Pigs en route to slaughter in California. | Bobby Sud/We Animals Media
The Supreme Court sided with pigs. Will California?
Last month, in a welcome surprise to animal welfare advocates, the US Supreme Court sided with pigs over the pork industry.
In a 5-4 decision, the Court upheld Proposition 12, a California law that partially bans the sale of pork from farms that keep pregnant breeding pigs, known as sows, in tiny enclosures called gestation crates. They’re akin to forcing a human to live their entire life in a bathtub. (Other parts of the law, which require eggs and veal to come from cage-free animals, took effect last year and were not a part of the Supreme Court case.)
While it was a victory for those who argue against caging intelligent, social animals like pigs for months on end, animal welfare wasn’t the main point for the justices. Rather, the case hinged on the ability of US states to set their own standards for how goods imported from other states are produced. California imports nearly all of its pork from other states, and the National Pork Producers Council, an industry trade group that brought the lawsuit, argued that the state’s heightened standards were imposing an unfair burden on other states, particularly top pork producers like Iowa and Minnesota. The industry estimated it would have to spend $294 million to $348 million to convert enough barns to crate-free.
Jo-Anne McArthur/We Animals Media
Breeding pigs at a farm in Canada.
Given the conservative, business-friendly majority on the Court, and the fact that 26 mostly red states and the Biden administration sided with the pork producers, the mother pigs’ odds didn’t look good. Animal welfare advocates I spoke to before the ruling assumed it likely wouldn’t go their way, which could have posed an existential threat to animal welfare laws in other states. (Disclosure: The effort to pass Proposition 12 was led by the Humane Society of the United States, where I worked from 2012 to 2017. I worked briefly on Prop 12 in 2018 while at a different animal welfare organization.)
To the surprise of both sides, that didn’t happen. But now that Prop 12 has been upheld, there’s another question: How will America’s strongest farm animal welfare law actually be enforced?
A law is only good as its enforcement
The animal welfare movement has poured millions of dollars into banning cages and crates for farmed animals, a strategy that has proven surprisingly successful. Hundreds of food corporations have pledged to source exclusively cage-free eggs and/or pork, and over a dozen states have passed what are called “production” bans, which prohibit in-state meat or egg producers from using cages and crates for one or more farmed animal species. Most of these states aren’t themselves agricultural heavyweights — they import most of their animal products from other states. So as a way of affecting production elsewhere, eight states have passed “sales” bans, like California’s Prop 12, which go much further by banning the sale of eggs, pork, and/or veal from caged animals raised anywhere in the world.
All told, California’s Prop 12 should get around 40 million egg-laying hens, tens of thousands of veal calves, and half a million sows out of cages and crates each year. Pigs will go from having around 14 square feet of space to 24 square feet, while hens will go from around 75 square inches to double the space or more. Such laws don’t create humane conditions, as the animals are still in factory farms, but it’s progress nonetheless.
However, Prop 12 does have important carveouts for industry.
For example, mother pigs can still be confined in crates for five days prior to the expected date of birth, and for several weeks after while they nurse piglets. Importantly, pork that goes into processed or precooked foods, like hot dogs, soups, and frozen pizzas — which accounts for 42 percent of California’s pork consumption — is also exempt. (The law only covers whole, uncooked pork cuts like bacon or ribs.)
But for the law to cover the tens of millions of animals it’s supposed to protect each year, it’ll need to be strongly enforced, which is far from a given with animal protection regulations.
“These laws are only as good as the enforcement,” said Bryan Pease, a longtime animal lawyer in California. “Unfortunately, the animal rights movement has a bit of a track record of passing great laws, claiming victory, and then just moving on to the next thing without actually ensuring enforcement.” Pease pointed to California animal welfare laws that had been violated and/or weakly enforced, like laws to prohibit the sale of foie gras, fur, and dogs from puppy mills (as well as cats and rabbits). Pease has sued two San Diego restaurants for allegedly selling foie gras and a store in Orange County for allegedly selling fur, and accused a store in Escondido of selling dogs from puppy mills.
As of 2019, there was only evidence of enforcement for one of 16 state cage production bans, according to the Washington, DC-based nonprofit Animal Welfare Institute (AWI). That one instance happened to be in Southern California, where an egg farm was charged in 2017 for not providing hens adequate space.
But there’s more evidence that cage-free sales bans have been enforced. Between 2015 and 2019, according to records obtained by AWI, California audited 15 noncompliant egg farms, five of which were out of state. Oregon investigated complaints of a noncompliant egg producer and a noncompliant egg wholesaler, both from out of state. Earlier this year, when Arizona’s cage-free egg law took effect, the state issued hold orders on eggs from out-of-state producers 32 times from entering the food supply until they could verify production methods.
AP/Rich Pedroncelli
Caged egg-laying hens at a farm in California.
Scant evidence of enforcement doesn’t mean there’s mass fraud. It just means enforcing animal welfare laws doesn’t appear to be a priority for states — and the production ban laws don’t even contain provisions that give states authority to enforce them, said Dena Jones of AWI.
Absent strict enforcement, compliance shouldn’t be assumed: Meat producers have been repeatedly accused of price fixing, water pollution, labor violations, and cruelty to animals.
Jon Lovvorn, chief counsel for animal protection litigation at the Humane Society of the United States, said that “the interlocking nature of the contractual relationships in this industry” — contracts between meat and egg producers and restaurant food distributors and grocers — “make compliance [with Prop 12] more likely.”
