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.

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 AMICI CURIAE

SMALL AND INDEPENDENT FARMING BUSINESSES,

STATE FARMERS UNIONS, AND FARM ADVOCACY

ORGANIZATIONS IN SUPPORT OF RESPONDENTS

JAMIE CROOKS

COUNSEL OF RECORD

RUCHA DESAI

FAIRMARK PARTNERS, LLP

1825 7TH STREET, NW

WASHINGTON, DC 20001

(619) 507-4182

JAMIE@FAIRMARKLAW.COM

AUGUST 15, 2022

SUPREME COURT PRESS

COUNSEL FOR AMICI CURIAE

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

SUMMARY OF THE ARGUMENT ........................... 6

ARGUMENT ............................................................... 8

I.

PROPOSITION 12 IS CONSISTENT WITH MARKET

GROWTH AND ROBUST COMPETITION ................. 8

A. The Largest Pork Integrators Have

Highly Consolidated the Pork Industry,

Inhibiting Competition and Innovation ..... 8

B. There is a Growing Demand for CrateFree Pork, but the Integrators Currently

Control Access to the Market ................... 13

C. Far from Causing Greater Market Concentration, Proposition 12 is Likely to

Facilitate Competition in an Otherwise

Concentrated Market ............................... 19

II. THE DORMANT COMMERCE CLAUSE DOES NOT

PROTECT THE INTEGRATORS’ PREFERRED

WAY OF DOING BUSINESS ................................ 22

III. PETITIONERS’ WARNINGS ABOUT PROPOSITION

12’S POTENTIAL EFFECTS ARE INAPPOSITE

AND UNFOUNDED ............................................. 25

A. Petitioners’ Arguments About Supply

Shocks and Price Increases Are Not Fit

for Constitutional Consideration ............. 25

ii

TABLE OF CONTENTS – Continued

Page

B. Experience Teaches That Integrators Can

Supply Demand for Varied Pork Products

Without the Dire Consequences Petitioners Warn of ................................................ 29

CONCLUSION.......................................................... 33

iii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Dep’t of Revenue of Ky. v. Davis,

553 U.S. 328 (2008) ............................................. 6

Exxon Corp. v. Governor of Maryland,

437 U.S. 117 (1978) ................................... passim

United Haulers Ass’n v. Oneida-Herkimer

Solid Waste Mgmt. Auth.,

550 U.S. 330 (2007) ........................................... 27

OTHER AUTHORITIES

Allen Barkema & Mark Drabenstott,

Consolidation and Change in Heartland

Agriculture, Economic Forces Shaping the

Rural Heartland, Fed. Reserve Bank of

Kansas City (1996), https://perma.cc/

3SYV-RBHM............................................ 9, 20, 33

Andrea Shalal,

Meat Packers’ Profit Margins Jumped

300% During Pandemic – White House

Economics Team, REUTERS (Dec. 10, 2021,

4:20 PM), https://perma.cc/F6C7-JXJH ............ 26

Angela Huffman et al.,

Consolidation, Globalization, and the

American Family Farm, OCM (Aug.

2017), https://perma.cc/3HR8-3ELD ................. 10

Ashley Chang,

What Does Question 3 Mean for Animals

in Massachusetts?, The Humane League

(Feb. 3, 2022), https://perma.cc/9TAT7BLE .................................................................. 15

iv

TABLE OF AUTHORITIES – Continued

Page

Caius Z. Willingham and Andy Green,

A Fair Deal for Farmers, The Center for

American Progress (May 7, 2019), https://

perma.cc/J5RV-MUH3 ...................................... 11

California Dep’t Food & Agric.,

Prop 12 FAQ (Mar, 5, 2021),

https://perma.cc/2NVE-X4FT ............................ 19

Cargill, Inc., Press Release

Raising Antibiotic-Free Pigs (Jan. 1,

2015), https://perma.cc/ETT6-WHY2................ 32

Carrie Stadheim,

Grocers File Lawsuit Against Meatpackers

for Violating the Sherman Act, THE FENCE

POST (Jun. 15, 2020), https://perma.cc/

629F-83M4 ......................................................... 16

Chris Lisinski,

Mass. Legislature Passes Animal Welfare

Law Changes, Set to Ease Egg Supply

Fears, GBH NEWS (Dec. 20, 2021),

https://perma.cc/Y2J8-9ENB ............................ 15

Crate Free USA,

Majority of Pork-Buyers Prefer Retailers

That Don’t Use Gestation Crates (Jan. 12,

2021), https://perma.cc/39Q3-93DW ................. 14

David Jackson and Gary Marx,

Pork Producers Defend Gestation Crates,

but Consumers Demand Change,

CHICAGO TRIBUNE (Aug. 3, 2016, 4:15

AM), https://perma.cc/D8Q3-YX3V ................... 15

v

TABLE OF AUTHORITIES – Continued

Page

duBreton,

Our Ranges: Pork Worthy of Your

Convictions, https://perma.cc/K8NXH9BU (last visited Aug. 4, 2022) ...................... 21

Elizabeth Cox,

Lessons About Proposition 12 From Recent

Pork Producer Visits, Cal. Dep’t of Food

and Agriculture (2022), https://perma.cc/

Q9BA-9VAQ....................................................... 21

Ezra Klein,

Farmers and Animal Rights Activists Are

Coming Together to Fight Big Factory

Farms, VOX (Jul. 8, 2020), https://perma.

cc/9ADZ-LNVR .................................................. 12

Food & Water Watch et al.,

The Anticompetitive Effects of the

Proposed JBS-Cargill Pork Packing

Acquisition 14 (2015), https://perma.cc/

67LV-5JUH........................................ 8, 10, 11, 12

Food & Water Watch,

The Economic Cost of Food Monopolies:

The Hog Bosses (May 2020), https://

perma.cc/F56Q-S85V ......................................... 13

Food Safety & Inspection Service, USDA,

Animal Raising Claims Labeling

Guidelines Update 22-26 (Sept. 1, 2021),

https://www.fsis.usda.gov/sites/default/

files/media_file/2021-09/Animal-RaisingClaims-labeling-and-Non-GMO-slides2021-09-01.pdf ................................................... 31

vi

TABLE OF AUTHORITIES – Continued

Page

Gregory T. Gundlach & Riley T. Krotz,

Exclusionary Slotting Fees in Grocery

Retail 71, REFORMING AMERICA’S FOOD

RETAIL MARKETS (Yale Univ. June 2022),

https://perma.cc/49B3-ACMP............................ 18

House Select S. Comm. on the Coronavirus

Crisis, Staff Report (Comm. Print 2022),

https://perma.cc/WZ62-MEDL .................... 25, 26

Legislative Analyst’s Office,

Proposition 12, The California

Legislature’s Nonpartisan Fiscal and

Policy Advisor (Nov. 6, 2018), https://

perma.cc/9S77-FFTV ......................................... 27

Lynne Curry,

Could Crate-Free Pork Become the New

Industry Standard?, CIVIL EATS (Oct. 26,

2020), https://perma.cc/YZH6-LQBS ................ 15

Mary K. Hendrickson, et al.,

The Food System: Concentration and Its

Impacts (Nov. 19, 2020), https://perma.cc/

JAZ7-KNCB ....................................................... 19

Matthew Perlman,

Pork Buyers Say ‘Essential’ Tag Bolsters

Their Antitrust Case, LAW360 (May 12,

2020, 6:28 PM), https://perma.cc/GM6EJBUB.................................................................. 28

