court denied the motion for leave to file a bill of complaint because hearing the case would not be an appropriate use of the Court’s original jurisdiction. The Court stated that, in order to resolve plaintiff’s challenge and address the issues of standing and the merits of the case, the Court would need to resolve complex factual disputes. The Court reasoned that such disputes are better suited to resolution in federal district court, not the U.S. Supreme Court.
Lastly, challenges against farm animal welfare laws can be brought directly by the producers of livestock and livestock products. Lawsuits brought by farmers are less common than those brought by special interest groups that represent members of the agricultural industry. There are several reasons lawsuits are usually brought by such organizations. First, and most importantly, because challenging a law in court represents a large commitment of the plaintiff’s time and finances. These are resources that most actual farmers (those conducting the production of poultry and livestock) do not have as much of relative to other members of the agricultural industry.
Farming is an expensive business to conduct, which has led to an explosion of farm debt that is incredibly difficult to repay under the current corporate farming structure. (See e.g., Semuels, Alana “'They're Trying to Wipe Us Off the Map.' Small American Farmers Are Nearing Extinction”, Time (2019), available at https://time.com/5736789/small-american-farmers-debt-crisis-extinction/). This makes the possibility of bringing a lawsuit more difficult, and also renders the detrimental effects of complying with farm animal welfare laws more dire. For example, one Iowan pig farmer “estimates that to come into compliance with Proposition 12, he would need to invest $3M, and the changes would reduce his space to hold 250 pigs, down from 300.” (See Victor, Seth, The Cost of Compassion: Why State Ballot Initiatives Complicate Farm Animal Welfare and Overlook the True Problems in Modern Agriculture, 18 J. Food L. & Pol'y 43, 72 (2022)).
This investment in the cost of pork production would likely need to be passed onto consumers via higher pork prices, and also shouldered by the buyer with which the pork producer has a contract. This means that it is likely that only farmers with a large enough corporate sponsor will be able to shoulder the cost of compliance with these animal welfare laws, which raises questions over whether these animal welfare laws will lead to further centralization and monopolization of the farming industry by pricing smaller and independent farmers out of the market.
Next, special interest groups generally are more specialized and equipped to handle lawsuits than the agricultural producers are. These organizations typically have in-house counsel with experience handling lawsuits related to the agricultural industry, connections to members of the government that enact legislation related to the agricultural industry, and the financial support to conduct extensive lawsuits. Lastly, because many animal welfare laws only apply to large scale agricultural producers, and such producers are generally members of the special interest groups. However, there are a few instances where farmers will have the financial support of an outside organization that enables them to file lawsuits on their own behalf.
Cramer v. Harris is one such challenge brought directly by a farmer who was affected by a state law to regulate the welfare of farm animals. (See Cramer v. Harris, 591 F. App'x 634 (9th Cir. 2015)). Plaintiff William Cramer filed this lawsuit in federal district court to challenge the constitutionality of California’s Proposition 2, which requires California egg farmers to house egg laying hens in less restrictive enclosures. Here, plaintiff was an egg farmer based in Riverside County whose family had been farming eggs for several generations, and who believed the enclosures for his chickens were spacious enough to comply with Proposition 2.
In another lawsuit, Dunn v. Attorney General, plaintiff and farmer James Dunn brought suit to challenge the attorney general’s certification of Massachusetts Question 3. (See Dunn v. Attorney General, 474 Mass. 675, 54 N.E.3d 1 (2016)). Dunn was joined by anti-poverty activist Diane Sullivan. Both plaintiffs received funding from Protect the Harvest, a nonprofit that opposes farming restrictions, to pursue the lawsuit. Plaintiffs argued that Question 3’s ban on the production and the sale of products made from restrictively confined animals were unrelated questions. Plaintiffs also argued that the bans on confinement of egg lying hens, pregnant pigs, and calves for veal were separate issues on which voters may have varying opinions, so they should be voted on separately. They also argued that the ballot measure’s statement of purpose improperly contained an “argumentative” policy statement that taints the petition and unfairly sways public opinion. The Massachusetts Supreme Judicial Court held that the ballot measure was compliant the state’s requirements and that the attorney general properly certified Question 3 for submission to the public.
