Amicus Curiae Brief — National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.
Supreme Court briefJun 17, 2022
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No. 21-468
In The
Supreme Court of the United States
NATIONAL PORK PRODUCERS COUNCIL, et al.,
Petitioners,
v.
KAREN ROSS, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE CALIFORNIA DEPARTMENT OF
FOOD & AGRICULTURE, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
BRIEF OF THE CANADIAN PORK COUNCIL,
OPORMEX, AND THE ILLINOIS PORK
PRODUCERS ASSOCIATION AS AMICI CURIAE IN
SUPPORT OF PETITIONERS
ROY T. ENGLERT, JR.
Counsel of Record
LEE T. FRIEDMAN
JASON A. SHAFFER
KRAMER LEVIN ROBBINS RUSSELL
2000 K Street, N.W., 4th Floor
Washington, D.C. 20006
(202) 775-4500
renglert@kramerlevin.com
June 17, 2022
Counsel for Amici Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES....................................... ii
INTEREST OF THE AMICI CURIAE ....................... 1
SUMMARY OF ARGUMENT .....................................2
ARGUMENT ...............................................................5
PROPOSITION 12 VIOLATES THE
COMMERCE CLAUSE...........................................5
A. Proposition 12 violates the Commerce
Clause because it controls conduct within
Canada and Mexico ..........................................5
B. Proposition 12 violates the Commerce
Clause because it impermissibly burdens
commerce with Canada and Mexico .............. 14
C. Proposition 12 violates the Commerce
Clause because it frustrates federal trade
policy with Canada and Mexico ..................... 18
CONCLUSION .......................................................... 22
APPENDIX
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Antilles Cement Corp. v. Acevedo Vila,
408 F.3d 41 (1st Cir. 2005) ..................................14
Board of Trustees v. United States,
289 U.S. 48 (1933) .................................................. 2
C & A Carbone, Inc. v. Town of
Clarkstown, N.Y.,
511 U.S. 383 (1994) .............................................. 18
Container Corp. of Am. v. Franchise Tax
Bd., 463 U.S. 159 (1983) ...................................... 21
Healy v. Beer Inst.,
491 U.S. 324 (1989) ................................ 3, 5, 10, 13
Japan Line, Ltd. v. Cnty. of Los Angeles,
441 U.S. 434 (1979) ...................................... passim
Michelin Tire Corp. v. Wages,
423 U.S. 276 (1976) .............................................. 18
Pac. Nw. Venison Producers v. Smitch,
20 F.3d 1008 (9th Cir. 1994) ................................ 14
Piazza’s Seafood World, LLC v. Odom,
448 F.3d 744 (5th Cir. 2006) ................................ 14
Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970) .......................................... 4, 14
S.-Cent. Timber Dev., Inc. v. Wunnicke,
467 U.S. 82 (1984) ............................................ 3, 18
Trojan Technologies, Inc. v.
Pennsylvania,
916 F.2d 903 (3d Cir. 1990) ................................. 14
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Statutes
Cal. Health & Safety Code § 25991(e)(3) .................. 13
Cal. Health & Safety Code § 25992 ...................... 5, 13
Cal. Health & Safety Code § 25993(a) ........................ 8
Other Authorities
Agreement Between the United States of
America, the United Mexican States, and
Canada (July 1, 2020), Ch. 11,
https://ustr.gov/trade-agreements/free-tradeagreements/united-states-mexico-canadaagreement/agreement-between ...........................19
Alberta Animal Protection Act, R.S.A.
2000, c A-41 (Can.) ............................................... 12
Animal Protection Index (API) 2020: Mexico,
World Animal Protection,
http://api.worldanimalprotection.org/sites/
default/files/api_2020_-_mexico_0.pdf................. 11
Annex T: Canadian Ractopamine-Free Pork
Certification Program (CRFPCP), Canadian
Food Inspection Agency,
https://inspection.canada.ca/exportingfoodplants-or-animals/food-exports/foodspecific-export-requirements/meat/crf
pcp/eng/1434119937443/1434120400252 ............ 12
Appellate Body Reports, United States-Certain
Country of Origin Labelling (COOL)
Requirements, WT/DS384/AB/R,
WT/DS386/AB/R (adopted July 23, 2012) ...........21
iv
TABLE OF AUTHORITIES—Continued
Page(s)
British Columbia Prevention of Cruelty
to Animals Act, R.S.B.C. 1996, c 322
(Can.) .................................................................... 12
Code of Practice for the Care and Handling of
Pigs (2014), National Farm Animal Care
Council, https://www.nfacc.ca/codes-ofpractice/pigs#Various............................... 11, 12, 13
Consolidated Appropriations Act 2016, Public
Law No. 114-113, § 759 (Dec. 18, 2015) .............. 21
Decisions by the Arbitrator, United States–
Certain Country of Origin Labelling (COOL)
Requirements, Recourse to Article 22.6 of the
DSU by the United States, WT/DS384/ARB,
WT/DS386/ARB (Dec. 7, 2015) ............................21
Hog Farm Data, Statistics Canada,
https://www.cpcccp.com/file.aspx?id=bff3d735-e80f4024-9151-fce2cb4d0ce5 ...................................... 16
Livestock Exported to the United States,
Statistics Canada,
https://agriculture.canada.ca/en/marketinformation-system/rp/indexeng.cfm?action=gR&r=191&signature=05151
77A D607D9565B612C32CEB3
1847&pdctc=&pTpl=1#wb-cont ............................. 6
v
TABLE OF AUTHORITIES—Continued
Page(s)
Losada-Espinosa, N., et al., The Welfare of Pigs
in Rustic and Technified Production Systems
. . ., VETERINARIA MÉXICO OA, Vol. 4, No. 4
(2017),
https://veterinariamexico.fmvz.unam.mx/ind
ex.php/vet/article/view/521/528 ...........................16
Manitoba Animal Care Regulation,
M.R. 126/98 (Can.) ............................................... 12
New Brunswick General Regulation–Society for
the Prevention of Cruelty to Animals Act,
N.B.R. 2000-4 (Can.) ............................................ 12
Newfoundland and Labrador Animal Health
Protection Regulations, NLR 35/12 (Can.),
Section 4(e) ........................................................... 12
Ontario Society for the Prevention of Cruelty to
Animals Act, R.S.O. 1990, c O.36 (Can.) ............. 12
PigCare, Canadian Pork Council,
http://www.cpc-ccp.com/pigcare ........................... 13
Pork exports by month, Statistics Canada,
https://agriculture.canada.ca/en/agricultureand-agri-food-canada/canadas-agriculturesectors/animal-industry/red-meat-andlivestock-market-information/trade/redmeat-exports-month ............................................... 6
Prince Edward Island Animal Welfare Act
Animal Protection Regulations, P.E.I.R.
