On May 11, the U.S. Supreme Court decided the answer is yes.

The result was determined by a 5-4 vote in the court case, National Pork Producers Council versus Ross.

Pork producers sued California over a law that state’s voters had adopted in 2018. A ballot vote at the time had returned over 63 per cent approval of the law, which set new conditions for raising hogs, veal calves and egg-laying chickens whose meat or eggs are sold in California.

As a specialist in animal law, I expect this will result in a patchwork of laws that are likely to make U.S. meat producers very uncomfortable. Ultimately, it could push Congress to set federal standards.

California produces virtually no pork, but represents about 15 per cent of the U.S. pork market.

At most commercial hog farms in the U.S., pregnant sows have historically been kept in gestation crates, which measure about two feet by seven feet — enough room for animals to sit, stand and lie down, but not enough to turn around. California’s law requires that each sow must have at least 24 square feet of floor space — nearly double what most now get.

The National Pork Producers Council argued that this requirement imposed heavy compliance costs on farms and restricted interstate commerce. The U.S. Constitution’s commerce clause delegates the regulation of interstate commerce to the federal government.

In a series of cases over the past 50 years, the Supreme Court has made clear that it will strike down any state law that seeks to control commerce in another state or give preference to in-state commerce.

READ MORE: California could set the rules on raising pigs

Congress has remained mute on standards for handling farm animals, which are not covered under the 1966 Animal Welfare Act. Consequently, each state regulates this issue within its borders.

Nine states in addition to California have adopted laws requiring pork producers to phase out gestation crates. The law in Massachusetts, like California’s, would also apply to retail sales of pork raised elsewhere, but its enforcement has been on hold pending the Supreme Court’s ruling in the California case.

The California law says that if producers want to sell pork in California, they must raise pigs under conditions that comply with the state’s regulations. Farmers do not have to meet these standards unless they want to sell in California. It applies equally to both in-state and out-of-state producers, and so does not directly discriminate between states in a way that would constitute a clear commerce-clause violation.

However, as the Supreme Court noted, major producers, including Hormel and Tyson, have said they will be able to comply with the California standard. Niman Ranch, a network of family farmers who raise livestock humanely and sustainably, filed an amicus brief with the Supreme Court supporting California.

Although rejecting the pork industry’s position, justices in the majority disagreed as to why the California law should be upheld. Some held that pork producers had not proved that the law would substantially interfere with interstate commerce. Others argued that, regardless of the degree of interference, it was inappropriate to ask courts to balance compliance costs for the industry against state voters’ moral concerns about animal welfare.

“While the Constitution addresses many weighty issues,” Justice Neil Gorsuch wrote for the majority, “the type of pork chops California merchants may sell is not on that list.”

Similarly, dissenting justices differed as to why the California law posed a constitutional problem. Some asserted that the substantial interference requirement had been met. Only one held that the California law should be void because the animal welfare improvements were not substantial enough to overcome the increased cost.

With the precedent of the California case, states with the most progressive animal welfare policies — primarily west coast and northeast states — will be able to effectively set national animal welfare standards. Conceivably, California might also be able to require basic conditions for human labour, such as minimum wage standards, associated with products sold in California.

I expect that within five years, Congress will enact national legislation on farm animal welfare issues that will pre-empt differing state laws.

It is impossible to predict now whether a new national law would improve animal welfare or adopt existing poor welfare practices — but California’s win represents a major victory for animal welfare lobbyists.

Note: In 2014, the Canadian pork sector agreed to phase out gestation crates by 2024 using updated standards from the National Farm Animal Care Council. A later proposal to extend the deadline to 2029 has been stalled, although several major pork or hog producing companies have already touted their transition to group housing.

– David Favre is Professor of Law & The Nancy Heathcote Professor of Property and Animal Law at Michigan State University. This is an update of an article originally published in The Conversation, by Reuters, in October 2022.

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The U.S. Supreme Court is confronting this challenge in a suit now before it.