VI. What are the Legal Challenges?
While legal challenges to farm animal protection proposals can come from a variety of members of the agricultural industry, the causes of action brought to challenge animal welfare laws are generally rooted in the same constitutional bases. These constitutional challenges have been most commonly brought against citizen-initiated ballot measures that regulate the importation of animal products from producers that do not comply with the standards for housing poultry and livestock. These include California’s Propositions 2 and 12 as well as Massachusetts’ Question 3. Opponents to these measures argue that they improperly regulate commerce occurring outside the boundaries of both California and Massachusetts. These opponents, generally the aforementioned members of the agricultural industry, are also the groups that will bear the cost of making the changes to their facilities in order to comply with the new laws. These producers argue that these regulations, such as those created by California’s Proposition 2, could increase production costs as much as 76%. (See “Economic Impact on California of the Treatment of Farm Animals Act 7” Promar Int’l, 2008, available at https://igslibrary.berkeley.edu/library/elections/proposition-2). Accordingly, the groups interested in maintaining the current farming practices bring the following legal challenges to these regulations in order to avoid paying the costs associated with complying with these regulations.
A. Due Process
There are two types of due process challenges that can be brought under the Fifth and Fourteenth Amendments to the U.S. Constitution: substantive and procedural due process. Procedural due process refers to the requirement that the government follow certain procedural requirements before depriving a person of life, liberty, or property. It also requires laws and adjudicative processes to be fair and impartial, such as requiring that notice be provided if a person has to appear in court.
There are two different ways that laws themselves can be struck down as unconstitutional under a procedural due process argument: that the law is unconstitutionally vague or unconstitutionally overbroad. Statutes are considered unconstitutionally vague if they are not precise enough to give fair warning to potential actors that the contemplated conduct is criminal, or if they do not provide adequate standards to enforcement agencies, factfinders, and reviewing courts, as to what conduct is regulated and how it is regulated. Overbreadth refers to a law regulating far more conduct than it was originally intended to, or reaching beyond the subject matter of what it was intended to regulate. (See Fallon, Richard H., Making Sense of Overbreadth, 100 Yale L.J. 853, 1991, available at https://www.jstor.org/stable/796710).
One such vagueness argument was brought in Cramer v. Harris, in which an egg farmer based in California challenged California’s Proposition 2. (See Cramer v. Harris, 591 F. App'x 634 (9th Cir. 2015)). Plaintiff argued that, because Proposition 2 did not specify a minimum cage size for egg laying hens, a reasonable person could not discern whether the enclosures being used were compliant with Proposition 2. The district court dismissed the lawsuit. On appeal, the court reasoned 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. Accordingly, the court of appeals affirmed the judgment of the lower court and dismissed the lawsuit.
B. Dormant Commerce Clause
By far the most common constitutional challenge are those arguing that farm animal welfare laws violate the dormant commerce clause. This grants Congress the power to regulate commerce among the several states, and has been interpreted by the U.S. Supreme Court to implicitly preempt state laws that improperly regulate interstate commerce. Such improper regulation of interstate commerce includes states passing legislation that discriminates against interstate commerce, or states passing legislation that excessively burdens interstate commerce. This is especially common in litigation against states, such as California and Massachusetts, that have enacted legislation to stop the importation of products made from livestock that are confined in housing that are not compliant with their minimum space requirements. (See generally, N. Am. Meat Inst. v. Becerra, 825 F. App'x 518 (9th Cir. 2020)).
