The National Pork Producers Council and American Farm Bureau Federation got a boost in their Supreme Court challenge to California’s animal housing law, Proposition 12, with the U.S. government’s filing of a brief supporting the groups.

In her amicus brief, Solicitor General Elizabeth Prelogar says California “’has no legitimate interest in protecting’ the welfare of animals located outside the state,” quoting a previous Supreme Court decision.

“Voters in pork-producing States must determine what constitutes ‘cruel’ treatment of animals housed in those States — not voters in California,” the brief says, quoting a 1935 Supreme Court decision, Baldwin v. G.A.F. Seelig Inc.

Prelogar’s brief, filed Friday, says the U.S. “takes no position on whether petitioners will ultimately be able to prove that Proposition 12 unduly restricts interstate commerce” under the Supreme Court’s Pike v. Bruce Church Inc. decision.

However, “at this stage, … petitioners have plausibly alleged that Proposition 12 will have substantial adverse impacts on the interstate pork market,” her brief said, urging the Supreme Court to reverse the 9th U.S. Circuit Court of Appeals’ decision to dismiss the ag groups’ challenge, and remand the case to the appeals court.

“If petitioners prove those allegations, then those burdens are ‘clearly excessive in relation to’ what petitioners allege to be insubstantial or non-existent ‘local benefits,’” she says, quoting Pike.

She also questions California’s other rationale for Prop 12, protecting “the health and safety of California consumers.” AFBF and NPPC “plausibly allege that Proposition 12 has no genuine health-and safety justification,” Prelogar says. “And the California Department of Food and Agriculture has stated that Proposition 12’s confinement standards are not ‘accepted as standards within the scientific community to reduce human foodborne illness.’”

The law “bars the importation of pork meat derived from a hog that is the offspring of a breeding pig housed out of state unless that breeding pig was confined according to California’s standards,” Prelogar’s brief explains.

AFBF and NPPC “allege that Proposition 12 will impose hundreds of millions of dollars in costs on out-of-state pork producers and will actually diminish sow welfare. If petitioners prove their allegations, then those substantial burdens on interstate commerce are ‘clearly excessive in relation to’ what petitioners allege to be insubstantial or non-existent ‘local benefits,’” the solicitor general says, quoting Pike.

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NPPC and AFBF have asserted that more than 99% of the pork consumed in California comes from outside the state, and imposing minimum housing requirements on sows that produce pork sold in California “will require massive and costly changes across the entire $26-billion-a-year industry. And it inescapably projects California’s policy choices into every other State, a number of which expressly permit their farmers to house sows in ways inconsistent with Proposition 12.”

“California’s attempt to regulate out-of-state entities without a legitimate in-state justification does not become constitutional simply because the state has structured Proposition 12 as a ban on the in-state sale of pork from the offspring of sows confined in a non-compliant manner,” Prelogar says.

If California is allowed to ban “the importation of wholesome pork meat based on philosophical opposition to out-of-state animal-husbandry practices, then ‘so may all the other[]’ states,” Prelogar says, quoting the court’s decision in Southern Pac. Co. v. Arizona ex rel. Sullivan

“Other states might well condition in-state sales on even more square feet of space per hog, or on compliance with requirements concerning animals’ feed, veterinary care, or virtually any other aspect of animal husbandry,” Prelogar says.

The case is scheduled for argument Oct. 11.

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