EC71/90 {rev} by EC510/17/17 (Can.) ................. 12
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Proposed Regulations–Animal Confinement,
California Department of Food and
Agriculture,
https://www.cdfa.ca.gov/ahfss/pdfs/regulation
s/AnimalConfinement1stNoticePropReg_052
52021.pdf ........................................................ 19, 20
Quebec Animal Welfare and Safety Act,
C.Q.L.R. c B-3.1 (Can.)......................................... 12
Saskatchewan Animal Protection Regulations,
R.R.S 2018, c A-21.2 Reg 1 (Can.) ....................... 12
Second 15-Day Notice of Modified Text Relating
to Animal Confinement (June 9, 2022),
https://www.cdfa.ca.gov/ahfss/pdfs/regulations/
AnimalCare-Second_15day_Comment_Period_Documents.pdf ................. 8
1
INTEREST OF THE AMICI CURIAE1
Amicus Curiae the Canadian Pork Council is a
not-for-profit federation of nine provincial pork-industry associations representing 7,000 farms in Canada.
Its mission is to advance, promote, and protect the excellence of Canadian pork production through effective advocacy, programs, and communication. Canada
is the third-largest pork exporter in the world, and Canadian farmers export to the United States significant
quantities of finished pork products and live hogs.
Amicus Curiae Unificación Nacional Porcícola,
A.C., known commercially as OPORMEX, is a trade
organization representing Mexican pork producers.
Its mission is to contribute to making quality pork
products available to consumers in Mexico and
throughout the world with safety, added value, and
sustainability.
Amicus Curiae the Illinois Pork Producers Association is an agricultural trade association representing
more than 1,600 pork producers throughout Illinois
who collectively employ more than 57,000 Illinois citizens, contribute more than $13.8 billion to the Illinois
economy through hog production and processing, and
have various upstream and downstream business
partners, including other farms and enterprises. Its
mission is to provide producers with services that enhance profitability and consumer preference for pork.
Each year, independent Illinois pork producers import
1 All parties received timely notice and consented to the filing
of this brief. No party wrote any portion of this brief, and no person or entity other than the amici curiae listed above made any
monetary contribution toward this brief.
2
more than 100,000 head of feeder hogs born on sow
farms in Canada.
California’s Proposition 12 regulates the housing
space that farmers must provide for sows bred for
pork production. It forces the pork producers represented by the Amici Curiae to either (i) endure significant up-front costs and operational disruptions and
ongoing expenses and compliance obglitations to comply with Proposition 12, or (ii) lose the opportunity to
sell pork and hogs in California and, for Canadian and
Mexican producers, the United States. The Amici Curiae have a significant interest in protecting their
members from Proposition 12’s devastating consequences to their livelihoods.
SUMMARY OF ARGUMENT
California’s Proposition 12 applies only to pork
products sold within the State, but what it regulates
is not conditions at the point of sale. Proposition 12’s
tentacles spread far beyond California, reaching
across the United States’ borders into Canada and
Mexico and requiring hog farmers there to follow California’s stringent animal-welfare standards.
Proposition 12’s disruptive effect on foreign trade
is among its constitutional defects. “Foreign commerce is pre-eminently a matter of national concern,”
and in matters of “‘foreign intercourse and trade the
people of the United States act through a single government with unified and adequate national power.’”
Japan Line, Ltd. v. Cnty. of Los Angeles, 441 U.S. 434,
448 (1979) (quoting Board of Trustees v. United States,
289 U.S. 48, 59 (1933)). This “need for federal uniformity is no less paramount in ascertaining the neg-
3
ative implications of Congress’ power to regulate Commerce with foreign Nations under the Commerce
Clause.” Id. at 449. Thus, “state restrictions burdening foreign commerce are subjected to a more rigorous
and searching scrutiny.” S.-Cent. Timber Dev., Inc. v.
Wunnicke, 467 U.S. 82, 100 (1984) (plurality).