Miles McEvoy,

Organic 101: What the USDA Organic

Label Means, U.S.D.A. (Mar. 13, 2019),

https://perma.cc/Z6ML-V8BB ........................... 30

vii

TABLE OF AUTHORITIES – Continued

Page

Natasha Daly,

California Voted to Improve Pig Welfare.

the Pork Industry Is Facing a Reckoning.,

NATIONAL GEOGRAPHIC (Aug. 13, 2021),

https://perma.cc/TJ8N-GQ5R............................ 22

Nina Lakhani et al.,

Investigation Shows Scale of Big Food

Corporations’ Market Dominance and

Political Power, THE GUARDIAN (Jul. 14,

2021, 6:00 AM), https://perma.cc/FP32JCCT ............................................................ 16, 17

North Country Smokehouse,

Making Prop 12 Compliant Pork

Accessible, PR NEWSWIRE (Sept. 20, 2021,

12:42 PM), https://perma.cc/FR5P-AT7E ......... 14

Scott Horsley,

A Handful Of Big Meat Packing

Companies May Be Pushing Up The Price

Of Groceries, NPR (Sept. 13, 2021, 6:45

PM), https://perma.cc/E9L2-KYUU .................. 13

Smithfield Foods Inc., Press Release

Smithfield Foods Introduces Pure Farms

Antibiotic-Free Product Line, NATIONAL

HOG FARMER (Feb. 21, 2017), https://

perma.cc/8EXV-YUGM ..................................... 31

Sophie D’Anieri & Charlie Mitchell,

Exclusionary Slotting Fees in Grocery

Retail, REFORMING AMERICA’S FOOD

RETAIL MARKETS (Yale Univ. June 2022),

https://perma.cc/49B3-ACMP............................ 17

viii

TABLE OF AUTHORITIES – Continued

Page

Tyson Foods, Inc., Press Release,

Tyson to Help Meet Growing Demand for

U.S. Pork by Prohibiting Ractopamine

Use (Oct. 17, 2019), https://perma.cc/

WYN9-D9GT...................................................... 33

Wade Hanson, Technomic & ASPCA

Understanding Retailers’ Animal Welfare

Priorities (2018), https://perma.cc/ZRL5P587 ................................................................... 14

Wayne Pacelle,

National Legislation Introduced to End

Gestation Crates in Pig Industry, Center

for a Humane Economy (Mar. 10, 2022),

https://perma.cc/WW49-TCHN ......................... 15

1

INTEREST OF AMICI CURIAE1

Amici curiae are small and independent farming

businesses, state farmers unions, and farm advocacy

organizations. Amici respectfully submit this brief in

support of Respondents. Amici each has extensive experience with the farming practices at issue in this

litigation, and each believes that Proposition 12 is a

farmer-friendly statute that protects animal welfare

while providing important new production and marketing opportunities to family farmers. Moreover, as

discussed in more detail herein, amici strongly disagree

with many of Petitioners’ characterizations about Proposition 12’s likely effects on the pork industry and the

farmers who supply it. As organizations and businesses

who have operated in the pork industry for decades,

or that advocate on behalf of American pork farmers,

amici’s perspective will aid the Court’s understanding

of how Proposition 12 will impact the Nation’s farmers.

Amicus Socially Responsible Agriculture Project

(SRAP) has, for more than 20 years, served as a mobilizing force to help communities protect themselves from

the damages caused by industrial livestock operations

and to advocate for a food system built on regenerative

practices, justice, democracy, and resilience. SRAP’s

team includes technical experts, independent family

farmers, and rural residents who have faced the threats

of factory farms in their communities. When asked for

1 Counsel for amici state that no counsel for a party authored

this brief in whole or in part, and no person other than amici or

their counsel made any monetary contribution intended to fund

the preparation or submission of this brief.

2

help, SRAP offers free support, providing communities

with the knowledge and skills to protect their right to

clean water, air, and soil and to a healthy, just, and

vibrant future.

Amicus Farm Aid is a nonprofit organization

whose mission is to keep family farmers on the land.

Since the first Farm Aid concert in 1985, Farm Aid has

raised $64 million to support its work to help farmers

thrive, expand the reach of the Good Food Movement,

take action to change the dominant system of industrial

agriculture, and promote food from family farms. Farm

Aid believes fair and competitive markets are necessary

for thriving family farms, healthy rural communities,

and clean water and air.

Amicus Indiana Farmers Union works to protect

and enhance the economic well-being and quality of

life of family farmers. Indiana Farmers Union is a

home for producers who are committed to conserving

Indiana’s natural bounty.

Amicus Iowa Farmers Union’s members have

worked together since 1915 to strengthen the independent family farm through education, legislation and

cooperation and to provide Iowans with sustainable

production, safe food, a clean environment, and healthy

communities. Iowa Farmers Union is a grassroots

member organization of family farmers and ranchers,

advocates, and consumers committed to promoting

family agriculture in Iowa.

Amicus Northwest Farmers Union represents

farmers in Idaho, Oregon, and Washington. It focuses

on advocating for local, state, and federal policies that

help socially and environmentally responsible farms

do what they do best: provide their local communities

3

with delicious, nutritious food while benefiting the

local ecosystem.

Amicus Pennsylvania Farmers Union (PFU) has

been the voice of family farmers, rural residents and

consumers across the state since its founding. PFU

believes the needs of Pennsylvania’s farm economy are

every bit as important as the policy priorities of Wall

Street and Corporate America.

Amicus American Grassfed Association supports,

advocates, and promotes American grass-fed and

pasture-based farms and ranches from the farm to the

marketplace and in government policy, by maintaining a

credible, transparent national standard for animals

humanely raised on pasture and partnering to

support rural economies.

Amicus Family Farm Defenders’ (FFD) mission is

to create a farmer-controlled and consumer-oriented food

and fiber system, based upon democratically controlled

institutions that empower farmers to speak for and

respect themselves in their quest for social and economic justice. To this end, FFD supports agroecology,

farm & food worker rights, racial justice, animal welfare,

consumer safety & right to know, fair trade—both

globally and domestically—as well as food sovereignty.

Amicus Farm Action leads the fight against monopolistic corporate control over our food and farming

system. Farm Action represents farmers, ranchers,

rural communities, workers, policymakers, advocates,

and anyone who eats.

Amicus Institute for Agriculture and Trade Policy

(IATP) is a nonprofit that works locally and globally

at the intersection of policy and practice to ensure fair

and sustainable food, farm, and trade systems. IATP

4

aims to reduce the harmful impacts of industrialized

animal agriculture and promote regenerative systems

based on agroecology principles.

Amicus the National Sustainable Agriculture

Coalition (NSAC), founded in 2009, is an alliance of

130-plus member organizations and their combined

2+ million members. NSAC advocates for federal policy

reform to advance the sustainability of agriculture,

food systems, natural resources, and rural communities.

NSAC works to advance farming opportunities for

independent family farmers by advocating for federal

policies that remove barriers they face, including the

inability to compete with large farms and corporate

interests for coveted farmland or lucrative markets.

