Reposted from: https://investigatemidwest.org/2025/07/28/californias-prop-12-facing-tough-new-challenges/
July 28, 2025
Having failed time and again in the courts to find California’s Proposition 12 unconstitutional on Commerce Clause arguments, Big Meat is looking toward a new two-pronged strategy from USDA and Congress to terminate the law.
Prop. 12 requires any pork producers wanting to do business in California to house their sows in 24 square feet of living space. In state. Out of state. Makes no difference.
The first comes from pig-happy Iowa. U.S. Iowa Sen. Joni Ernst in April introduced the Food Security and Farm Protection Act that promises to “prevent States and local jurisdictions from interfering with the production and distribution of agricultural products in interstate commerce, and for other purposes.”
Specifically, Ernst’s bill would allow just about any individual, business or government entity to sue seeking permanent injunction and damages for loss against agricultural products sold across state lines.
And here’s the kicker. Once filed, a court would have no choice but to immediately issue a preliminary injunction unless the defendant can show it’s likely to prevail at trial and the injunction “…would cause irreparable harm…”
If the bill was enacted, a flotilla of plaintiffs would be beating down on district courts with lawsuits in hand opposing Prop. 12. Guaranteed.
But I highly doubt the bill has any chance of making it to the POTUS desk all by itself. It will need to be attached to something else. And that something is the delayed Farm Bill that Congress needs to get out the door by the end of the year.
Democrats are suggesting the Farm Security and Farm Protection Act is an example of ready, shoot, aim. U.S. California Sen. Adam Schiff has sent a letter to Senate Agriculture Chair John Boozman and ranking member Amy Klobuchar to ignore GOP attempts to incorporate in the farm bill language prohibiting state or local governments from imposing standards on agricultural products produced in other states:
“This legislation would have a sweeping impact if passed — threatening countless state laws and opening the floodgates to unnecessary litigation. The bill is particularly draconian in that it aims to negate state and local laws when there are no federal standards to take their place, creating an overnight regulatory vacuum.”
Schiff makes it clear that Ernst and the GOP want to take down Prop. 12:
“The Food Security and Farm Protection Act was introduced with the primary goal of undermining these standards — particularly California’s Proposition 12, in response to the Supreme Court’s recent decision upholding that law, and Massachusetts’s Question 3… The demand for Proposition 12 and Question 3 compliant products has been met. Countless farmers who wanted to take advantage of this market opportunity invested resources and made necessary modifications to be compliant.”
Whether or not the FSFPA or something like it survives what appears to be a Congressional slobber-knocker is anyone’s guess.
But there’s an even more immediate threat to Prop. 12’s survival.
Up to now, those opposing Prop. 12 have primarily filed lawsuits focused on porcine housing standards. But Prop. 12 also includes laws regulating poultry housing standards.
And selling eggs in California requires acquiring certification as well as meticulous recordkeeping:
“…any person engaged in business in the state as an egg producer, or any out-of-state egg producer that is keeping, maintaining, confining, and housing an egg-laying hen for the purposes of egg production for human food as shell eggs or liquid eggs for commercial sale in California, shall hold a valid certification issued pursuant to Article 5 of this Chapter as a certified operation.”
No certification? Forget it.
Earlier this month the Department of Justice filed a lawsuit suggesting Prop. 12 is violating the U.S. Constitution’s Supremacy Clause. The DOJ claims Prop. 12 has resulted in artificially inflated egg prices for U.S. consumers. And the DOJ believes the Egg Products Inspection Act allows Congress to void state or local laws imposing requirements different from or in addition to those mandated by the that act:
“This language ‘sweeps widely’ and ‘prevents a State from imposing any additional or different — even if non-conflicting — requirements that fall within the scope of the EPIA… Proposition 12 imposes standards of quality and condition on eggs by prohibiting the sale within California of any shell egg or liquid eggs that have certain inherent properties — namely, eggs or liquid eggs that are the product of an egg-laying hen that ‘was confined in a cruel manner,’ as defined by California law.”
On the face of it, blaming Prop. 12 for higher egg prices is nonsense. Egg prices in the U.S. are mostly driven by supply and demand issues. Higher egg prices earlier this year were driven by Avian Influenza, which decimated chicken farms. As poultry farms were restocked through the spring, egg prices started falling, although more quickly at wholesale than retail.
Efforts to kill Prop. 12 on dormant Commerce Clause arguments have gone nowhere. But whether Prop. 12 runs afoul of the Supremacy Clause — that hasn’t been litigated. The DOJ may have a case.
I think the goal now is for the Department of Justice to convince the courts to issue a preliminary injunction against Prop. 12 — which could very well include pausing regulations on pork.
And after that? Likely another multi-year slog back to the Supreme Court.
By Dave Dickey