A searching look at Proposition 12 reveals that the
law impermissibly regulates interstate and foreign
commerce, in violation of the dormant Commerce
Clause. As the Canadian Government explained to
California, Proposition 12 would have “detrimental
impacts on the integrated North American market”—
especially if other States follow suit and implement
their own animal-welfare requirements. App. 2a.
First, Proposition 12 regulates commerce occurring wholly in Canada and Mexico. See Healy v. Beer
Inst., 491 U.S. 324, 336 (1989). The pork industries in
those countries deeply intertwine with the United
States’ supply chain and share similar structures.
Like farmers in the United States, Canadian and
Mexican hog farmers often specialize in one phase of
the highly segmented production process—whether it
be sow farms, nursery barns, finishing farms, or
slaughter and processing plants. See Pet’rs Br. 11-12.
As in the United States, it also is nearly impossible to
trace a particular pork product back through the supply chain to the original breeder sow. See id. at 12.
Thus, to comply with Proposition 12, Canadian and
Mexican sow farmers would need to reconfigure housing facilities for all breeder sows—even for sows
whose offspring would never touch California—or implement onerous segregation practices. See id. at
14-16. So they too must then open their doors to certification and auditing by California officials.
4
California’s sole justification for Proposition 12 is
animal welfare. But animal welfare is no more subject
to a uniform international standard set by a single
State than many other crucial subjects of legislation.
Mexico and Canada attend to animal welfare and
have their own criteria for the care and handling of
pigs—criteria that, in many respects, take a more holistic approach than California, and conflict with
Proposition 12’s housing-space requirements. California’s extraterritorial regulation of Mexican and Canadian sow farms would thwart those nations’ own considered choices about how to protect animal welfare.
Second, Proposition 12 fails the balancing test of
Pike v. Bruce Church because it would impose burdens
on foreign commerce that clearly exceed any putative
local benefits. For those pork producers who are able
to meet California’s stringent housing-space requirements, a substantial capital investment would be required. And many small pork producers would be unable to comply, and would either shutter their doors
or halt exporting to the United States rather than undertake a substantial overhaul of their production facilities.
Third, Proposition 12 impermissibly frustrates
federal trade with Canada and Mexico. It interferes
with the United States’ obligations under the U.S.–
Mexico–Canada Free Trade Agreement by imposing
regulatory measures on Canada and Mexico that lack
scientific support and that restrict trade more than
necessary. And it has already offended Canada, one of
the United States’ most important trading partners.
For each of these reasons, this Court should
reverse.
5
ARGUMENT
PROPOSITION
12
COMMERCE CLAUSE
VIOLATES
THE
A. Proposition 12 violates the Commerce
Clause because it controls conduct within
Canada and Mexico.
A State “statute that directly controls commerce
occurring wholly outside the boundaries of a State exceeds the inherent limits of the enacting State’s authority and is invalid.” Healy, 491 U.S. at 336. That is
so “regardless of whether the statute’s extraterritorial
reach was intended by the legislature.” Id. To determine whether a regulation exceeds the enacting
State’s authority, the “critical inquiry” is whether the
regulation’s “practical effect” would be “to control conduct beyond the boundaries of the State.” Id.
Proposition 12 controls conduct occurring far beyond California’s borders. It dictates housing-space
requirements for breeding sows, even though “99.87%
of the pork consumed” in California “comes from hogs
born on farms outside the State.” Pet’rs Br. 8. The sow
farmers whose conduct California’s far-reaching law
would control are located not only in other States, but
in Canada and Mexico too. See Cal. Health &
Safety Code § 25992 (no exceptions for out-of-State or
foreign producers). California’s regulation reaches
across foreign borders into other nations, and would
disrupt an integrated North American industry.
Proposition 12 impermissibly attempts to control
conduct occurring wholly within Canada and Mexico
in three main ways.
6
1. Canadian and Mexican producers would be
forced to comply with Proposition 12’s strict housing-space requirements even for sows with no connection to California.
As in the United States, the pork production industry in Canada and Mexico is highly segmented. The
industry includes (i) sow farms where breeder pigs are
raised; (ii) nursery barns that house weaned piglets
until they reach a certain weight; (iii) finishing farms
where larger pigs—known at this stage as “feeder
pigs”—reach their market weight; and (iv) slaughter,
processing, and packing facilities.
The North American pork industry is integrated at
all stages of this segmented process. Last year alone,
Canada exported close to 5 million feeder pigs, more
than 1.5 million market hogs, and more than 1.4 million metric tons of finish pork products to the United
States. 2 Similarly, in 2021, Mexico exported more
than 80,000 tons of pork products to the United
States.
Yet many pigs and pork products exported by Canada and Mexico never enter California. And Canadian
exporters generally cannot control where the pork
products made from their exported hogs are distributed and sold.
See Livestock Exported to the United States, Statistics
Canada, https://agriculture.canada.ca/en/market-informationsystem/rp/index-eng.cfm?action=gR&r=191&signature=0515
177AD607D9565B612C32CEB31847&pdctc=&pTpl=1#wb-cont;
Pork
exports
by
month,
Statistics
Canada,
https://agriculture.canada.ca/en/agriculture-and-agri-foodcanada/canadas-agriculture-sectors/animal-industry/red-meatand-livestock-market-information/trade/red-meat-exportsmonth.
2
7
Proposition 12 would require U.S. farmers, packers, and distributers who want to preserve the ability
to sell pork products in California—and still source
pigs from Canada—to trace those pigs back to a particular breeding sow. That process would be impracticable at best and impossible at worst, given the number of transactions between the sow farmer and the
consumer, and the number of industry participants involved—from sow farmer to nursery to finisher to
packer to distributor to retailer to consumer.