Amicus the Organic Farmers Association (OFA) is

a nonprofit membership organization that represents

U.S. certified organic farmers. OFA’s mission is to

provide a strong and unified national voice for domestic

certified organic producers, by supporting a farmer-led

national organic farmer movement and national policy

platform, and facilitating collaboration and leadership

among state, regional, and national organic farmer

organizations.

Amicus Callicrate Pork is a pork production

company that is part of Callicrate Cattle Company.

Callicrate Pork’s meat is regeneratively and ethically

raised and processed on-farm.

Amicus Gunthorp Farms specializes in quality

meat that is a favorite among some of the best chefs

in the Midwest. All of Gunthorp Farms’ animals are

raised on pasture without the use of antibiotics. Gunthorp Farms has an on-farm USDA-inspected processing plant where it harvests, processes, and packages

5

all of its animals before delivering to upscale restaurants

and retailers.

Amicus North Country Smokehouse is a third

generation, family-owned smokehouse located in

Claremont, New Hampshire. Its mission is to make

better-for-you pork accessible to everyone through its

conscious and concerted agri-food system. North Country

Smokehouse has been handcrafting artisanal smoked

meats for more than a century. Its vertically integrated

operation includes more than 400 family-farms, grain

mills, husbandry, harvesting, and further processing

facilities. Every farm is audited on a seasonal, annual

rotation, and certified by Global Animal Partnership,

Certified Raised & Handled, and USDA Organic.

Amicus Ranch Foods Direct was established in

Colorado Springs in 2000 to sell high-quality, naturally

raised beef directly to customers. Since then, it has

grown into a prominent, well-respected marketing outlet

in the community for small farmers and food producers

selling a wide range of meat and other goods from

throughout the region.

Amicus Walnut Hill was established in Sharpsville, Pennsylvania in 2008 by Michael, Karen, and

Amelia Kovach to help reconnect people to the food

they eat. The high-quality meat it produces come from

humanely raised animals.

Amicus White Oak Pastures is a six-generation,

152-year-old family farm in Bluffton, Georgia. Its

farming practices focus on regenerative land management, humane animal husbandry, and revitalizing its

rural community. White Oak Pastures uses a zerowaste production system that utilizes each part of the

6

animals, which it pasture-raises and hand-butchers

on its farm.

SUMMARY OF THE ARGUMENT

This case represents an effort by the largest pork

processing companies in the U.S. to maintain their

steadfast grip on an industry they worked systematically to consolidate and control. Proposition 12 does

not discriminate against out-of-state commerce, nor does

it enact the kind of “economic protectionism” this Court’s

Dormant Commerce Clause cases typically involve.

See, e.g., Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328,

337-38 (2008). Yet Petitioners challenge California’s

popularly enacted measure—voted in by a two-thirds

majority—because they view it as a threat to the longstanding dominance of a small group of multinational

agribusinesses. Unwilling to compete on the merits in

the new and growing market for crate-free pork with

smaller farmers who comply with Proposition 12, Petitioners instead ask this Court to nullify Californians’

decision to regulate how pork is sold within their own

borders. The Court should reject Petitioners’ efforts to

eliminate competition through constitutional litigation.

Proposition 12 was enacted against the backdrop

of a growing demand for humanely raised meat,

including crate-free products. Small farmers who have

capitalized on the burgeoning consumer preference for

crate-free pork are well-situated to meet the additional

demand that Proposition 12 creates. Indeed, in the four

years since Proposition 12 passed, independent family

7

farmers and food businesses have invested in substantial and profitable adjustments to their business model

in reliance on the law. Some have modified production

methods, others have expanded their supply chain to

reach California, and still others have spent resources

informing consumers that their products comply with

Proposition 12. Independent farmers have been able

to position themselves as healthy competitors in the

market for pork sold in California.

The Court should be troubled by the implication

of Petitioners’ position—because of the sprawling, highly

integrated supply chain networks they have created,

no State may regulate the products sold within its

borders without running afoul of the Dormant Commerce Clause. If the Court accepts Petitioners’ invitation

and constitutionally insulates vast, vertically integrated

supply chains from state regulation impacting their

production and distribution, Petitioners—and soon,

one assumes, dominant players in other industries—

will be beyond the effective reach of the States. The

Court should reject Petitioners’ position that they are

too big to govern, particularly since it is long settled that

the nationwide nature of an industry does not prevent

a State from regulating it in a non-discriminatory

way. E.g., Exxon Corp. v. Governor of Maryland, 437

U.S. 117, 128 (1978) (“[W]e cannot adopt appellants’

novel suggestion that because the economic market

for petroleum products is nationwide, no State has the

power to regulate the retail marketing of gas.”).

A ruling in Petitioners’ favor would grant a constitutional privilege to multinational meatpacking giants

in a heavily consolidated industry, and stifle healthy

competition and enterprise among America’s small businesses and farmers. It would also deprive California’s

8

citizens of their right to enact laws to protect the health

and welfare of humans and animals within the State’s

borders. For these reasons, described more fully herein,

the Court should affirm the ruling below.

ARGUMENT

I.

PROPOSITION 12 IS CONSISTENT WITH MARKET

GROWTH AND ROBUST COMPETITION.

A. The Largest Pork Integrators Have

Highly Consolidated the Pork Industry,

Inhibiting Competition and Innovation.

The U.S. meatpacking industry has steadily and

substantially consolidated over the last 50 years.

Between 1948 and 2015, four million U.S. farms

disappeared even though total farm output doubled

during the same period. Consolidation has been particularly stark in the pork industry: In just 19 years,

between 1993 and 2012, the United States lost about

70% of its hog operations.2 The result is that, today,

four multinational corporations—Smithfield Foods,

Inc., Tyson Foods, Inc., JBS USA Holdings, Inc., and

Cargill Inc.—control a whopping 66% of the hogprocessing market. These four entities, which Petitioner

National Pork Producers Council represents as their

trade association, have vertically integrated nearly

2 Food & Water Watch et al., The Anticompetitive Effects of the

Proposed JBS-Cargill Pork Packing Acquisition 14 (2015) (hereinafter “JBS-Cargill White Paper”), https://perma.cc/67LV-5JUH.

9

every aspect of the pork production process; they are

thus commonly referred to as “integrators.”3

Through an aggressive campaign of mergers,

acquisitions, joint ventures, and captive supply contracts

that favor ever-larger farming operations, these multinational integrators generally control every aspect of

the supply chain—from owning and breeding live

hogs, processing and selling live pork, and supplying

retailers with the vast majority of pork sold on grocery

shelves. In doing so, the integrators have essentially

eliminated any ability of independent farmers to

compete on quality or through innovation, which has

had the effect of “shrinking the number of farms doing

business in the region’s rural communities.”4

A policy brief by the Organization for Competitive

Markets aptly summarized the effect the integrators’

domination has had on American farmers and farm

workers:

Corporate consolidation has had a devastating

impact on small businesses. Between 1990

and 2016, federally inspected slaughterhouses

decreased by 36 percent. * * * Jobs and wages

have disappeared along with the slaughterhouses. According to the Bureau of Labor

Statistics, the animal slaughtering and processing industry employed a total of 506,000

people in 2005. By May 2016, the industry

3 Notably, the same four integrators also dominate several other

agricultural sectors.

