“Hogwash”: Nebraska AG Joins Fight Against Massachusetts Pork Industry Regs

By Gordon Hopkins Nebraska has joined a coalition of more than 20 pork-producing states in an appeal of federal district court ruling that upheld a Massachusetts ballot measure that prohibits the sale of meat from livestock that were “confined in a cruel manner.” That ballot measure, known as Question 3, passed in 2016 and, “prohibits any farm owner or operator from knowingly confining any breeding pig, calf raised for veal, or egg-laying hen in a way that prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.”Those restrictions apply to livestock raised out-of-state. The law is similar to California's Proposition 12, the Farm Animal Confinement Initiative, which defines the minimum amount of space that farmers must give to cows, pigs and chickens who are held in confinement. The law applies to food products made from these animals and those sold in California. The law bans the sale of veal from calves, pork from breeding pigs, and eggs from hens when the animals are confined to areas below minimum square-feet requirements. Over 60 percent of California voters passed Proposition 12 on November 6, 2018.On May 11, 2023, the Supreme Court upheld Prop 12 in a five-to-four ruling, finding that states have a right to decide to regulate products sold within the state. Justice Neil Gorsuch, writing for the majority, said, “Companies that choose to sell products in various states must normally comply with the laws of those various states. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.” The Amicus Brief begins with a hypothetical analogy, “Suppose Iowa voters began to worry about overfishing and the inhumane harvesting of Atlantic shellfish. So the Iowa Legislature passes a law about how lobsters, clams and steamers must be harvested to be lawfully sold in the State. For example, lobsters must be able to comfortably turn around and lay down in the lobster cages that capture them. Perhaps the Atlantic fishermen think that the rules are unworkable and would dramatically raise the cost of otherwise ethical fishing. Iowa neither employs nor consults experts within the field—the Atlantic fishing community in Iowa is simply not that large. And so, without fishermen to raise their concerns with local legislators or voters, this new hypothetical law is enacted—and applies equally to all lobster fishermen in the Atlantic and in the Mississippi.” In a press release issued September 30, 2024, Iowa Attorney General Brenna Bird wrote, “Massachusetts’s new “Question 3” pork ban goes further than Proposition 12 by preventing other states from selling pork in, or even transporting pork through, Massachusetts if farmers do not comply with Massachusetts’s strict hog-housing requirements. This means that even if Iowa-produced pork meets all Iowa and federal safety and quality standards, but not Massachusetts’s new restrictions, they cannot do business in that state.”According to Bird, “The States make the case that the Massachusetts pork ban violates the Constitution. Violations include the Dormant Commerce Clause, which gives the federal government, not state governments, the power to regulate interstate commerce. It further violates the Import-Export Clause, which prohibits states from imposing import regulations on products brought in from other states. The ban also violates the Full Faith and Credit Clause, which requires states to respect the laws passed in other states.” Bird called Question 3 “Hogwash.”

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