California's Unconstitutional 'Bacon Ban'

Proposition 12 may drive up prices nationwide.


Before Californians approved Proposition 12 in 2018, the measure's opponents warned that it would effectively ban the sale of bacon in the Golden State.

That was a bit of a stretch. Prop. 12, which was supported by 63 percent of voters, outlawed the sale of pork or chicken products (including eggs) unless they were produced by farms that complied with new minimum space requirements for each animal. The Humane Society of the United States, which backed the initiative, calls it the world's strongest law protecting the welfare of farm animals.

When the new rules took effect on January 1, 2022, bacon was not banned from the state, but Californians had cause for concern. California consumes about 13 percent of the pork eaten in the United States every year but produces only about 0.3 percent of the national supply. When the new rules kicked in, much of the bacon from other states was suddenly illegal in California.

Prop. 12 also raised a constitutional issue. In a lawsuit that could end up before the U.S. Supreme Court later this year, the National Pork Producers Council (NPPC) argues that the initiative violates the Dormant Commerce Clause. Because the Constitution gives Congress sole authority to regulate interstate commerce, that doctrine says, states are prohibited from imposing rules on businesses beyond their own borders. It certainly seems like Prop. 12 is an attempt to do that.

"The pork industry is a highly integrated interstate market where a pig farmer in North Carolina might sell his stock to a meat packer in Illinois, who then distributes to California," notes Trevor Burrus, a research fellow at the libertarian Cato Institute, which filed an amicus brief supporting the NPPC's argument. "It's very difficult to trace a given cut of meat back to its source and verify that the farmer complied with California law." And under the Dormant Commerce Clause,  Burrus says, a farmer in North Carolina should not have to comply with another state's laws.

Prop. 12 also could mean higher prices for consumers, and not just in California. Because so much pork consumed in California is produced elsewhere, farmers across the country may have little choice but to comply with the state's rules. The question for the Supreme Court is whether the rest of the country should have to comply with a policy approved by 7.5 million voters in a single state.