4 Allen Barkema & Mark Drabenstott, Consolidation and Change

in Heartland Agriculture, Economic Forces Shaping the Rural

Heartland 74-75, Fed. Reserve Bank of Kansas City (1996),

https://perma.cc/3SYV-RBHM.

10

employed only 80,780 people and their average

wage was down to half of that of all manufacturing jobs in the U.S. * * * Farmers and

ranchers have seen farm income decline along

with the rise of corporate consolidation. Since

2013, U.S. farm income has dropped by $43.6

billion.5

The integrators’ aggressive consolidation campaign

has thus effected a massive transfer of wealth from

rural, independent farmers to a few multinational

corporations.

Given the integrators’ continually increasing purchasing power, many smaller pork producers who

used to operate independently have been forced to

enter into captive production contracts with particular

integrators. Such contracts “essentially convert

independent farmers that own their livestock into

contract employees that perform services for the porkpacking industry.”6 In the typical contract scenario,

the integrator retains ownership over hogs and feed,

but outsources to the farmer the tasks of growing them

and managing the waste, requiring the farmer to

provide the intensive labor and infrastructure necessary

to do so. The farmer thus cedes control of his own land

and livestock to the integrators, which dictate every

aspect of how he does his work—what (and how much)

he feeds the hogs, as well as how he houses them, cleans

them, and medicates them. The result is that the

integrator owns all the elements of the supply chain

5 Angela Huffman et al., Consolidation, Globalization, and the

American Family Farm 6 (Aug. 2017) (emphasis added), https://

perma.cc/3HR8-3ELD.

6 JBS-Cargill White Paper, supra note 2, at 14.

11

that appreciate in value (live hogs, processed pork),

and the farmer is responsible for the elements that

depreciate in value (housing, manure, equipment).

This integrator-manufactured system is terrible for

farmers. Contract farmers are often left poorly

compensated and saddled with debt, while the integrators have the power and incentive to “extract lower

prices and distort and conceal prices.”7 Exacerbating

the situation is the geographic segmentation of the

market; integrators often have a regional monopoly,

so in many rural communities, a hog farmer only has

one integrator he can contract with, thus further

depressing his ability to negotiate on price or other

contractual terms.8 A Purdue University study estimated that the more concentrated (and less competitive)

a market is, the less farmers receive for live animals.9

Between 1988 and 2012, when contract farming

7 Id., at 14; Caius Z. Willingham and Andy Green, A Fair Deal

for Farmers, The Center for American Progress (May 7, 2019),

(“With only a handful of processors with which they can do

business, hog farmers have little choice but to enter into contracts

that compensate them through opaque and often manipulatable

pricing formulas that saddle farmers with burdensome terms and

quite often large levels of debt.”), https://perma.cc/J5RV-MUH3.

8 JBS-Cargill White Paper, supra note 2, at 5 (“In some cases,

there is only one buyer at hog auctions as a result of market

consolidation.”).

9 Id., at 6 (noting that Purdue study “estimated that a marketplace

with 20 equally sized pork packers (akin to the national market

in the late 1980s) would pay about 5 percent less than a perfectly

competitive marketplace; a marketplace with eight firms would

pay 18 percent less; and if there were only four firms, they would

pay 28 percent less than a perfectly competitive market.).

12

proliferated, the market share of the top pork integrators increased from 34 percent to 64 percent, while

prices farmers were paid for their hogs fell 18%.10

The rise in production contracts also perpetuates

the homogeneity of the production model: The only

way contract farmers can compete with others using

the same contract production methodology is “to pack

more animals into [their] sheds, pump them fuller of

antibiotics so they don’t die from infections that flourish

amid overcrowding, raise breeds that live lives of pain

but grow with astonishing speed, create massive manure

lagoons that poison streams and turn air acrid.”11 The

market power integrators wield has thus nearly eliminated the opportunity for alternative, non-integrator

controlled supply chains to develop.

The integrators’ near-total control over every

aspect of the production process has also harmed

consumers, who are left with no meaningful choice of

brands and pork products. Since demand for food is

inelastic, “concentrated market power in the food sector

can distort competition, raise prices and erode equity

more significantly than sectors where consumers are

more responsive to prices.”12 Even small price increases

significantly affect consumers, and when aggregated,

lead to considerable transfers of wealth to pork integrators. As of May 2022, small farmers were earning $2

less per pound of pork than in 1982; consumers, however,

10 Id., at 7.

11 Ezra Klein, Farmers and Animal Rights Activists Are Coming

Together to Fight Big Factory Farms, VOX (Jul. 8, 2020), https://

perma.cc/9ADZ-LNVR.

12 JBS-Cargill White Paper, supra note 2, at 20.

13

are only paying $1 less per pound at checkout. Pork

processors capture this other dollar in reduced earnings

to farmers.13 And though farmers are earning less,

grocery prices have increased because of a highly

concentrated industry that leaves few options.14

Thus, over the past five decades—and especially

during the past two—the pork industry has transformed

from one in which truly independent farmers competed

in the market on price, quality, and product variation

into a highly consolidated, vertically integrated system

that pays farmers less and reduces consumer choice.

The dominant integrators have reaped the benefits

of the homogenization they initiated and perpetuate,

which is why they now seek to stifle the new competition Proposition 12 will engender.

When one understands the structure of today’s

pork production market, it is easy to understand why

the industry’s dominant players abhor Proposition

12—it threatens to disrupt the dominance of a few,

massive corporations that have enjoyed unprecedented

profits due to their vertical and horizontal integration.

B. There is a Growing Demand for CrateFree Pork, but the Integrators Currently

Control Access to the Market.

In recent years, demand for crate-free pork has

significantly increased in the U.S. According to a 2021

Harris Poll Survey, 66% of Americans consider gestation

13 Food & Water Watch, The Economic Cost of Food Monopolies:

The Hog Bosses (May 2020), https://perma.cc/F56Q-S85V.

14 Scott Horsley, A Handful Of Big Meat Packing Companies May

Be Pushing Up The Price Of Groceries, NPR (Sept. 13, 2021, 6:45

PM), https://perma.cc/E9L2-KYUU.

14

crates unacceptable, while 73% are more likely to buy

pork products from companies committing to end

confinement of pregnant pigs.15 A 2018 industry survey

and report found that more than “70% of supermarkets

stocking products with claims about improved animal

welfare report that sales from these products have

increased” in the studied three-year period; the report

also projected a demand curve similar to that for organic

products, “with increasing awareness creating a strong

burst of consumer demand, pushing these products to

the forefront of retailer and supplier plans.”16

Small producers have taken stock of this growing

demand. For instance, amicus North Country Smokehouse, an independent meat processor that distributes

nationally and sources exclusively from farms that are

certified as humanely raised, noted in a September

2021 press release:

Consumers’ growing demand for the ethical

treatment of animals has led to a massive

shift in the supply chain, with an increasing

amount of humanely raised meats claiming

their rightful space on retail shelves.17

Proposition 12 reflects this increasing demand, as

two thirds of California voters voiced their preference

15 Majority of Pork-Buyers Prefer Retailers That Don’t Use

Gestation Crates, Crate Free USA (Jan. 12, 2021), https://

perma.cc/39Q3-93DW.

