By Ching Lee Assistant Editor Ag Alert
Reprinted with permission from the California Farm Bureau Federation
Legal challenges by grocers, restaurants and retailers have temporarily blocked enforcement of part of a new California law that bans the sale of whole pork meat from pigs housed in spaces that fail to meet the law’s minimum requirements.
The business groups sued the state because the California Department of Food and Agriculture is more than two years late finalizing regulations for Proposition 12. The measure was approved by California voters in 2018 and sets minimum spacing requirements for breeding pigs, egg-laying hens and veal calves.
The Jan. 21 ruling focuses on regulations for intrastate pork sales, which took effect Jan. 1. Sacramento County Superior Court Judge James Arguelles agreed to delay enforcement for pork retailers, including grocers, until 180 days after final regulations are enacted. The business groups had asked for 28 months.
The court decision does not, however, change Proposition 12 requirements for pork producers, which must give breeding pigs at least 24 square feet of floor space.
CDFA said in a statement that the “narrow” ruling applies only to grocers and other retailers and not to producers providing pork products to California, and that “producers and suppliers remain subject to enforcement if they violate the square-footage requirement that went into effect Jan. 1.”
The ruling also does not apply to sales of shell eggs, liquid eggs and veal in California, the department said. Earlier phases of the law dealing with spacing for veal calves and egg layers went into effect in 2020.
CDFA spokesman Steve Lyle said the department and the Attorney General’s Office are evaluating the ruling to determine next steps.
“CDFA continues its work to develop implementing regulations for Proposition 12, moving as quickly as possible while ensuring full consideration is given to extensive comments submitted by stakeholders during a recent public comment period,” he said. “In the meantime, CDFA continues with outreach and education efforts to support compliance by pork producers.”
California Farm Bureau President Jamie Johansson said the organization agrees with the court ruling and that it will continue to engage in the regulatory process to ensure producers’ voices are heard.
“Allowing restaurants, retailers and ultimately, consumers time to adapt to the proposed regulations just makes sense,” he said. “This process has been delayed by many factors, including COVID, and the regulatory process should not be rushed.”
The law is controversial because not only does it set production standards for pigs raised in California, it also prohibits the sale of uncooked pork from other states that do not comply with Proposition 12 housing requirements.
Some 87% of pork sold in California comes from pigs born and raised outside the state, according to the hearing record.
The U.S. pork industry is highly integrated, people in the business say. Breeding pigs and their offspring are frequently raised on more than one farm, changing hands from farmers to processors to distributors before the meat is ready for sale. Because there is currently no system in place that traces pork sold in California to a particular pig raised outside the state, groups in the California suit say it would be difficult, if not impossible, to comply with Proposition 12.
The state argues that pork sellers and suppliers have had time to create their own interstate tracking system since the law was passed in late 2018.
American Farm Bureau Federation President Zippy Duvall said the organization is pleased with the California court decision, which he said recognized the state “rushed implementation of Proposition 12 without clear rules on how it will be enforced.”
“Besides putting unfair pressure on retailers, it takes away farmers’ flexibility to ensure hogs are raised in a safe environment,” Duvall said. “Small farms across the country will be forced to make expensive and unnecessary changes to their operations, which will lead to more consolidation and higher food prices for all of America’s families.”
AFBF and the National Pork Producers Council last year petitioned the U.S. Supreme Court to weigh in on the constitutionality of Proposition 12, which they contend violates the Commerce Clause by regulating how other states comply with the law.
“The laws of one state should not set the rules for an entire nation,” Duvall said.
Some grocery chains and pork suppliers have said they were prepared to comply with Proposition 12. Even so, groups in the California suit, including Los Angeles County-based meat processor Kruse and Sons Inc., contend they should not be exposed to the threat of criminal and civil sanctions when the state still lacks final regulations.
CDFA has said it does not expect to adopt final regulations until April or July. The state was supposed to finalize regulations in September 2019 on production facility registration, certification, verification audits, border-station inspection and penalties for violations, including an appeal process. However, the department did not publish its revised proposed regulations until Dec. 3 last year.
The proposed regulations would require pork distributors to register with CDFA to engage in commercial sales in California. The rules would also enable the agency to accredit third-party certifiers.