Banning the Bacon: California Referendums Reshaping Agriculture Throughout the Nation

While Californians are waking up New Year’s Day to find the vast majority of bacon and other pork products banned in their state, the country’s agriculture industry will be scrambling to adhere to arbitrary requirements pushed by anti-meat activists.

A key section of the Farm Animal Confinement Proposition, which California voters approved in 2018, goes into effect on January 1, 2022, banning the sale of pork and pork products from hogs raised in pens that do not meet California’s prescribed standards. Unfortunately for bacon-loving residents of the Golden State, less than 5% of pork producers conform to the subjective requirements.

The new law also applies to meat produced out of state, meaning that farmers, slaughterhouses and shipping companies across the nation, in addition to California’s consumers and restaurateurs, will be impacted by the new regulations. Economic impact reports suggest that if the supply of pork products are cut in half, prices will increase as much as 60%, heaping an additional burden on restaurants already struggling from COVID restrictions, rampant inflation, and a 7.25% sales tax on meals.  Californians consume around 15% of all pork produced in the United States, with the vast majority – over 98% – imported from other states.

Unfortunately, the state’s market share is simply too large to ignore, meaning the new law will impact the pork industry across the nation. According to the National Pork Producers Council (NPPC), retrofitting existing operations would cost on average $10 per pig, or about $770 million.

Court Challenges

So far, all legal efforts to slow the implementation of the law have been defeated in court. NPPC and the American Farm Bureau Federation petitioned the U.S. Supreme Court to take their case, arguing that the law violates the U.S. Constitution’s Commerce Clause. The complaint alleges:

The massive costs of complying with Proposition 12 fall almost exclusively on out-of-state farmers. And because a single pig is processed into cuts that are sold nationwide in response to demand, those costs will be passed on to consumers everywhere, in countless transactions having nothing to do with California… 

…Because of the nature of the pork industry and its product—a pig progresses through multiple facilities outside California as it is raised, and is processed into many different cuts of meat that are sold across the country—Proposition 12 in practical effect regulates wholly out-of-state commerce.

The latest round of legal challenges, filed by the California Grocers Association, the California Hispanic Chamber of Commerce, and the California Restaurant Association, having two years to promulgate the necessary regulatory framework, the state has not yet done so, leaving businesses at risk. According to the complaint: 

This disconnect between Proposition 12 as approved by the voters and the state’s implementation of the law in the marketplace leaves market participants shouldering all of the uncertainty and legal risks. Without an order from this court, the state’s inability to put in place regulations implementing Proposition 12 in a timely manner will lead to substantial disruptions in the State’s pork supply chain in 2022 and deprive market participants of the statutorily-mandated, good faith defense against prosecution and liability that necessarily requires a functioning certification process.

Failure to comply has both civil and criminal penalties, with fines as high as $1,000 and up to 180 days in jail. 

Struggling to Comply

The industry is unsuccessfully scrambling to figure out new ways to comply with the law. One idea, adding “California Prop. 12 Compliant” stickers to products being shipped into the state, was nixed by the Food Safety Inspection Service of the U.S. Department of Agriculture. Some businesses, such as Seaboard Food, the nation’s second-largest pork producer, recently made the decision to no longer sell uncooked pork products in California.

Opponents of the law hope that their lawsuits will, at the very least, delay implementation. According to a statement by the California Hispanic Chamber of Commerce:

Because the supply chain will not have adequate time to comply with the final regulations of Prop. 12, without court intervention California small businesses and consumers will be on the hook for potential significant price increases and shortages on pork products. This will disproportionately impact the Latino community that relies on pork as an affordable protein in everyday meals. We ask the court to give the food supply chain the full two years provided in the original measure to come into compliance.

Meanwhile, the NPPC lawsuit awaits a response from the U.S. Supreme Court about whether they will take the case and answer an important question about state versus federal jurisdiction.

In Depth: Agriculture

In a 1787 letter to George Washington, Thomas Jefferson wrote that “[a]griculture is our wisest pursuit, because it will in the end contribute most to real wealth, good morals and happiness.” Agriculture, perhaps more so than any other vocation or enterprise, is indelibly American. Defined as the cultivation of plants,…

+ Agriculture In Depth