16 Wade Hanson, Technomic & ASPCA, Understanding Retailers’

Animal Welfare Priorities 2 (2018), https://perma.cc/ZRL5-P587.

17 Making Prop 12 Compliant Pork Accessible, PR NEWSWIRE

(Sept. 20, 2021, 12:42 PM), https://perma.cc/FR5P-AT7E.

15

for crate-free product.18 And Californians are not alone.

About ten states so far have passed laws to end or limit

confinement of sows.19 For example, in 2021, Massachusetts passed a similar bill, An Act to Prevent Cruelty

to Farm Animals, that, like Proposition 12, was supported by family farmers.20 Notably, after spending

millions of dollars unsuccessfully opposing this measure,

the integrators ultimately complied with Massachusetts’ modest new requirements.21

Big retailers and fast-food companies have also

taken notice of the growing demand for humanely

raised pork. Consumers’ “growing desire for crueltyfree animal handling has influenced food retailers,

who in turn are forcing the U.S. industry to change its

livestock husbandry practices.”22 In recognizing their

customers’ evolving preferences, large companies like

Burger King, Safeway, and Kmart, among others, have

18 Lynne Curry, Could Crate-Free Pork Become the New Industry

Standard?, CIVIL EATS (Oct. 26, 2020), https://perma.cc/YZH6LQBS.

19 Wayne Pacelle, National Legislation Introduced to End Gestation

Crates in Pig Industry, Center for a Humane Economy (Mar. 10,

2022), https://perma.cc/WW49-TCHN.

20 Chris Lisinski, Mass. Legislature Passes Animal Welfare Law

Changes, Set to Ease Egg Supply Fears, GBH NEWS (Dec. 20,

2021), https://perma.cc/Y2J8-9ENB.

21 Ashley Chang, What Does Question 3 Mean for Animals in

Massachusetts?, The Humane League (Feb. 3, 2022), https://

perma.cc/9TAT-7BLE.

22 David Jackson and Gary Marx, Pork Producers Defend Gestation

Crates, but Consumers Demand Change, CHICAGO TRIBUNE (Aug.

3, 2016, 4:15 AM), https://perma.cc/D8Q3-YX3V.

16

committed to eliminating use of gestation crates.23

These major players primarily buy their pork products

from the largest integrators, who have made no public

indication that they are unwilling or unable to comply

with these new demands from some of their largest

customers.

Independent farmers are willing to meet this

demand, and in doing so, can access some of the wealth

and power that has accumulated only for pork integrators, and redistribute it back to local communities,

businesses, and families.

However, their eagerness and ability to meet this

demand is insufficient, because integrators currently

wield their market power to determine which products

get shelf space. Heavy consolidation in the entire food

supply chain—“from seeds and fertilizers to slaughterhouses and supermarkets to cereals and beers”24—

allows a few multinational companies to limit independent farmers’ access to the market; corporate integrators

determine which products are distributed through

wholesalers.25 Corporate integrators exert influence

over which products are distributed through the wholesale system and ultimately to grocery stores in part

23 See BIO at 4-5.

24 Nina Lakhani et al., Investigation Shows Scale of Big Food

Corporations’ Market Dominance and Political Power, THE

GUARDIAN (Jul. 14, 2021, 6:00 AM), https://perma.cc/FP32-JCCT.

25 Carrie Stadheim, Grocers File Lawsuit Against Meatpackers

for Violating the Sherman Act, THE FENCE POST (Jun. 15, 2020),

(noting allegation by grocery stores in a price-fixing lawsuit that

the meatpackers’ “gatekeeping role has enabled them to collusively

control both upstream and downstream beef pricing”), https://

perma.cc/629F-83M4.

17

through slotting fees, payments the integrators make

to a retailer in exchange for shelf space.26

Given the hefty profits retailers make through slotting fees, “the supplier is the [grocery] store’s real

customer,”27 generating far more revenue for grocers

than independent competitors seeking to access shelf

space. Contributing to the lack of market access is the

increasing consolidation in the wholesale food and

retail industry, which further amplifies the integrators’

influence through slotting fees. Large food companies

“can lord over entire categories,” and given the “opacity”

of negotiations with retailers, corporate integrators

exert downstream influence over distribution and

display of food items.28 Despite the seemingly diverse

array of brands at grocery stores, “most of our favorite

brands are actually owned by a handful of food giants,

including Kraft Heinz, General Mills, Conagra,

Unilever, and Delmonte.”29 Thus, even if an independent farmer, who produces crate-free pork, saw the

growing demand of humane pork, it would be difficult

to actually sell to customers, given the layers of

obstacles the farmer faces.30

26 Sophie D’Anieri & Charlie Mitchell, Exclusionary Slotting

Fees in Grocery Retail 63, REFORMING AMERICA’S FOOD RETAIL

MARKETS (Yale Univ. June 2022), https://perma.cc/49B3-ACMP.

27 Id.

28 Id., at 65.

29 Lakhani, supra note 22.

30 Lakhani, supra note 22 (“And then there’s the slotting fees—

payments by big-brand manufacturers for eye-catching product

placement. This makes it very hard for new independent brands

18

Another way in which multinational integrators

and other consolidated food companies influence retailer

offerings is through category management, a marketing

practice in which products are divided into categories

and managed as free-standing businesses.31 Dominant

manufacturers in a category (referred to as “category

captains”) often influence retail decisions related to

planning and management of a single category—

even with respect to competitor brands.32 Powerful

category captains can “affect[] what products are

available in the store, where products are located on

shelves, when they will be advertised, and at what prices

they will be offered to consumers.”33 This type of

“exclusionary conduct”—which “can impede competition, limit new entry, lessen consumer choice, reduce

product quality, and stifle product innovation”—has

increased in recent years, as category captains have

infiltrated meat, poultry, and seafood products, among

others.34

A Special Report to the Family Farm Action

Alliance found that this concentrated ownership

grants a few companies “the power to make decisions

in food and agriculture. Who decides where and what

to get a break. And when they do get a tiny foothold, it often

doesn’t last.”).

31 Gregory T. Gundlach & Riley T. Krotz, Exclusionary Slotting

Fees in Grocery Retail 71, REFORMING AMERICA’S FOOD RETAIL

MARKETS (Yale Univ. June 2022), https://perma.cc/49B3-ACMP.

32 Id.

33 Id.

34 Id.

19

food will be produced, who produces it and how, and

who will get to eat it?”35

Against this backdrop—where integrators control

not only the supply lines but also access to grocery

store shelves independent farmers would otherwise

fill—Proposition 12 has effectively opened up access to

the market by mandating that those who sell pork

within the state establish a traceable supply of pork.

“Compliance can be shown through written certification that pork meat originates from breeding sows

housed according to Proposition 12 confinement

standards.”36 This provides a regulatory incentive to

pork sellers to choose easily traceable supply chains,

like those many independent producers have developed.

Thus, where independent farmers struggled to meet

demand because of barriers to entry in the consolidated

pork and wholesale food industries, they now have a

better chance to compete.