Under the dormant commerce clause analysis, state regulations are analyzed for both a discriminatory purpose and discriminatory effect. The party challenging the law bears the burden of proof to show that the statute has a discriminatory purpose or effect. A discriminatory purpose would be a law that is expressly enacted to favor in state economic producers at the expense of out of state economic competition. The most offensive and suspect of these laws are those motivated by in state economic protectionism, which are laws that are enacted to favor and protect in state economic interests at the expense of out of state competitors. Such laws are subject to a “virtually per se rule of invalidity.” (Philadelphia v. New Jersey, 437 U.S. 617 (1978)). Accordingly, once a discriminatory purpose or effect is shown, that statute is subject to strict scrutiny. Under such scrutiny, the law would only by upheld by the state showing that they have no other less discriminatory means to achieve a legitimate local interest. An example of a successful defense to such a challenge is Maine v. Taylor, 477 U.S. 131 (1986), in which the state of Maine successfully argued that the law forbidding the importation of out of state bait fish served the legitimate local purpose of protecting the local ecology, and could not be served by less discriminatory means.
2. Excessively Burdensome
In addition to having a discriminatory purpose or effect, statutes must not place an excessive burden or have a discriminatory effect on interstate commerce. A discriminatory effect is shown when the law has the effect of favoring in state economic interest over out of state economic interests. If a challenger fails to show a discriminatory purpose, that party then has the burden of proof to show that the burden placed on interstate commerce is excessive to the state benefits. There are instances where a law may not be outright or intentionally discriminatory against out of state competitors, but still has some negative impact on interstate commerce. The general rule to determine whether such statutes are valid comes from Pike v. Bruce Church, and is known as the Pike balancing test. The test states that "[w]here the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits." (Pike v. Bruce Church, 397 U.S. 137, 142 (1970)).
3. Extraterritoriality Doctrine
The third dormant commerce clause argument is to invoke the extraterritoriality doctrine, which limits a state’s power to legislate and regulate commerce beyond its physical borders. The extraterritoriality doctrine follows from a collection of cases from the U.S. Supreme Court in which state laws were invalidated under the justification that the laws represented attempts by the states to improperly regulate conduct beyond their borders. These cases include Healy v. Beer Inst., 491 U.S. 324 (1989), Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986), Edgar v. Mite Corp., 457 U.S. 624 (1982), and Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511 (1935). Taken as a whole, these cases set forth a precedent that invalidates state laws that project legislation too far into other states or purposefully discriminate against out of state economic interests. For example, in Healy v. Beer Institute, the Supreme Court held that a Connecticut statute that requires out of state beer shippers to affirm that the posted prices for beer sold to Connecticut sellers are no higher than the beer being sold to sellers in other states (known as a price affirmation statute) violates the dormant commerce clause. (Healy v. Beer Inst., 491 U.S. 324 (1989)).
Another example of the case law that created the extraterritoriality doctrine is Baldwin v. G.A.F. Seelig, Inc. Here, the Supreme Court heard a challenge to a New York law that prohibited the sale of milk imported into New York from another state unless the price paid to the out of state dairy producer reached the same minimum price that was required to be paid to New York dairy producers (known as a price control statute). The purpose of such a law was to ensure that out of state dairy producers cannot sell their products in New York more cheaply than New York dairy producers and run the New York dairy producers out of the market. The Court held that such a statute violated the dormant commerce clause, as New York was attempting to regulate economic activity well outside of the state’s borders. (Baldwin v. G. A. F. Seelig, Inc., 294 U.S. 511 (1935)).
A case that has previously been discussed, North American Meat Institute v. Becerra, represents a good example of a dormant commerce clause challenge to a farm animal welfare law. (N. Am. Meat Inst. v. Becerra, 825 F. App'x 518 (9th Cir. 2020)). Plaintiff, the North American Meat Institute (NAMI), brought suit in federal district court to challenge the constitutionality of California’s Proposition 12 (which forbids the sale of pork meat and eggs in California from producers that do not comply with its animal housing standards). NAMI alleged that Proposition 12 violated the dormant commerce clause by improperly regulating economic activity outside of California’s boundaries and substantially burdening interstate commerce. Plaintiffs acknowledged that Proposition 12 was not facially discriminatory, and that Proposition 12 did not have a discriminatory purpose, because there was a lack of evidence that the state had protectionist intent when enacting Proposition 12. The district court dismissed the case, and plaintiffs appealed to the Ninth Circuit.