Proposition 12’s inevitable effect, then, would be to
require that all hogs and processed pork products exported to the United States be traced to sows housed
in compliance with Proposition 12—whether or not
those hogs or the resulting pork products ever enter
California.
What’s more, Proposition 12 would dictate the
housing requirements for breeding sows used to produce pork products that never even reach the United
States—let alone California. As in the U.S. market,
Canadian and Mexican packers process hogs received
from different sources into different cuts of pork to be
sold in Canada or Mexico, the United States, and
other foreign markets. It is impossible to trace every
pork product to a particular sow housed in a particular way. To preserve their ability to ship pork products
into the U.S., packers and processers would need to
ensure that all products come from breeder sows that
comply with Proposition 12. It is inevitable that some
of that pork would be sold in Mexico and Canada or
exported to other foreign markets.
These effects also hurt the ability of Mexico and
Canada—and the United States—to trade in other foreign markets. As Canada has warned, Proposition
8
12’s “additional costs and disruptions to the integrated North American market will make the United
States and Canada less competitive relative to other
nations and trading blocs.” App. 2a.
2. Proposition 12’s implementing regulations
would force Canadian and Mexican producers to comply with California’s intrusive inspection, recordkeeping, and auditing requirements.
The California Department of Food and Agriculture (“CDFA”) promulgates rules and regulations implementing Proposition 12. See Cal. Health & Safety
Code § 25993(a). Even if it were possible to draft rules
that would advance California’s legitimate interests
without directly regulating business elsewhere, California has not even tried. Instead, the CDFA’s draft
rules 3 confirm Proposition 12’s extraordinary extraterrestrial reach.
The draft rules provide that “any out-of-state pork
producer that is keeping, maintaining, confining,
and/or housing a breeding pig for purposes of
producing whole pork meat, from the breading pig or
its immediate offspring, for human food for
commercial sale in California, shall hold a valid
certification issued pursuant to [the draft rules] as a
certified operation.” Draft Rules art. 3 § 1322.1(b)
(emphasis added). The rules expressly apply to
operations both “domestic or foreign.” Id. § 1326.9(a).
To “receive or maintain certification,” producers
who maintain breeding sows anywhere in the world
Second
15-Day
Notice
of
Modified
Text
Relating
to
Animal
Confinement
(June
9,
2022),
https://www.cdfa.ca.gov/ahfss/pdfs/regulations/AnimalCare-Second_15-day_Comment_Period_Documents.pdf (“Draft Rules”).
3
9
must permit “on-site inspections” by a “certifying
agent,” by “representatives” of California’s Department of Food and Agriculture, or both, id. § 1326.1(a),
and must permit inspectors to “access . . . pastures,
fields, structures, and houses where covered animals
and covered animal products may be kept, produced,
processed,
handled,
stored
or
transported,”
id. § 1326.1(a)(3).
Sow farmers also “must maintain records concerning the production and distribution of covered animals
and/or covered products.” Id. § 1326.2(a). The recordkeeping requirements are onerous: For every sow
“identified or represented as compliant with” Proposition 12, the producer must document, among other
things:
-
“all covered animal and/or covered product
transactions for the preceding two-year period”;
-
“the production, processing, handling, packaging, storage, transportation, or sale of covered
animals or covered products”;
-
and “the size of the certified operation, the
quantity of covered animals and/or covered
products produced or processed from each facility or farm unit in the certified operation, the
number of covered animal enclosures for each
facility or farm unit, the size of each enclosure,
the number of covered animals housed in each
enclosure, and the dates of stocking, harvest
and production.”
Id. § 1326.2(b)(4)-(6).
On top of all that, sow farmers must permit the
CDFA (or its certifying agents) to inspect and audit
those records “at the discretion of the certifying agent
10
or the Department.” Id. § 1326.2(c). That audit may
happen “by on-site inspection,” “email, phone, teleconference, or any combination thereof.” Id. In other
words, Proposition 12 requires hog farmers to open
their doors and records to agents of the State of California, no matter their location. A more invasive
and far-reaching animal-welfare regulation is hard to
imagine.
Proposition 12’s complex certification, recordkeeping, inspection, and audit requirements would apply
to sows housed by foreign producers on foreign soil—
even if those particular sows and their offspring never
produce meat sold in California. And, if this Court
were to uphold Proposition 12, other States could follow suit, forcing Canadian and Mexican sow farmers
to navigate an ever-growing thicket of stringent,
State-imposed recordkeeping requirements.
3. Proposition 12 would interfere with the legitimate regulatory regimes in Canada and Mexico.
“[T]he Commerce Clause protects against inconsistent legislation arising from the projection of one
state regulatory regime into the jurisdiction of another State.” Healy, 491 U.S. at 336-37. Therefore,
when considering whether a statute has an impermissible extraterritorial reach, this Court evaluates “how
the challenged statute may interact with the legitimate regulatory regimes of other States.” Id. at 336.