C. Far from Causing Greater Market Concentration, Proposition 12 is Likely to

Facilitate Competition in an Otherwise

Concentrated Market.

While enacted to protect the health of Californian

consumers and rid the State’s markets of inhumane

products, Proposition 12 came with a major ancillary

benefit: It enhances opportunities for independent

farmers to successfully compete in the growing market

35 Mary K. Hendrickson, et al., The Food System: Concentration

and Its Impacts 1 (Nov. 19, 2020), https://perma.cc/JAZ7-KNCB.

36 California Dep’t Food & Agric., Prop 12 FAQ (Mar, 5, 2021),

https://perma.cc/2NVE-X4FT.

20

for crate-free pork.37 By solidifying California’s demand

for this product and facilitating the means for independent producers to bring crate-free pork to consumers,

Proposition 12 promotes much needed diversity in the

production model.

Independent farmers, who, until recently, had

been relegated to production contracts as their only

means of guaranteed income, have emerged as possible

contenders in this burgeoning market. Family farmers

may not have the same technology required for largescale industrialized production, but they are better

equipped to supply the specialty product market,

particularly where, as with Proposition 12, regulators

provide the means of inspecting to ensure and

document compliance with animal welfare standards.38

Rather than “drive further consolidation in the

industry,” as Petitioners (ironically) suggest, Br. of

Petitioners at 15, Proposition 12 is far more likely to

loosen the stranglehold the dominant integrators have

long held over pork production. For example, in June of

this year, Smithfield Foods closed its only California

pork processing plant, citing rising costs of business

in California. (Petitioners do not contend that such a

closure implicates the Dormant Commerce Clause,

because they do not challenge Proposition 12’s in-state

effects.) This exit from the California market of one of

the largest integrators inevitably introduces opportunities for smaller, more nimble farming operations

37 See also BIO at 4-5 (noting “industry practice is rapidly

changing in response to market demands” and citing Burger

King’s recent announcement that it is “committed to eliminating

the use of gestation crates for housing pregnant sows”).

38 Barkema, supra note 4, at 65.

21

to fill the void and produce the product Californians

have made clear they desire.

The enhanced competition Proposition 12 engenders

is already manifesting. Many farmers are investing

in new confinement systems to comply with Proposition

12.39 And many small farmers who were already

compliant—or who exceeded compliance—now have a

robust, well-defined market in which to sell their

product. For example, amicus Gunthorp Farms, an

Indiana operation that sells hogs across the country,

raises all of its hogs outdoors, meaning its sows are

housed outside of extreme forms of confinement. With

the passage of Proposition 12, there is now space in

the Californian market for Gunthorp Farms to sell its

hogs. As another example, many small farmers that

produce humanely raised pork—like amicus North

Country Smokehouse, based in New Hampshire—

actively market themselves as Proposition 12 compliant.40 North Country Smokehouse, and producers

like it, are already benefitting from Proposition 12.

Crate-free consumer preference can thus be an

essential component to the survival of America’s

small pork farmers. Proposition 12’s loudest critics are

companies running concentrated animal feeding operations; independent farmers who have long since

39 See generally Elizabeth Cox, Cal. Dep’t of Food and Agriculture,

Lessons About Proposition 12 From Recent Pork Producer Visits

(2022), https://perma.cc/Q9BA-9VAQ.

40 Our Ranges: Pork Worthy of Your Convictions, duBreton,

https://perma.cc/K8NX-H9BU (last visited Aug. 4, 2022).

22

adopted group housing have had no complaints.41

While it may be more expensive for multinational

agribusinesses to comply with Proposition 12, independent farmers—who by definition have fewer gestation

crates—are stepping up to the challenge, and are

positioning themselves as new, vibrant competitors

in the expanding market for crate-free pork.

II. THE DORMANT COMMERCE CLAUSE DOES NOT

PROTECT THE INTEGRATORS’ PREFERRED WAY

OF DOING BUSINESS.

Petitioners argue that Proposition 12 violates the

Dormant Commerce Clause because it would “disrupt[]

a national market,” Br. of Petitioner at 32, i.e., the

fully integrated and captive supply chain the largest

pork producers have erected. But Proposition 12 does

not target the integrators; it does not discriminate

against out-of-state commerce, nor does it enact the

kind of “economic protectionism” this Court’s Dormant

Commerce Clause cases typically involve. See, e.g.,

Dep’t of Revenue of Ky. v. Davis, 553 U.S. 328, 337-38.

Instead, it applies equally to all producers who wish

to access the California market. Petitioners’ primary

complaint, therefore, is that it will affect their preferred

mode of supplying pork more than it will affect their

putative competitors.

Yet the Court has recognized that a law creating

such an impact does not run afoul of the Dormant

Commerce Clause, and it has refused to substitute its

judgment for state lawmakers even where statutes

have an outsized effect on large, interstate companies.

41 Natasha Daly, California Voted to Improve Pig Welfare. the

Pork Industry Is Facing a Reckoning., NATIONAL GEOGRAPHIC

(Aug. 13, 2021), https://perma.cc/TJ8N-GQ5R.

23

In Exxon Corp. v. Governor of Md., 437 U.S. 117, for

example, the Court refused to strike down a Maryland

statute that prohibited producers and refiners of

petroleum products from operating retail service

stations within the State. A group of large, interstate

petroleum companies claimed that the statute

impermissibly burdened interstate commerce because

“the burden of [the] state regulation [only fell] on some

interstate companies.” Id., at 126. The Court

disagreed, holding that a statute that affects some

interstate producers more than others does not unduly

interfere with interstate commerce. Id. The Court

explained that even the withdrawal from the

Maryland market by some major refiners did not

demonstrate that the statute impermissibly burdened

interstate commerce. Id., at 127. The Court also recognized that independent producers could enter the

market to replace the supply lost by withdrawing

producers, just as producers here have and will continue

to enter the California market for pork to replace any

lost supply from any withdrawing integrators and

producers. The Court explained:

Some refiners may choose to withdraw entirely

from the Maryland market, but there is no

reason to assume that their share of the

entire supply will not be promptly replaced

by other interstate refiners. The source of the

consumers’ supply may switch from companyoperated stations to independent dealers, but

interstate commerce is not subjected to an

impermissible burden simply because an otherwise valid regulation causes some business to

shift from one interstate supplier to another.

24

Id. The Court further recognized that it was not within

its purview to evaluate a statute’s merits, only its

constitutionality:

[T]he Clause protects the interstate market,

not particular interstate firms, from prohibitive or burdensome regulations. It may be

true that the consuming public will be injured

by the loss of the high-volume, low-priced

stations operated by the independent refiners,

but again that argument relates to the wisdom

of the statute, not to its burden on commerce.

Id. at 127-28 (emphases added).

As in Exxon, the issue here is not whether Proposition 12 adequately protects the public health or

appropriately remedies the inhumane conditions in

which livestock are raised. This is particularly true

given that Proposition 12 applies to the largest integrators and the smallest independent farmer alike.

See id. at 126 n.16 (“The sales by independent retailers

are just as much a part of the flow of interstate

commerce as the sales made by the refiner-operated

stations.”). Thus, Petitioners’ complaint that the statute

will inordinately affect a small group of integrators

should not factor into the constitutional analysis. Id., at

127 (“The fact that the burden of state regulation falls

on some interstate companies does not, by itself,

establish a claim of discrimination against interstate

commerce.”).

