Not too many animal welfare issues make it to the Supreme Court, but that is where we will find California’s Proposition 12 today. Proposition 12 is in the spotlight more because of its implications for interstate commerce than for what it means for animal welfare per se, but it’s a big deal on both fronts.

To recap, California voters approved, by about a 60/40 majority, new minimum standards for the treatment of pigs raised for food. If your pens don’t meet a new minimum size (24 square feet, which some seem to feel is extravagantly generous), you can’t sell your pork in California.

The reason this has become a hot issue is because these rules would apply to all pork, not just from pigs raised in California. You could interpret this (as some do) as California legislating the treatment of pigs in other states, and would be violation of the Commerce Clause which reserves the regulation of interstate commerce to the federal government.

But is California —which actually produces almost no pork— actually legislating the treatment of pigs in other states? That would seem to be a difficult argument to make. After all, farmers are not required to sell their products in California, it’s simply a market that can be open to them if they meet certain minimum standards.

The implications of a defeat of Proposition 12 would be tremendous. It would open the door to a kind of rent seeking to industry. In this case, the pork industry could become concentrated in the state that allows the lest expensive means of production, which would probably be the least humane at the same time. The state that allows the smallest pens, cheapest food, fewest inspections, and least regulation would “win” the business, and pork would be shipped out to all the other states for consumption. Of course, this outcome would not by any means be limited to pork, but to every imaginable product. 

As for who is choosing sides, for the most part the liberal and blue states support California as a matter of state autonomy, while the conservative, red states oppose it as a matter of state sovereignty. Remember that this is America, where everyone has their own definition of “freedom”. Perhaps surprisingly (or maybe not), the Biden administration backs industry on this one, I suppose because pigs don’t vote.

More on the situation at the Supreme Court, and Public Citizen’s take.