The United States Supreme Court will hear an appeal based on California Proposition #12 at some time in Ocober.  Lower courts have ruled that Proposition #12 is constitutional, despite the fact that there is concern that it conflicts with the Dormant Commerce Clause. Proposition #12 is opposed by twenty state governments and the majority of associations representing agriculture.

Senators Diane Feinstein (D-CA); Alex Padilla (D-CA) and Corey Booker (D-NJ) with 13 other members of the Senate requested that Solicitor General Elizabeth Prelogar support California Proposition #12 by submitting a brief and presenting oral testimony. Other senators supporting the request for the Solicitor General to advance the constitutionality of Proposition #12 represent states that have enacted laws paralleling California statutes, including Michigan, Illinois, and New England states.

The senators urged the Solicitor General in their communication “to support California Proposition #12 that is intended to prevent animal cruelty, protect the health and safety of California consumers and decrease the risk of foodborne illness”.  The letter continued, “We believe that the previous Administration’s position on Proposition #12 was based on a misconception of the law.” In the event the Solicitor General will present  the Government case supporting Proposition #12.

The Supreme Court will not consider the justification for the ballot initiative and should exclude any considerations of welfare or foodborne disease.  Their consideration will be confined to constitutional issues.  The overriding question is whether California can impose state standards of management on producers in other states thereby impeding interstate commerce.

The claims regarding stocking density for poultry, breeding sows and veal calves have no direct or scientifically supportable association with foodborne infection. The Proposition and subsequent legislation can be regarded as a contrived justification to protect producers in California from competition. California consumes 13 percent of the nation’s domestic pork but houses 0.2 percent of breeding sows, suggesting an extremely one-sided approach to imposing welfare standards.

 Proponents of Proposition #12 and the resulting restrictive legislation are relying on the original invalid contention by the HSUS, advanced to sway voters in 2008 that confined herds or flocks are more liable to be infected with foodborne pathogens than animals allowed space requirements consistent with Propositions #2 and #12.

The restrictions imposed by Proposition #12 when enacted will obviously impact the hog industry, since the practice of confining sows to relatively small crates, hardly larger than the animal, during gestation will require investment in alternative facilities to allow 24 square feet of floor area. At the present time, approximately 25 percent of sows are managed under group housing, demonstrating that it is possible, albeit with greater care and capital expenditure to operate the system. 

With respect to egg production, the requirements for California are currently satisfied by domestic producers who have invested in non-confinement following Proposition #2 in 2008.  If the Supreme Court rules that Proposition #12 is unconstitutional, further conversion to other than conventional cages or enriched modules will cease and laws similar to Proposition #12 in the New England states will also be invalid wsith respect to eggs introduced from other states.  In specific states where confinement laws were enacted producers will be obliged to conform but will be vulnerable to the introduction of eggs from non-compliant states. It is doubtful whether revocation of confinement laws will take place in states where legislation has been passed banning conventional cages.

There is concern that if Proposition #12 is declared unconstitutional, there will be unintended consequences affecting interstate trade and the ability of states to effectively control interstate transmission of the diseases of plants and animals.

Irrespective of the outcome, Proposition #2 and its successor, Proposition #12 represented an indirect tax on consumers based on the higher price of eggs and animal protein.