The court found that, because Proposition 12 is not a price control or price affirmation statute, it does not improperly regulate extraterritorial commercial conduct. The court also held that Proposition 12 does not create a substantial burden on interstate commerce because the law bans the sale of animal products produced by a specific method, instead of by placing a burden on producers based on their geographic location. The court also found that Proposition 12 did not substantially burden interstate commerce because it did not impact an industry that is inherently national or requires a uniform system of regulation. The court of appeals affirmed the judgment of the lower court and upheld the constitutionality of Proposition 12. Petitioners filed a writ of certiorari, but the U.S. Supreme Court declined to hear the case.
Another dormant commerce clause challenge, Iowa Pork Producers Association v. Bonta, followed a similar route as the case previously discussed. (Iowa Pork Producers Ass'n v. Bonta, No. 2:21-cv-09940-CAS (AFMx), 2022 U.S. Dist. LEXIS 61999 (C.D. Cal. Feb. 28, 2022)). The Iowa Pork Producers Association filed this lawsuit in federal district court alleging that California’s Proposition 12 is unconstitutional on several grounds, including violation of the dormant commerce clause. Plaintiff contended that Proposition 12 violates the dormant commerce clause in that it discriminates against interstate commerce, directly regulates extraterritorial conduct, and that even if it regulates evenhandedly to effectuate a legitimate local public interest, the burden imposed on commerce is clearly excessive in relation to the putative local benefits.
The court looked to the purpose of Proposition 12, which is intended to prevent animal cruelty by phasing out extreme methods of farm animal confinement, which also threaten the health and safety of California consumers, and increase the risk of foodborne illness and associated negative fiscal impacts on the state of California. The court found that this purpose is not discriminatory, and that there is no hint of economic protectionism. The court also found that there is no discriminatory effect, as the statute treats all producers the same by imposing the same requirements. The court also denied the extraterritoriality claim because Proposition 12 is not a price control or price affirmation statute and, therefore, does not directly regulate extraterritorial economic conduct. (Iowa Pork Producers Ass'n v. Bonta, No. 2:21-cv-09940-CAS (AFMx), 2022 U.S. Dist. LEXIS 61999 (C.D. Cal. Feb. 28, 2022)).
The court also found that the burden imposed on commerce was not clearly excessive in relation to the putative local benefits. The court’s precedent states that even if producers will need to adopt a more costly method of production to comply with Proposition 12, such increased costs do not constitute a substantial burden on interstate commerce, and higher costs to consumers do not qualify as a substantial burden on interstate commerce. The district court dismissed the case, holding that plaintiffs failed to raise serious questions as to the merits of the claims. The case is currently being appealed to the Ninth Circuit.
In another dormant commerce clause challenge, Indiana v. Massachusetts, a coalition of 13 states filed a lawsuit against Massachusetts to challenge the animal welfare laws created by Massachusetts’ Question 3 (which renders the sale of pork, veal, and eggs unlawful in Massachusetts from producers that do not comply with its animal housing standards). (Indiana v. Massachusetts, 139 S. Ct. 859 (2019)). The states argued that the laws created by Question 3 are unconstitutional, because the laws violate the dormant commerce clause. Plaintiffs sought declaratory and injunctive relief from the U.S. Supreme Court.
Plaintiffs contended that the laws created by Question 3 violate the dormant commerce clause by improperly regulating extraterritorial economic conduct. Under the Massachusetts laws, plaintiffs argued that farmers within their state borders must now submit to Massachusetts’s laws, as well as those of any state that adopts similar regulations, in order to have access to those states’ markets and sell their products. Plaintiffs argued that, because the supply chain for animal products crosses multiple state borders, the law will financially affect residents within their state boundaries by increasing production costs for animal products. Plaintiff argued that this constitutes an improper regulation of extraterritorial economic conduct. Plaintiffs further argued that, because Massachusetts imports a large percentage (as much as 99%) of the eggs it consumes, the burdens of many of these regulations will largely be borne by out of state producers. (Indiana v. Massachusetts, 139 S. Ct. 859 (2019)). However, the U.S. Supreme Court held that resolving this case would require analyzing the economic impact of a host of different factors. The Court reasoned that these questions need to be resolved after development of a factual record in a case in federal district court, and declined to hear the case and issue a judgment.