For years, Mexico and Canada have regulated
animal welfare in their countries without dictates
from California. In Mexico, the Federal Animal
Health Act of 2007 empowers the Secretariat of
Agriculture, Livestock, Rural Development, Fisheries
and Food to safeguard the health and welfare of
11
animals used in farming. See Animal Protection Index
(API) 2020: Mexico, World Animal Protection,
http://api.worldanimalprotection.org/sites/default/file
s/api_2020_-_mexico_0.pdf. The Secretariat sets
measures of good husbandry practices and
promulgates rules for ensuring animal welfare—a
concept that to Mexico means providing comfort,
peace, protection, and security for animals during
breeding, husbandry, use, transportation, and
slaughter. See id. With Proposition 12, however,
California would scrap Mexico’s legitimate, existing
regulatory scheme to replace it with California’s
preferences.
It would do the same in Canada. Canada is every
bit as concerned about animal welfare as California.
But Canada seeks to promote that welfare by different
means. Unlike California, Canada has determined
that “focusing solely on [the] one area [of housing]
may lead to poor welfare in other aspects of the animal’s well-being.” App. 2a. By projecting California’s
animal-welfare regulations onto Canadian pork producers, Proposition 12 tries to interfere with Canada’s
sovereign, well-established, and scientifically backed
regulatory regime for the handling of pigs within
Canada.
In 2014, Canada’s National Farm Animal Care
Council (NFACC) promulgated the Code of Practice
for the Care and Handling of Pigs. See Code of Practice
for the Care and Handling of Pigs (2014), NFACC,
https://www.nfacc.ca/codes-of-practice/pigs#Various
(“Code”). The Code contains highly specific requirements for the housing, care, and handling of pigs. See
id. § 1.2 & App.B. Canada considers the Code’s “holistic approach” to the care and handling of farm animals
12
“to be the best way to ensure the comfort and wellbeing of animals.” App. 1a. It believes that “welfare is
more complex than just housing and an animal’s physical accommodation.” App. 1a. The Code includes
guidelines for determining individual stall sizes for
gestating gilts and sows, and recommends minimum
floor-space allowances for gilts and sows housed in
groups. See Code § 1.2 & App.B.
The NFACC Code, though originally adopted by a
non-governmental organization, has the force of law.
Five Canadian Provinces have directly incorporated
the Code into their animal care regulations through
legislation. 4 The remaining Provinces have adopted
animal-welfare regulations incorporating similar generally accepted industry practices. 5
The Code is also imposed indirectly across Canada
through the Canadian Ractopamine-Free Pork Certification Program.6 That program requires producers
4 See Manitoba Animal Care Regulation, M.R. 126/98 (Can.);
New Brunswick General Regulation–Society for the Prevention
of Cruelty to Animals Act, N.B.R. 2000-4 (Can.); Newfoundland
and Labrador Animal Health Protection Regulations, NLR 35/12
(Can.), Section 4(e); Prince Edward Island Animal Welfare Act
Animal Protection Regulations, P.E.I.R. EC71/90 {rev} by
EC510/17/17 (Can.); Saskatchewan Animal Protection Regulations, R.R.S 2018, c A-21.2 Reg 1 (Can.).
5 See Alberta Animal Protection Act, R.S.A. 2000, c A-41
(Can.); British Columbia Prevention of Cruelty to Animals Act,
R.S.B.C. 1996, c 322 (Can.); Quebec Animal Welfare and Safety
Act, C.Q.L.R. c B-3.1 (Can.); Ontario Society for the Prevention
of Cruelty to Animals Act, R.S.O. 1990, c O.36 (Can.).
6
See Annex T: Canadian Ractopamine-Free Pork
Certification Program (CRFPCP), Canadian Food Inspection
Agency,
https://inspection.canada.ca/exporting-foodplants-oranimals/food-exports/food-specific-export-requirements/meat/crf
pcp/eng/1434119937443/1434120400252.
13
to participate in the Canadian Pork Council’s animal-care program known as PigCARE, which incorporates the Code. See PigCare, Canadian Pork Council,
http://www.cpc-ccp.com/pigcare. Because many countries—including the United States—require Ractopamine-Free Certification, all of Canada’s federally inspected pork processors participate in PigCARE and
require their suppliers of pigs to do so. In short, the
Code applies essentially to all Canadian producers
that export hogs or pork products to the United
States.
Proposition 12 would interfere with Canada’s
well-established animal-welfare regime and impose
California’s conflicting view of the best animal-welfare practices on pork producers regulated by different
sovereigns. The Code expressly permits farmers to
house sows in group pens with between 19 and 26
square feet per sow, depending on the feeding system,
flooring, and group size. See Code § 1.2 & App.B. The
Code also permits farmers to house sows in individual
breeding pens during the transition period between
weaning a litter through rebreeding. Id. § 1.1.2-1.1.4.
By contrast, Proposition 12 prohibits producers from
confining a sow with less than 24 square feet of usable
space per animal—even during that same transition
period. See Cal. Health & Safety Code § 25991(e)(3);
id. § 25992.
Proposition 12 thrusts on Canadian and Mexican
producers “inconsistent legislation arising from the
projection of” California’s “regulatory regime into the
jurisdiction” of foreign nations. Healy, 491 U.S. at 337.
It thus controls conduct beyond California’s boundaries and exceeds the inherent limits of California’s authority. See id. at 336-37.
14
B. Proposition 12 violates the Commerce
Clause because it impermissibly burdens
commerce with Canada and Mexico.
Proposition 12 also fails the balancing test of Pike
v. Bruce Church. Even when a “statute regulates
even-handedly” (which we will assume in this section,
without conceding, that Proposition 12 does), the
question under Pike is whether the “burden imposed
on [interstate or foreign] commerce is clearly excessive in relation to the putative local benefits.” 397 U.S.
