Food & DrinkCalifornia’s Proposition 12 will be heard by Supreme Court...

California’s Proposition 12 will be heard by Supreme Court on Oct. 11


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The Supreme Court will hear oral arguments in National Pork Producers Council v Karen Ross on Oct. 11. The court on March 28 granted the writ of certiorari to officially put California Proposition 12 on its docket.

That means at least four of the nine justices want to hear the matter.

Timothy S. Bishop of Mayer Brown LLP in Chicago represents the Pork Producers Council et al. California Solicitor General Samuel Thomas Harbourt, and attorneys Bruce Andrew Wagman of Riley, Safer Holmes & Cancila LLP and Richard Mathew Wise with the California Department of Justice are on the other side.

Defendant Ross is named in her official capacity as Secretary of the California Department of Food and Agriculture.

Each side gets about 30 minutes during oral arguments. The Supreme Court gets until the end of its term to render a decision, meaning the final word might not come until June 2023. 

At issue is whether the sweeping proposition passed by voters in 2018 can block sales in California of particular poultry and pork products from areas that don’t adhere to the state’s animal housing standards. The often-reversed Ninth U. S. Circuit Court of Appeals upheld Prop 12, but the Pork Producers claim it violates the Interstate Commerce Clause of the U.S. Constitution.

And a growing list of parties from both sides of the issue is papering the high court with amicus curiae filings. Most significantly, the Solicitor General of the United States, Elizabeth B. Prelogar, has come down on the side of the Interstate Commerce Clause and the Pork Producers.

The State of California says, “The only Proposition 12-compliant pork that out-of-state businesses must produce is the pork they choose to supply to California’s market; they are free to make as many other pork products as they want and to sell them to markets outside of California.

“Proposition 12 is no different in that respect from other longstanding state sales restrictions that require out-of-state producers to use particular labels or to conform to the specific quality or safety standards if they choose to participate in the enacting State’s market.”

The Pork Producers argue that Prop 12 “was designed with arbitrary standards that lack any scientific, technical, or agricultural basis. It is unjustified and counterproductive to advancing animal health and safety.” And, they say, Prop 12 “will reverse decades of progress in on-farm efficiency, undermine the global competitiveness of the U.S. pork industry, and increase food prices, causing more consumers to be unable to afford this high-quality protein.”

The docket for the case, which now exceeds 11 pages, likely will continue to grow.

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