VII. National Pork Producers Council v. Ross
This brings us to a recent U.S. Supreme Court ruling on a case involving a dormant commerce clause challenge to a California farm animal welfare law created via a citizen-initiated ballot measure. This case, National Pork Producers Council v. Ross, is significant because it is the first dormant commerce challenge to a farm animal welfare law to be decided by the U.S. Supreme Court. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)). Accordingly, the decision represents a significant step for both animal welfare laws and the ability of states to regulate the sale of goods within their borders. This section will examine some of the background information associated with the case. After, this section will look to the decision of the U.S. Supreme Court and examine the rationale used when ruling on the issues.
As discussed previously, California ballot measure Proposition 12 was passed by Californian voters. Proposition 12 forbids the sale of pork meat in California that comes from pigs confined in a cruel manner. This includes confinement that prevents a pig from lying down, standing up, fully extending its limbs, or turning around freely. Proponents claimed the law would promote animal welfare and consumer health. Opponents claimed that preexisting farming practices protected animal welfare by preventing pig on pig aggression and consumer health by preventing contamination better than the requirements of Proposition 12 would.
After Proposition 12 was adopted, the National Pork Producers Council and American Farm Bureau Federation filed this lawsuit on behalf of their member organizations that raise and process pigs. Petitioners alleged that Proposition 12 violates the U.S. Constitution by impermissibly burdening interstate commerce, as it raises the cost of production of pork for both California and out of state pork producers. The petitioners also alleged that, because California imports almost all of the pork it consumes, the costs of compliance with Proposition 12 will be borne mostly by out of state pork producers. The district court and Ninth Circuit held that the petitioners failed to state a claim as a matter of law and dismissed the case. The U.S. Supreme Court granted certiorari to hear the case. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)).
In a 5-4 ruling, the U.S. Supreme Court affirmed the judgment of the district court and Ninth Circuit and dismissed the case. Justice Gorsuch wrote the majority opinion and was joined by Justices Thomas, Sotomayor, Kagan, and Barrett. First, the court has held that state laws offend the dormant commerce clause through burdens on the industry and business of other states. However, absent purposeful discrimination, a state may exclude or prohibit the sale of articles that, within its judgment, are prejudicial to the interests of the citizens. This does not include regulatory measures designed to benefit in state economic interests by burdening out of state competitors. Here, petitioners conceded that Proposition 12 does not implicate the antidiscrimination principle, because it imposes the same regulatory burdens on all pork producers regardless of their location. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)).
Instead, petitioners claimed the extraterritoriality doctrine suggests that there is an implicit rule forbidding enforcement of state laws that have the practical effect of controlling commerce outside of the state, even when those laws do not purposefully discriminate against out of state interests. Here, petitioners alleged that Proposition 12 violates the extraterritoriality doctrine because it will impose substantial new costs on out of state pork producers that want to sell their products in California. Petitioners pointed to cases in which the court struck down laws that economically discriminated against out of state economic interests, such as a law that barred out of state dairy farmers from selling their milk in the state for less than the minimum price state law set in order to protect in state dairy producers. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)).
However, the court did not agree with this argument, instead finding that the cases relied upon all have the same concern with preventing purposeful discrimination against out of state economic interests. The court examines these other cases and found instances of in state economic protection, such as by states creating price affirmation statutes in order to discourage consumers from crossing state lines to make their purchases from out of state vendors. The court found that such discrimination is absent here with Proposition 12. The court reasoned that, were it to agree with petitioner’s extraterritorial effects argument, many state laws would have the practical effect of controlling extraterritorial behavior. This would include state income tax laws, environmental laws, and other laws that have the incidental effect of controlling where businesses choose to manufacture or sell their goods. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)).