25

III. PETITIONERS’ WARNINGS ABOUT PROPOSITION

12’S POTENTIAL EFFECTS ARE INAPPOSITE AND

UNFOUNDED.

A. Petitioners’ Arguments About Supply

Shocks and Price Increases Are Not Fit

for Constitutional Consideration.

Petitioners attempt to scare the Court with hypotheticals about supply shocks and cost increases that

will affect, among other groups, low-income communities and schools. See, e.g., Br. of Petitioners at 15.

But such pleas are properly directed to Congress or

state lawmakers, both of which can better make the

relevant economic judgments. And the Court should be

especially wary of constitutionalizing such policy considerations, because predictions about supply, demand,

and prices, like those Petitioners assert, often turn

out to be wrong. They should not serve as the basis for

rigid constitutional rules.

To take just one example, at the height of the

COVID-19 pandemic, the integrators successfully

lobbied the federal government to exempt the industry

from following normal COVID-19 worker safety protocols, citing the possibility of emergency meat shortages.42 But a May 2022 report from the House Select

Subcommittee on the Coronavirus Crisis determined

that the industry’s warnings of “an impending protein

shortage were flimsy if not outright false.”43 While

the largest integrators and industry associations

42 See generally House Select S. Comm. on the Coronavirus

Crisis, Staff Report (Comm. Print 2022), https://perma.cc/WZ62MEDL.

43 Id. at 1 (cleaned up).

26

issued these dire warnings to justify special treatment,

the reality was pork producers easily could have met

demand—in March 2020, the industry had approximately 622 million pounds of frozen pork on hand, “an

amount well above levels predating the pandemic.”44

In fact, during the first three quarters of 2020, foreignowned integrators Smithfield and JBS exported to

China 90 percent and 370 percent more, respectively,

than they had during the same period in 2017.45 And

despite citing increased labor costs as the justification

for the industry’s drastic price increases, the major

pork integrators have enjoyed record profits in each

year of the pandemic.46

At the end of the day, then, the integrators had

no problem meeting the surge in global demand

COVID-19 created—and profiting handsomely while

doing so. The Court should thus look skeptically on

Petitioners’ grim assertion that the adjustments Proposition 12 will require could threaten “the Nation’s food

security.” See Br. of Petitioners at 20.

So too should the Court refuse to credit Petitioners’

warnings that Proposition 12 will lead to higher

prices, for two reasons. First, like Petitioners’ concerns

about Proposition 12’s effect on supply, arguments

about whether a statute will or will not raise prices is

inapposite to any constitutional analysis. “[A]n evaluation of the economic wisdom of the statute * * * cannot

44 Id. at 10.

45 Id.

46 Andrea Shalal, Meat Packers’ Profit Margins Jumped 300%

During Pandemic – White House Economics Team, REUTERS

(Dec. 10, 2021, 4:20 PM), https://perma.cc/F6C7-JXJH.

27

override the State’s authority to legislate against what

are found to be injurious practices in their internal

commercial and business affairs.” Exxon, 437 U.S. at

124. Such arguments are best directed not to unelected

judges but to those considering whether to enact a

statute.

Second, and in any event, Petitioners did make

this very argument to California voters, who considered and rejected it. The opposition to Proposition 12

campaigned on purported increases in price, and the

ballot measure explained the possible fiscal side effects

of the law.47 Californians thus understood that Proposition 12 could cause them to spend more at the

grocery store. Still, two thirds of them chose to enact

the law.

The Court has held that when “the most palpable

harm” of a regulation (higher prices) is “likely to fall

upon the very people who voted for the laws,” the

Dormant Commerce Clause is not offended. United

Haulers Ass’n v. Oneida-Herkimer Solid Waste Mgmt.

Auth., 550 U.S. 330, 345 (2007) (“Here, the citizens

and businesses of the Counties bear the costs of the

ordinances. There is no reason to step in and hand local

businesses a victory they could not obtain through the

political process.”) (emphasis added). In United Haulers

Association, the Court held this to be true of ordinances

enacted by municipalities’ elected officials, id., at

337—it stands to reason that the principle is even

stronger where, as here, the very citizens who would

purportedly pay higher prices voted directly (rather

47 Proposition 12, Legislative Analyst’s Office, The California

Legislature’s Nonpartisan Fiscal and Policy Advisor (Nov. 6,

2018), https://perma.cc/9S77-FFTV.

28

than through their representatives) for the measure

at issue.

Notably, rather than the growing demand for

humanely raised pork products, the biggest driver of

price increases in recent years has been the integrators themselves, both by the consolidation described

above, supra Section I.A, and by withholding supply

and through purported collusion. The integrators

currently face myriad antitrust lawsuits for price-fixing,

which have already resulted in substantial settlements. These suits allege that Smithfield, JBS, Tyson,

and other large pork integrators conspired to inflate

prices by restricting output through coordinated supply

cuts, and through illicit information-sharing between

competitors.48 Whatever the end result of these

lawsuits, there is no dispute that, as the May 2022

House report concluded, in the meatpacking industry

there is “a high degree of coordination among

competitors.”49

These fundamental realities—most of which the

major integrators constructed and profit handsomely

from—are more directly related to how much farmers

earn and how much consumers pay for pork than one

State’s transitioning to a new, more humane production method.

48 Matthew Perlman, Pork Buyers Say ‘Essential’ Tag Bolsters

Their Antitrust Case, LAW360 (May 12, 2020, 6:28 PM), https://

perma.cc/GM6E-JBUB.

49 House Report, supra note 42, at 5.

29

B. Experience Teaches That Integrators

Can Supply Demand for Varied Pork

Products Without the Dire Consequences

Petitioners Warn of.

Petitioners also decry that Proposition 12 will cause

a nationwide conversion to crate free pork. See Br. of

Petitioners at 2 (“Proposition 12 will transform the

pork industry nationwide.”). As with their assertions

about supply shortages and price increases, this

concern is inapposite to the Dormant Commerce Clause

analysis, particularly since there is nothing burdensome

or discriminatory about producers or even other States

coming into conformance with Proposition 12. E.g.,

Exxon, 437 U.S. at 128 (“The evil that appellants

perceive in this litigation is not that the several States

will enact differing regulations, but rather that they

will all conclude that [provisions like Maryland’s

challenged statute] provisions are warranted. The

problem thus is not one of national uniformity.”).

But even if Petitioners’ concerns were cognizable,

they suffer another flaw: Their factual assertions are

simply unsupportable, as Petitioners conveniently

forget that there already exists a diversity of demand—

distinct from homogeneity of the production model—

in the pork industry. Before Proposition 12’s passage,

consumers were demanding organic pork, antibioticfree pork, or hormone-free pork (to name just a few

examples), and the large integrators have had no

problem serving this demand.

Independent of Proposition 12, pork processors

must meet various customer specifications for this

varying demand; organic, antibiotic free, hormone free

and crate-free pork (a demand that existed prior to

Proposition 12) are all already segregated and traced

30

through the supply chain because customers, and the

U.S. Department of Agriculture (USDA) requires that

these types of pork not be commingled (and actually

remain as advertised). Pork producers are thus well

acquainted with the concepts of segregation and tracing,

and regularly adjust their operations to account for

enhanced requirements of certain production streams.