137, 142 (1970).
This Court has never addressed how to apply the
Pike balancing test when a state regulation burdens
foreign commerce together with interstate commerce.
Several courts of appeals have held that the traditional Pike analysis applies. See Antilles Cement Corp.
v. Acevedo Vila, 408 F.3d 41, 46 (1st Cir. 2005)
(“[A]lthough the language of dormant Commerce
Clause jurisprudence most often concerns interstate
commerce, essentially the same doctrine applies to international commerce.”); Pac. Nw. Venison Producers
v. Smitch, 20 F.3d 1008, 1014-16 (9th Cir. 1994) (applying Pike to analyze burden on foreign commerce).
If anything, “a more searching review” must be undertaken of state laws that burden international as well
as interstate commerce. Trojan Technologies, Inc. v.
Pennsylvania, 916 F.2d 903, 912 (3d Cir. 1990) (citing
Japan Line, Ltd., 441 U.S. at 446); Piazza’s Seafood
World, LLC v. Odom, 448 F.3d 744, 750 (5th Cir. 2006)
(holding that, in the Foreign Commerce Clause context, additional “considerations come into play” beyond the traditional Pike test).
15
Proposition 12 attempts to impose considerable
burdens on foreign commerce. It would require Canadian and Mexican producers who want to continue exporting pigs and pork products to the United States to
spend millions in upfront capital costs, implement labor-intensive production practices, comply with new
and onerous recordkeeping requirements, and—in a
particular affront to foreign sovereignty—undergo
regular on-site inspections and audits by California
bureaucrats. See § I.A, supra. For those pork producers able to meet Proposition 12’s excessive requirements, the Canadian Pork Council estimates that converting housing pens and barns alone would cost Canadian pork producers between USD$200,000 and
USD$600,000 per 1,000 breeding pigs. Br. of Canadian Pork Council (Oct. 29, 2021), App. 2a.
In reality, though, small pork producers would be
unable to meet Proposition 12’s mandates due to the
operational burdens and steep costs required. Small,
independent sow farmers are less likely to have access
to the kind of capital needed to reconfigure their sow
housing facilities. And the need to document the housing conditions of the sow that each hog came from
would burden independent nurseries and finishing
farms. Proposition 12 would clobber pig farmers in rural parts of Canada and Mexico, all because California
thinks it knows better how to protect animal welfare
than other responsible officials throughout North
America.
Respondents asserted in their brief in opposition
that large suppliers like Tyson Foods—one of the
largest food companies in the United States—would
have little difficulty complying with Proposition 12.
BIO 18-19. But Tyson Foods hardly represents the
16
rural pig farmers and small businesses that fill
Mexico’s and Canada’s pork industries. In Mexico,
approximately 20-30% of the country’s pork output
comes from “rustic production systems,” which involve
“keeping animals in small extensions of land
in or near the housing yard.” Losada-Espinosa, N.,
et al., The Welfare of Pigs in Rustic and
Technified Production Systems . . ., VETERINARIA
MÉXICO OA, Vol. 4, No. 4 (2017), at 2,
https://veterinariamexico.fmvz.unam.mx/index.php/v
et/article/view/521/528. In Canada, the average
number of pigs per farm in 2021 was 1,851. See
Hog Farm Data, Statistics Canada, https://www.cpcccp.com/file.aspx?id=bff3d735-e80f-4024-9151fce2cb4d0ce5. In some Provinces, the typical farm is
even smaller. For instance, British Columbia reported
770 active farms with an average of only 112 pigs per
farm—a far cry from a major food giant. Id.
Further down the supply chain, Canada also expects that Canadian packers and processors that
source pigs from multiple farmers would need to segregate Proposition 12-compliant pork from pork that
complies with Canada’s different scheme for protecting animal welfare. Br. of Canadian Pork Council
(Oct. 29, 2021), App. 2a-3a. The additional operational
costs of segregating California-compliant pigs at
nurseries, finishing farms, and processing plants
would be substantial.
Indeed, the Canadian and Mexican pork industries
witnessed comparable segregation costs first-hand
when the United States—at the federal level, where
proper regulations belong—implemented mandatory
“country-of-origin” (COOL) labeling requirements for
17
pork and beef products in 2008.7 To comply with the
COOL regulations, foreign-born pigs had to be separated from domestic-born pigs (and further segregated
based on the location where they were raised), generating substantial production costs throughout the
supply chain.
Those costs and operational burdens would harm
not only producers in Canada and Mexico, but also
producers in the United States. Proposition 12 would
force producers to pass California-only compliance
costs along to their customers in the United States. It
would force other producers—particularly those
small, independent farmers in Mexico and Canada
who lack the resources necessary to overhaul production to comply with Proposition 12—out of business.
In combination, Proposition 12 would increase the
cost and reduce the supply of Canadian and Mexican
pork, hurting (among many others) farmers in Illinois
and other States whose businesses depend on importing hogs from Canada.
At just one State’s insistence, Proposition 12 would
impose vast burdens throughout the North American
supply chain. And those burdens would fall almost entirely on sow and hog farmers outside California, in
other States and in other countries. Californians consume 13% of the pork eaten in the United States, yet
California has only about 0.133% of the national
7 Although the COOL regulations had the virtue of being im-
posed at the federal level rather than by a single State with
global ambitions, they had the fatal defect of violating the United
States’ treaty obligations. See pp. 20-21, infra. California seems
to hold the bizarre belief that the Commerce Clause allows a
State to frustrate the United States’ treaty obligations in a way
that the federal government could not.