Pork producers are challenging a law that California voters adopted in 2018 via ballot initiative with more than 63 per cent approval. It set new conditions for raising hogs, veal calves and egg-laying chickens, whose meat or eggs are sold in California. The state represents about 15 per cent of the U.S. pork market.

At most commercial hog farms, pregnant sows are kept in gestation crates that measure two feet by seven feet – enough room for the animals to sit, stand and lie down, but not enough to turn around. California’s law requires that each sow must have at least 24 square feet of floor space, nearly double the amount that most now get. It does not require farmers to raise free-range pigs, just to provide more square feet when they keep hogs in buildings.

The National Pork Producers Council argues that this requirement imposes heavy compliance costs on farmers across the U.S., since large hog farms may house thousands of sows, and that it restricts interstate commerce.

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The constitution’s commerce clause delegates authority to regulate interstate commerce to the federal government. In a series of cases over the past 50 years, the Supreme Court has made clear that it will strike down any state law that seeks to control commerce in another state or give preference to in-state commerce.

Farmers and animal welfare advocates understand that if California wins, states with the most progressive animal welfare policies – primarily West Coast and northeast states – will be able to effectively set national standards for the well-being of many agricultural animals, including chickens, dairy animals and other cattle. Conceivably, California might also be able to require basic conditions for human labour, such as minimum wage standards, associated with products sold in California.

Nine other states have already adopted laws requiring pork producers to phase out gestation crates. Massachusetts’s law would also apply to retail sales of pork raised elsewhere, like California’s, but its enforcement is on hold pending the Supreme Court’s ruling in the California case.

While the U.S. federal government is mute on farm animal welfare, each state has the power to regulate this issue within its borders. For example, in recent years, nine states have outlawed housing egg-laying chickens in battery cages that have been the industry standard for decades.

Since many states still permit battery cages, egg-laying chickens’ quality of life depends on the state in which they reside.

It is also clear that the state of California has no power to adopt laws that are binding on the farmers of other states. This case falls between those two points. Here’s how:

The California law says that if producers want to sell pork in California, they must raise pigs under conditions that comply with the state’s regulations. Farmers do not have to meet these standards unless they want to sell in California.

The same requirement is applied to producers located in California and those based elsewhere, so the law does not directly discriminate between states in a way that would constitute a clear commerce clause violation.

Producers of eggs and veal who sell in California are on track to implement new space requirements for their animals under the law. In my view, however, much of the pork industry appears to be in denial. Instead of working out how to comply, the National Pork Producers Council wants the courts to set the California law aside.

Even as this case moves forward, however, major producers including Hormel and Tyson have said they will be able to comply with the California standard.

Admittedly, pork farmers have invested millions of dollars in their existing facilities, and the system efficiently produces huge quantities of cheap pork. But Californians have taken the position that this output comes at an ethically unacceptable cost to animals in the system.

In considering this case, the Supreme Court will confront two questions. First, does California’s requirement constitute a burden on interstate commerce?

There is no magical formula for what constitutes such a burden, so it is impossible to know in advance what the Supreme Court will say about this point of the case. The present court has not addressed this issue.

If the court should decide that the California law does restrict interstate commerce, it then must consider whether the measure meets the “Pike test,” which was set forth in the 1970 ruling Pike v. Bruce Church, Inc. In this case, the court held that a state law that “regulates even-handedly” must be upheld unless the burden that the law imposes on interstate commerce “is clearly excessive in relation to the putative local benefits.”

Many animal welfare questions involve striking this kind of balance between ethical positions and economic consequences in a political context. It is like mixing oil and water, which makes predictions difficult.

The biggest unknown is what views the newest Supreme Court justices will bring to this case. Will today’s court support California’s right to regulate products sold within its borders, or meat corporations’ economic arguments? How many justices will see farm animal welfare as an important public concern?

I expect the court will uphold the California law and that if this happens, within five years livestock producers will be proposing national legislation setting uniform welfare standards for farm animals. It is impossible to predict now whether a national law would improve animal welfare or adopt existing welfare practices.

– David Favre is a professor of law at Michigan State University and an expert in animal welfare laws.

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