Sometimes lawyers talk about being able to use a knothole in the law that allows them to pull through much more of their own arguments than one might ordinarily expect. California has managed to rely on just such a “knothole,” with requirements for housing chickens and now pigs that must be adhered to for access to the California market for animals not raised in the state.

That’s because the North American Meat Institute (NAMI)  lost its challenge to the constitutionally of California’s Proposition 12. The 9th Circuit Court of Appeals upheld a California district court ruling on the matter. Only a legal challenge in another California court by the National Pork Producers Council and the American Farm Bureau Federation stand in the way of the animal housing restrictions.

“The district court did not abuse its discretion in holding that NAMI was unlikely to succeed on the merits of its dormant Commerce Clause claim. NAMI acknowledges that Proposition 12 is not facially discriminatory,” the 9th Circuit Court of Appeals ruling says. “The district court did not abuse its discretion in concluding that Proposition 12 does not have a discriminatory purpose given the lack of evidence that the state had a protectionist intent.

“Given the inconsistencies in dormant Commerce Clause jurisprudence, the district court did not abuse its discretion . . . to hold that Proposition 12 does not have a discriminatory effect because it treats in-state meat producers the same as out-of-state meat producers.”

Proposition 12 prohibits the sale of eggs, pork, and veal from animals raised in cage confinement systems — even if the producers’ operations are located in other states. NAMI opposes the law saying it will increase costs for producers and consumers.

NAMI argued Proposition 12 violates the Commerce Clause to the U.S. Constitution, which prevents trade barriers between and among the states. The 9th Circuit  found “inconsistencies in dormant Commerce Clause jurisprudence” mean it does not apply and ruled Prop 12 “does not have a discriminatory effect because it treats in-state meat producers the same as out-of-state meat producers.”

When the court challenge was filed in October 2019, Julie Anna Potts, NAMI’s president and chief executive office, said if Prop 12 were allowed to stand it would mean California would be dictating farming practices across the nation, causing turmoil in the supply chain.

California’s largely urban voters passed the Prop 12 ballot measure in November 2018. It imposes space requirements regarding breeding pigs and veal calves. California isn’t really big in pigs or veal calves, but requires that sales of either involve only animals raised under the dictates.

As a result, Prop 12 sets confinement standards for how pigs and veal calves are raised anywhere in the United States or any foreign country.

NAMI is considering its legal options, which would include asking for another review. “California should not be able to dictate farming practices across the nation.” NAMI’s Sarah Little said.

The Humane Society of the United States, which has defended the statute on appeal, is pleased with its dominance over what it calls “factory farming methods.”

In the other lawsuit, brought by the pork producer and Farm Bureau, the schedule for filing briefs continues through Nov. 13 this year. California does not raise much pork, but the state has a taste for bacon, which means the future could be interesting.

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