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Supreme Court to Hear Challenge to Constitutionality of California’s Pork Standards

By Lisa Soronen

In National Pork Producers Council v. Ross the U.S. Supreme Court will decide whether California can prevent the sale of pork in the state unless it meets the state’s standards. California’s Proposition 12 prevents the sale of “whole pork meat” in the state unless the meat was produced in compliance with “specified sow confinement restrictions.” The National Pork Producers Council (Council) claims that Proposition 12 violates the U.S. Constitution’s dormant Commerce Clause.

The Constitution grants Congress the power to “regulate Commerce . . . among the several States.” As the Ninth Circuit notes, the Commerce Clause doesn’t explicitly “impose any restrictions on state law in the absence of congressional action.” Nevertheless, the Supreme Court has interpreted it to “implicitly preempt[] state laws that regulate commerce in a manner that is disruptive to economic activities in the nation as a whole.”

In this case the Council argued that Proposition 12 violates the dormant Commerce Clause because it has “extraterritorial effects” and imposes an undue burden on interstate commerce. The Ninth Circuit rejected both of these arguments.

Regarding “extraterritorial effects” the Council argued that Proposition 12 impermissibly regulates the price of pork in other states. It cited to three Supreme Court cases which the Ninth Circuit acknowledged “used broad language.” But the Ninth Circuit has interpreted those cases narrowly holding that the extraterritoriality principle is “not applicable to a statute that does not dictate the price of a product and does not tie the price of its in-state products to out-of-state prices.” The Ninth Circuit notes “Proposition 12 is neither a price-control nor price-affirmation statute.”

The Council next argued that Proposition 12 imposes a burden on interstate commerce which is “clearly excessive in relation to the putative local benefits” in violation of the dormant Commerce Clause. According to the Ninth Circuit “the crux” of the Council’s argument is complying with Proposition 12 makes pork production more expensive nationwide. “The cost of compliance would result in a 9.2 percent increase in production cost, which would be passed on to consumers, and producers that do not comply with Proposition 12 would lose business with packers that are supplying the California market.” But, the Ninth Circuit reasoned, “alleged cost increases to market participants and customers do not qualify as a substantial burden to interstate commerce for purposes of the dormant Commerce Clause.”  The SLLC files amicus curiae briefs in support of states and local governments in the U.S. Supreme Court, conducts moot courts for attorneys arguing before the Supreme Court, and is a resource to states and local governments on the Supreme Court. CSG is a member of the SLLC. For more information, please visit