18
breeding-pig herd. Pet’rs Br. 8. As a result, Californians import more than 99% of the pork they consume.
Id.
The disproportionate burdens on international
commerce that Proposition 12 would impose far exceed any putative local benefits. California’s justification for Proposition 12 is “to prevent animal cruelty by
phasing out extreme methods of farm animal confinement.” Pet. App. 37a. But virtually every sow that
Proposition 12 affects is housed outside California,
and many are regulated by regimes that protect animal safety by following a different philosophy. California’s arrogant notion that it knows better than other
States and nations how to protect animals is a far cry
from a local benefit that could justify Proposition 12’s
extreme burdens on interstate and foreign commerce.
States may not cite out-of-state concerns to justify “restrictions to exports or imports” that “control commerce in other states.” C & A Carbone, Inc. v. Town of
Clarkstown, N.Y., 511 U.S. 383, 393 (1994). “To do so
would extend the [State’s] police power beyond its jurisdictional bounds.” Id.
C. Proposition 12 violates the Commerce
Clause because it frustrates federal trade
policy with Canada and Mexico.
“It is crucial to the efficient execution of the Nation’s foreign policy that ‘the Federal Government
speak with one voice when regulating commercial relations with foreign governments.’” S.-Cent. Timber
Dev., Inc., 467 U.S. at 100 (quoting Michelin Tire
Corp. v. Wages, 423 U.S. 276, 285 (1976)) (citing Japan Line, Ltd., 441 U.S. at 451) (alteration adopted).
One way a state law can violate the Commerce Clause
is by “impair[ing] federal uniformity in an area where
19
federal uniformity is essential” or “prevent[ing] this
Nation from ‘speaking with one voice’ in regulating
foreign trade.’” Japan Line, 441 U.S. at 448, 452.
Proposition 12 impermissibly frustrates federal
trade policy with Canada and Mexico—an area where
federal uniformity is essential. The United States’
trade agreements reflect a clear policy of free and open
trade in North America.
The U.S.-Mexico-Canada Free Trade Agreement
incorporates the substantive obligations of the World
Trade Organization (WTO) Agreement on Technical
Barriers to Trade (“TBT Agreement”). See Agreement
Between the United States of America, the United
Mexican States, and Canada (July 1, 2020), Ch. 11,
https://ustr.gov/trade-agreements/free-trade-agreeme
nts/united-states-mexico-canada-agreement/agreeme
nt-between. The TBT Agreement requires that a
member state’s regulatory measures affecting trade
not discriminate, not restrict trade more than
necessary, support a legitimate objective, and have
scientific support. See id. arts. 2.1, 2.2, and 3.
Proposition 12 violates those treaty obligations. To
begin, it lacks scientific support. California’s own
notice of its proposed regulation to implement
Proposition 12 acknowledges that “[t]here are no
quantitative studies that document or measure the
effect of purchasing . . . whole pork meat from farms
[sic] animals not confined in a cruel manner
for people in California.” Proposed Regulations–
Animal
Confinement,
CDFA,
at
12,
https://www.cdfa.ca.gov/ahfss/pdfs/regulations/Anim
alConfinement1stNoticePropReg_05252021.pdf. The
notice also states that “[t]his proposal does not
directly impact human health and welfare of
20
California residents, worker safety, or the State’s
environment.” Id. at 6, 12. And California
acknowledged
that
Proposition
12’s
space
requirements “are not . . . accepted as standards
within the scientific community to reduce human
food-borne illness” or “other human or safety
concerns,” or “drawn from specific industry
standards.” Pet. App. 75a-76a.
Proposition 12 is also more trade-restrictive than
necessary to further California’s stated goal of “prevent[ing] animal cruelty.” Pet. App. 37a. Canada is a
world leader in its balanced approach to animal welfare; its animal-welfare regulations were developed
with input from a broad group of stakeholders. Rather
than supplant those guidelines with its own, California could allow for an equivalency arrangement with
Canada, stating that compliance with the Code of
Practice constitutes compliance with Proposition 12.
But California has chosen conflict over comity: bullying Canadian and Mexican producers to disregard
their own national standards, upend their production
streams, and incur significant costs, all to continue
trading with one populous State.
Congress repealed a federal statute that imposed
similarly burdensome requirements on the trade of
pork products between U.S., Canada, and Mexico. The
mandatory country-of-origin labeling law required
that labels for pork and beef products state the country in which the animal was born, raised, and slaughtered. As discussed above, that requirement saddled
meat processors and their supply chains with extraordinary economic burdens arising from the necessity to
segregate animals imported from Canada and Mexico.
21
The WTO Appellate Body found the U.S. law inconsistent with U.S. trade obligations. See Appellate
Body Reports, United States–Certain Country of
Origin
Labelling
(COOL)
Requirements,
WT/DS384/AB/R, WT/DS386/AB/R (adopted July 23,
2012); Decisions by the Arbitrator, United States–
Certain Country of Origin Labelling (COOL) Requirements, Recourse to Article 22.6 of the DSU by the
United States, WT/DS384/ARB, WT/DS386/ARB
(Dec. 7, 2015). The WTO later authorized Canada and
Mexico to impose trade sanctions on the United States
to compensate for the violation, but Congress repealed
the law before the sanctions were imposed. Consolidated Appropriations Act 2016, Public Law No. 114113, § 759 (Dec. 18, 2015). But now California’s Proposition 12 would similarly disrupt the integrated
North American pork industry and substantially burden free trade among the United States, Canada, and
Mexico.
