The Volokh Conspiracy

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Let's Talk Pork!

Not the political kind, the real kind, the stuff you get from pigs


The Supreme Court has a pretty interesting, and potentially very important, "dormant commerce clause" case before it this term—National Pork Producers Council v. Ross. Dormant commerce clause doctrine is a tangled, internally-contradictory mess, and this case gives the Court an opportunity to clarify—or to even more thoroughly mess up—some important principles governing state power in a national marketplace.

The relevant facts (taken here from the opinion below) are straightforward:

California (through Proposition 12, passed by the voters in 2018) bans the sale of uncooked pork products if the seller knows (or should know) that the meat came from a breeding pig that was confined "in a cruel manner." The law defines that to include, among other things, providing less than 24 square feet of living space—roughly the size of two bath towels—per breeding pig. California accounts for around 13% of total pork consumption in the U.S.; virtually all of the pork sold in California (>99%) comes from producers in other States. At present, only around 4% of U.S. pork producers meet California's space requirements for breeding pigs.

The Pork Producers Council (PPC) challenge this law on ground that it violates the Dormant Commerce Clause. They concede that the law does not fall under the DCC's prohibition against State laws that "discriminate" against out-of-state producers in favor of in-state producers; Prop 12, they acknowledge, treats in-state and out-of-state pork producers and sellers alike.

They rely instead on two of the other strands of DCC doctrine:

  • First and foremost, that the CA law "impermissibly regulates extraterritorial conduct" outside of California's borders by compelling out-of-state producers, as a practical matter, to change their operations (at considerable cost) so as to comply with California standards.
  • Second, that it imposes "excessive burdens on interstate commerce without advancing any legitimate local interest." California's "philosophical preferences about conduct occurring almost entirely outside California," and its "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders," cannot justify the burdens imposed on pork producers nationwide.

[Quotations above are from the PPC's brief, available here ]

The "extra-territoriality" claim is especially important and potentially far-reaching. All sides agree that California may not actually compel pork producers in Iowa or Arizona—in the sense of imposing a legal obligation on them enforceable by means of a fine or other punishment—to adopt California's pig-breeding standards, just as it may not compel businesses in Iowa or Arizona to abide by California's minimum wage rules, or California's business licensure rules, or California's public accommodation law, and so forth.

While this principle of territorial allocation of state authority is clear enough, it has proven a little tricky to pinpoint exactly where, in the Constitution (or elsewhere? the "common law of nations"?), this prohibition is articulated; as Prof. Douglas Laycock once put it*, the prohibition against extra-territorial exercises of state coercive power was "so obvious that the Founders neglected to state it." Much ink has been spilled over the question whether such action violates the Dormant Commerce Clause, or the Due Process Clause, or both, and the Court may take this opportunity to weigh in on that question. But wherever it comes from, the principle itself seems quite firmly established.

*See Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 251 (1992)

At the same time, it is likewise true, generally speaking, that California may constitutionally impose its particular local standards—regarding product labelling, or product safety, etc.—on goods and services brought in from out-of-state and used or sold in California. Such laws may, as a practical matter, have extra-territorial effects; out-of-state businesses may have to alter their practices, possibly significantly, with regard to goods destined for sale in California, changing their method of manufacture or their packaging or labelling. But they are under no legal obligation to make those changes unless and until they choose to avail themselves of the California market and ship their goods there.

In the case at hand, California's position is: That's all we're doing—applying our local standards to goods that are sold in California. We're not compelling pork producers in Iowa or Arizona or in any other State to adopt our particular standards. Pork producers in Iowa are under no obligation whatsoever to change their pig-breeding practices because of Proposition 12; they need do so only if they wish to avail themselves of selling their pork in California.

The PPC, needless to say, sees things differently.  This is not, they say, run-of-the-mill state regulation of in-state sales:

"Though Proposition 12 applies to sales of pork meat in California, its practical effects are almost entirely extraterritorial. There are very few sow farms in California. The State imports 99.87% of the pork it consumes. Proposition 12 therefore governs the housing conditions of sows located almost exclusively outside of California, [and] the practical effect of the regulation is to control conduct beyond the boundaries of the State."

Moreover, they claim, Proposition 12 does—"as a practical matter"—compel out-of-state breeders to comply with its standards, because of the structure of the pork market in the U.S.:

"Proposition 12's extraterritorial effects are not limited to the 13% of U.S. pork production [sold] in California. A market pig progresses through multiple farms outside of California as it is raised, and then is processed into many different cuts of meat that are sold across the country. If any part of a pig is sold in California, the sow it came from must be Proposition 12-compliant. And sow farmers cannot say with certainty that no meat from any of their pigs will be sold in California, after those pigs pass through nursery and finishing farms, a packer-slaughter plant, then distributors, before their meat reaches consumers. As a practical matter, all or most [sow] farmers will be forced to comply with California requirements." [emphasis added]

In other words, because pig farmers can't tell if some piece of Elsie the Sow might end up in California, they'll have to give her 24 square feet of space, lest they find themselves violating California law when her feet end up in sausage destined for San Francisco.

That's a pretty interesting variation on the extra-territoriality theme.  I don't think the Court will buy it, though I could be wrong.  That kind of "compulsion" is entirely a function of the particular configuration, at this particular point in time, of the pork market, and California is neither responsible for that nor need it adjust its regulatory affairs to take it into account. The Dormant Commerce Clause does not and should not be read to give any industry protection for the particular manner in which it has chosen to configure its nationwide distribution schemes. That configuration can change in response to market and regulatory pressures; if enough pig breeders don't want to alter their practices to bring themselves into compliance with Proposition 12, the pork distribution market will surely respond; there is no inherent reason why distributors can't offer "California-free" contracts, promising that none of products in their product stream will be shipped to California retailers, and that will solve the "compulsion" dilemma.

While I am reasonably confident that the Court will not go along with PPC's claim that Proposition 12 violates the "extra-territoriality" prong of the Dormant Commerce Clause, I'm not at all sure how it will handle their alternative claim—that the law imposes "excessive burdens on interstate commerce without advancing any legitimate local interest." California's interest here, they assert, is just a "philosophical preference," a "desire to prevent what California considers animal cruelty that is occurring entirely outside the State's borders." Even if California would have the right to apply a law directed at health and safety against pork imported from out-of-state—a certificate that the pigs were trichinosis-free, say—Proposition 12 has no health and safety rationale, and therefore cannot outweigh or justify the burdens imposed on pork producers nationwide.

I'm scratching my head over that one; I'm not even sure where the Court might look to answer the question as to whether prevention of cruelty to animals is, or is not, a "legitimate" public purpose.