U.S. Supreme Court

SCOTUS will consider whether California pork law may violate dormant commerce clause

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The U.S. Supreme Court on Monday agreed to decide whether pork producers can sue over a California law said to have the effect of regulating pig enclosures nationwide.

The law was enacted in 2018 by a referendum known as Proposition 12. It bans the sale of pork in California unless the pig was born to a sow that’s able to turn around freely in an enclosure that must have at least 24 square feet of space.

The cert petition is here; a brief in opposition filed by an intervenor, the Humane Society of the United States, is here; the state’s brief is here.

The National Pork Producers Council and the American Farm Bureau Federation had claimed that the law had the practical effect of regulating wholly out-of-state commerce because of the nature of the pork industry. They alleged a violation of the dormant commerce clause because the law regulates pork production outside the state and imposes an excessive burden on interstate commerce.

California imports 99.87% of its pork. Pigs progress through several facilities outside the state, and they are processed into many cuts of meat sold across the country. To comply with the law, sow housing will have to undergo “massive and costly alteration,” the cert petition alleges.

The 9th U.S. Circuit Court of Appeals at San Francisco held that the challengers failed to state a claim under precedent that allows dormant commerce clause claims only in narrow circumstances.

“While the dormant commerce clause is not yet a dead letter, it is moving in that direction,” the 9th Circuit said.

The case is National Pork Producers Council v. Ross. The SCOTUSblog case page is here.

Hat tip to Law360. Other publications with coverage include SCOTUSblog, the New York Times and the Washington Post.

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