For example, the USDA regulates use of “organic”

labels.50 In order to claim a product as organic,

producers must permit on-site inspections for every

component of the operation, including seed sourcing,

soil conditions, crop health, weed and pest management, water systems, inputs, contamination and

commingling risks and prevention, and record-keeping.

Despite these requirements, nearly all major pork integrators have organic pork lines, and yet this has not

eliminated the much larger market for nonorganic pork.

As another example, the USDA has Animal Raising

Claims Labeling Guidelines, which regulate, among

other things, how producers can use a “Raised Without

Antibiotics” claim on their meat products. For a

producer to claim that its products are antibiotic free

(Raised Without Antibiotics or No Antibiotics

Administered), the animal cannot have been given

antibiotics within the last 150 days. This requires

extensive documentation, including: (i) a detailed

written description explaining controls for ensuring

that the animals are not given antibiotics from birth

to harvest or the period of raising being referenced by

the claim; (ii) a signed and dated document describing

how the animals are raised to support that the claims

50 Miles McEvoy, Organic 101: What the USDA Organic Label

Means, U.S.D.A. (Mar. 13, 2019), https://perma.cc/Z6ML-V8BB.

31

are not false or misleading; (iii) a written description

of the product tracing and segregation mechanism

from time of slaughter or further processing through

packaging and wholesale or retail distribution; and

(iv) a written description for the identification, control,

and segregation of nonconforming animals/product

(e.g., if beef raised without the use of antibiotics need

to be treated with antibiotics due to illness).51 To cater

to the demand for antibiotic free pork, producers have

followed these strict regulations. Smithfield Foods, for

example, created a product line, Pure Farms, that

meets “the highest level of USDA standards with

minimal processing and no antibiotics, steroids, hormones or artificial ingredients.”52 Cargill, as another

example, segregates its hogs to cater to the demand

for antibiotic free pork, and has said:

Today, Cargill houses approximately 27,000

sows that produce antibiotic-free pork, and

production has reached 12,000 hogs per week.

As Cargill’s antibiotic-free pork line

continues to grow, products can be found in

retail meat cases, at national restaurant

chains like Panera® and on many grocery

stores’ private-label menus. * * * The growth

of antibiotic-free herds demonstrates

Cargill’s dedication to broadening its pork

51 Food Safety & Inspection Service, USDA, Animal Raising

Claims Labeling Guidelines Update 22-26 (Sept. 1, 2021), https:

//www.fsis.usda.gov/sites/default/files/media_file/2021-09/

Animal-Raising-Claims-labeling-and-Non-GMO-slides-2021-0901.pdf.

52 Smithfield Foods Introduces Pure Farms Antibiotic-Free

Product Line, NATIONAL HOG FARMER (Feb. 21, 2017), https://

perma.cc/8EXV-YUGM.

32

portfolio and fulfilling customers’ desires for

greater transparency in the foods they eat.53

The priorities of Smithfield, Cargill, and other

processors are (understandably) to chase customer

demand; supplying demand ensures profits. Despite

the industry’s investments to segregate antibiotic free

pork for major customers like Panera, and other

grocery stores and restaurants all over the country,

the Nation has not experienced a mass conversion to

antibiotic free pork.

And what is true of domestic demand is true abroad:

Processors who seek to take advantage of export markets

must similarly create pork products that meet the

particular requirements of those consumers. For the

European Union, for example, the USDA has a program

—Pork for the European Union—in which the U.S.

has instituted certain control mechanisms surrounding

its export of pork. In particular, producers are required

to implement stringent identification requirements,

in order to maintain segregation and tracing, in the

event of a violation.

Moreover, there are several control and segregation

procedures to follow, to ensure animals in this program

are not commingled with other animals; all operating

procedures related to control and segregation of nonhormone treated animals must be documented. Though

this was thought to require changes to the production

model, the integrators all complied, allowing them to

enter a new market and capitalize on a growing

foreign demand for U.S. pork. For example, Tyson

responded by prohibiting the use of ractopamine in

53 Press Release, Cargill, Incorporated, Raising Antibiotic-Free

Pigs (Jan. 1, 2015), https://perma.cc/ETT6-WHY2.

33

market hogs it purchases. As of February 2020, Tyson

began “offering a limited amount of ractopamine-free

pork to export to customers by working with farmers

who raise hogs without it, and by segregating the

animals and products at processing plants.”54

While corporate integrators seek to block small

farmers from entering new markets by preventing any

variation to their production model, the integrators

themselves readily make changes to their production

model, and institute expensive mechanisms to ensure

segregation and traceability, to enter new markets

themselves. Proposition 12 will therefore not disrupt

supply or demand, nor “transform the pork industry

nationwide,” Br. of Petitioners at 2, any more than did

these other recent developments.

CONCLUSION

The most fundamental principle of business is to

create supply to meet demand. The industrial evolution

of the agriculture industry in the mid-twentieth century

is due in part to the changing nature of consumer

demand; supplying consumers who were interested in

prepared food products and prioritized convenience

required a technological revolution that transformed

agriculture production.55 Corporate packers know

this; they have invested in the capital to supply these

54 Press Release, Tyson Foods, Inc., Tyson to Help Meet Growing

Demand for U.S. Pork by Prohibiting Ractopamine Use (Oct. 17,

2019), https://perma.cc/WYN9-D9GT.

55 Barkema, supra note 4, at 64.

34

customers. However, demand has evolved again, now to

encompass crate-free pork. Just as large processors

have adjusted their production and distribution model

to gain entry into export markets with differing demand

and customer specifications, they can now adjust their

model to cater to growing demand for humanely raised

pork—or, if they think that will be too costly, let that

demand be met by independent farmers who eagerly

seek to enter this market and take advantage of new

opportunities springing up in California.

Petitioners frame Proposition 12 as nothing but a

costly, regulatory hindrance, but one major benefit of

the statute is that it promotes diversity in production.

If the Court sides with Petitioners, it would be helping

multinational agribusiness use their enormous market

power to slow the flow of products available to meet the

market demand. California’s Proposition 12 fully opens

the valve of supply to match consumers’ preferences.

Independent farmers in and out of California who

have always produced crate free pork have expected

new opportunities in California and made business

plans in reliance on this law coming into effect; and

farmers who were not previously in compliance with

the law, made investments in infrastructure to ensure

compliance, with the similar expectation that this law

would remain in effect. Petitioners seek to manipulate

the state authority and consumer preference to ensure

no disruption to their production methodology and

market dominance. Petitioners pursue the Court’s heavy

hand in distorting the market in their favor; the Court

should allow consumer choice and free enterprise to

prevail.

35

For the foregoing reasons and those stated in the

Petition, the Court should grant the petition for writ

of certiorari.

Respectfully submitted,

JAMIE CROOKS

COUNSEL OF RECORD

RUCHA DESAI

FAIRMARK PARTNERS, LLP

1825 7TH STREET, NW

WASHINGTON, DC 20001

(619) 507-4182

JAMIE@FAIRMARKLAW.COM

COUNSEL FOR AMICI CURIAE

AUGUST 15, 2022