California’s legislation has “offend[ed] [the United
States’] foreign trading partners.” Container Corp. of
Am. v. Franchise Tax Bd., 463 U.S. 159, 194 (1983).
Indeed, the Canadian Department of Agriculture and
Agri-Food has written to United States officials to
raise concerns with Proposition 12. See App. 1a-4a.
The Canadian Government explained that Proposition 12 “will have detrimental impacts on the integrated North American market, increasing costs and
reducing efficiencies across the industry, which risks
exacerbating food price inflation for consumers.”
App. 2a. Canada cited Proposition 12’s “severe negative impacts on thousands of producers outside of California, and even outside of the United States of America.” App. 2a-3a. And Canada urged “the United
States to ensure that all animal-welfare legislation
22
operates within the . . . international trade obligations of the United States under its free trade agreements.” App. 3a.
As the most populous U.S. State, California has
the economic might to force those who want to access
that large market to bend to its will. But economic
might is not constitutional power. California’s egregious overreach passes no conceivable balancing test.
This Court should recognize its unconstitutionality.
CONCLUSION
The Court should reverse the judgment of the court
of appeals.
Respectfully submitted.
ROY T. ENGLERT, JR.
Counsel of Record
LEE T. FRIEDMAN
JASON A. SHAFFER
KRAMER LEVIN ROBBINS
RUSSELL
2000 K Street, NW, 4th Floor
Washington, D.C. 20006
(202) 775-4500
renglert@kramerlevin.com
June 17, 2022
Counsel for Amici Curiae
APPENDIX
1a
APPENDIX A
Government
of Canada
Gouvernement
du Canada
April 26, 2022
Dr. Julie Callahan
Assistant USTR for Agricultural Affairs and
Commodity Policy
United States Trade Representative
Jason Hafemeister
Acting Deputy Under Secretary for Trade and
Foreign Agricultural Affairs
United States Department of [sic]
Re: Proposition 12 in California
Dear Dr. Callahan and Mr. Hafemeister,
In light of the decision by the U.S. Supreme Court
on March 28, 2022, to grant certiorari to the case
brought by the National Pork Production Council and
the American Farm Bureau Federation against California’s Proposition 12, Canada would like to take this
opportunity to raise its concerns with this legislation.
The Government of Canada and Canadian farmers
take animal welfare seriously. In fact, our commitment to the welfare of farmed animals is evidenced by
the development of Canada’s Comprehensive Codes of
Practice for the care and handling of farm animals
that takes into account a full suite of measures to ensure the safety and comfort of farm animals. Canada
considers this holistic approach to be the best way to
ensure the comfort and well-being of animals. In scientific and industry expert circles, it has long been
acknowledged that welfare is more complex than just
housing and an animal’s physical accommodation. In
2a
fact, focusing solely on that one area may lead to poor
welfare in other aspects of the animal’s well-being
(e.g., being free from hunger, thirst, malnutrition,
pain, injury or distress).
Canada is concerned about the patchwork of legislation and regulations that is being enacted by several
U.S. states, including in the large California market,
which differs slightly each from the other, both in
housing requirements as well as certification requirements. The various legislation, regulations and standards in the various states will have detrimental impacts on the integrated North American market, increasing costs and reducing efficiencies across the industry, which risks exacerbating food price inflation
for consumers. Not only will this impact negatively on
the profitability and viability of the sector as well as
affordability for consumers, but Canada is also concerned that these additional costs and disruptions to
the integrated North American market will make
the United States and Canada less competitive relative to other nations and trading blocs. A single, federal measure could better facilitate market integration and efficiencies, while pursuing the same policy
objective.
Canada is also concerned about the impact and
precedent of legislation such as Proposition 12 that
takes such a prescriptive approach to one element of
animal care, which will have severe negative impacts
outside the state creating the legislation. According to
California’s own statistics, the implementing regulations will apply to zero veal producers and an extremely small number of pork and liquid egg producers within California. However, it will have severe
negative impacts on thousands of producers outside of
3a
California, and even outside of the United States of
America.
Canada continues to urge the United States to ensure that all animal welfare legislation operates
within the parameters of the international trade obligations of the United States under its free trade
agreements. Canada would also like to highlight that
if California considers any flexibility in the operation
of its Proposition 12 implementing regulations that
any such flexibility must apply equally to foreign and
domestic actors.
Thank you for the opportunity to note our concerns
with Proposition 12 in California. If you have any
questions, please direct them to the Canadian Embassy in Washington, D.C.
Thank you,
Michelle Cooper
/s/ Michelle Cooper
Director General, Market Access Secretariat
Agriculture & Agri-Food Canada
Digitally signed by Cooper, Michelle
Date: 2022.04.27
13:13:33-04’00’
Doug Forsyth
/s/ Doug Forsyth
Director General, Market Access
Global Affairs Canada
Digitally signed by Forsyth, Doug
Date: 2022.04.26
16:45:28-04’00’
4a
CC:
Nadia Bourély, Minister Counsellor (Economic
and Trade Policy), Embassy of Canada in
Washington, D.C.
Rana Sarkar, Consul General, Consulate of
Canada in San Francisco
Ethan Holmes, Director of Private Sector
Engagement, United States Trade
Representative
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.