Prop 12 stipulates that grocers and restaurants aren’t liable for selling noncompliant products so long as they had received written certification of compliance from producers. As a result, meat and egg producers are incentivized to follow the law lest they risk not just the chance of monetary penalties and jail time, but also getting sued by the retailers for selling them noncompliant goods.
Lovvorn said that while he expects enforcement to be straightforward, it “doesn’t mean there won’t be problems, and it doesn’t mean there won’t be people cheating the system. … I think that’s going to exist in any enforcement system, but I don’t think this is going to be a huge problem.”
The industries that have allegedly flouted some of California’s animal welfare laws, like those that prohibit the sale of foie gras, fur, and dogs, are fragmented and informal. The egg and pork industries, by contrast, are highly consolidated, which could lead to higher rates of compliance compared to other animal industries, Pease believes.
“As long as you gain compliance from [the major producers], then you’re pretty much looking at full compliance, and that’s good,” he said. Many of the nation’s largest pork producers had publicly stated that they’ll comply with Prop 12 before the Supreme Court’s decision, including Tyson Foods, Smithfield Foods, Seaboard Foods, Hormel, and Clemens Food Group.
There’s ample evidence the egg and pork industries are complying with cage-free laws and keeping more of their animals in cage-free barns. In 2015, when the nation’s first cage-free sales law went into effect, just 6 percent of US hens were cage-free; today it’s close to 40 percent. That number will shoot up in 2024 and 2025 as more state laws come into effect and food corporations fulfill their cage-free commitments. A few years ago, the pork industry said over a quarter of its sows were crate-free for around 70 percent of their four-month pregnancies, up from 10 percent in 2011.
How Prop 12 will be enforced
Despite the minimal evidence of California enforcing its cage-free laws, Jones of AWI said the state is gearing up to ensure compliance with Prop 12: “California appears to have done the most in terms of setting up enforcement programs, so we’ll have to watch down the road.”
The California Department of Food and Agriculture (CDFA) will require pork, veal, and egg producers to work with one of its five accredited third-party certifiers, or with the state itself, to conduct annual audits on their farms. But the enforcement rollout has been, and will continue to be for the months ahead, a bit messy.
First, let’s look at the sale of eggs and veal. These components of the law went into effect at the start of 2022, but the CDFA didn’t finalize regulations until September 2022. Since the egg and veal components took effect, producers have been allowed to “self-certify” — essentially attesting to grocers and food distributors that they are in compliance, with the understanding that they are subject to inspection. Egg, veal, and pork producers will all be allowed to self-certify until January 1, 2024, when they’ll need to be certified by a third-party auditor or the CDFA.
The pork component of Prop 12, which was delayed due to the Supreme Court case, is now slated to fully take effect on July 1, 2023. The six-month gap that allows producers to self-certify could mean some of the pork sold in California is noncompliant.
“During the transition period, it may be difficult to determine if whole pork is from breeding sows raised in compliance with Prop 12,” said CDFA spokesperson Jay Van Rein.
Despite the uncertainty, pork producers are pushing to convert their facilities and begin the auditing process. “Since the Supreme Court made their ruling, it’s gotten very busy here,” said Matt Jones, vice president of operations at the accredited certifier Validus, speaking about the flurry of interest from producers looking to understand certification.
Grocery stores and other food distributors must also certify that eggs, veal, and pork they sell is compliant, which entails demonstrating through an audit trail that the product came from a certified producer.
The political and corporate fallout of the Supreme Court’s decision
While the political fight over cages has failed in the courts, members of Congress from states that lead in pork production are looking to overturn Prop 12 on Capitol Hill. Rep. Ashley Hinson (R-IA) is expected to soon reintroduce a bill that would prevent state and local governments from setting standards for how agricultural products imported from other states are produced, which she said would “circumvent what Prop 12 does.” The bill is a repeat of past efforts by former Iowa Rep. Steve King to do the same.
On the other end of the political spectrum, progressive Rep. Veronica Escobar (D-TX) last year introduced the PIGS Act to ban gestation crates nationwide.
However, animal advocates are more likely to find success at the state level, where the vast majority of legal progress for farmed animals has been made. There are legislative efforts underway to ban gestation crates in Oklahoma, home to around 8 percent of US sows, and allocate funds to help pork producers transition to crate-free systems.
The Prop 12 decision could also spur food corporations to eliminate gestation crates from their supply chains, as it’ll expand the crate-free pork supply. In the early 2010s, nearly 60 fast food chains and grocers, including McDonald’s and Kroger, pledged to source crate-free pork, but most still haven’t fulfilled their commitments.
For decades, there’s been a race to the bottom on animal welfare on America’s farms, where over 200 million animals are stuffed into cages and crates. It’s torture, but it’s perfectly legal torture in most states, and at least for now, it’s still the dominant method of production for pork and eggs.
It should be expected that even incremental laws like Prop 12 will be challenged in the courts by industry, as they’re fundamental to our system of cheap meat. When a law survives, as Proposition 12 has, it shouldn’t come as a surprise if some producers violate it, or if enforcement is spotty. These aren’t reasons to ditch politics as a means of social change for the billions of animals factory-farmed in the US annually, but they should put renewed focus on not just passing laws and improving corporate food policies, but also ensuring they work as intended.