Petitioners then pointed to Pike, which sets forth the requirement that a court at least assess the burden imposed on interstate commerce by a state law and prevent its enforcement if those burdens are clearly excessive in relation to the putative local benefits. Petitioners set forth a number of facts showing that 28% of the industry had converted to some form of group housing for pregnant pigs, that some farmers who already raise pigs like this will have to alter their farming because of Proposition 12, and that the vertical integration of the pork industry would require significant capital reinvesting to comply with Proposition 12. Petitioners estimated that production costs would need to increase by 9.2% at the farm level, which would fall on California and out of state producers alike. However, because California imports much of its pork, petitioners argued that the cost of compliance will mostly fall on out of state producers. Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023).
The court then considered petitioners argument to use the Pike balancing test. For a law to be constitutional under Pike, the burdens a state or local law imposes on out-of-state commerce must not be clearly excessive in comparison to the local benefits. Here, the court held that petitioners do not qualify for review under the Pike balancing test, because they failed to allege a substantial burden on interstate commerce. However, when examining the use of Pike to review the interests at stake in this case, the justices differed in their approach to whether the Pike balancing test may be used in future dormant commerce clause challenges like the present case. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023)).
The court considered the economic costs petitioners would face balanced against the benefits that Californian voters cited, which include consumer health and safety. Some justices reasoned that these interests, being noneconomic in nature, were not suited for balancing against economic interests using the Pike balancing test. Justice Gorsuch reasoned that balancing economic interests against noneconomic interests was “insusceptible to resolution by reference to any juridical principle.” (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1159 (2023)). Justice Barrett, in a concurring opinion, agreed that these interests could not be weighed against each other “without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians.” (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1167 (2023)). However, Justices Sotomayor and Kagan argued that courts may balance economic and noneconomic interests under Pike, but that petitioners here did not qualify for review under Pike without first alleging a substantial burden on interstate commerce. (Nat'l Pork Producers Council v. Ross, 143 S. Ct. 1142, 1168 (2023)).
The legal landscape, post National Pork Producers Council v. Ross, seems to allow states more freedom to enact animal welfare protections that will ripple across the poultry and livestock industries. A number of states have been introducing bills in order to effectuate similar changes to the treatment of farm animals within their borders and beyond. (See e.g., A.B. 1970, 220th Leg., 2022 Sess. (N.J. 2022)) Allowing states to pass such legislation, as has been the case with product labeling or state safety standards, will doubtlessly impact out of state businesses and have an effect on interstate commerce. In order to participate in economic activity in states such as California and access these large consumer markets, producers will have to bear the costs of compliance with the poultry and livestock housing standards set by these animal welfare laws.
Such laws could become more common over time, as there seems to be a trend among the general public towards recognizing that factory farming of livestock and poultry can include inhumane treatment of these animals. For example, a March 2023 study conducted by the ASPCA of 1,000 Americans showed that the majority (79%) were concerned about the impact of industrial animal agriculture on farm animal welfare. Of those surveyed, a majority (74%) support government intervention and further regulation of the animal agriculture industry, and a majority (89%) are in favor of livestock and poultry producers transitioning towards more humane farming systems. These positive responses trending towards concern for farm animal welfare represents a growth from when the previous survey was conducted in 2020. (See “2023 Industrial Animal Agriculture Opinion Survey” ASPCA, 2023), available at https://www.aspca.org/protecting-farm-animals/aspca-surveys).
This trend towards concern for farm animal welfare among the American public can lead to legislative change in multiple ways. Citizens can utilize citizen-initiated ballot proposals in states where that is an option, in order to garner support for legislative changes and allow the public to vote for the animal welfare protections they are seemingly in favor of. Citizens can also add pressure to elected officials and motivate them to campaign for support among other elected officials to enact legislative initiatives to afford welfare protections to farm animals. However, as we are seeing with legislation in states such as California and Massachusetts, changes in the livestock and poultry industries can also come from outside of the states where those industries are primarily located. Phasing out inhumane means of farm animal confinement, such as battery cages and gestation crates, will likely take time and substantial pressure from outside forces on livestock and poultry producers. However, post National Pork Producers Council v. Ross, it appears those changes will be inevitable.