Is Prop 12 Under Threat With Republicans in Control?

In 2018, California passed one of the strongest animal welfare laws in the country — and it’s been under threat ever since. Proposition 12 forbids the extreme confinement of certain farm animals, and after failing to overturn the law in the Supreme Court, opponents are now trying to repeal Proposition 12 through the upcoming Farm Bill. Will they succeed?

“It really does lie in the hands of Congress at this point,” Allison Ludtke, Legislative Affairs Manager for the Animal Legal Defense Fund, tells Sentient. “There’s a level of uncertainty that I think we’re all feeling.”

On the surface, Proposition 12’s chances seem grim. The GOP’s Farm Bill proposals in the House and the Senate both include Proposition 12 repeal, and come January, Republicans will control both chambers of Congress and the White House. This would seemingly give them the killshot they need to take down the law.

But it’s not quite that simple, says Ludtke, whose organization has fought to defend Proposition 12 in court. Ludtke tells Sentient that Proposition 12 has found some surprising defenders, including farmers, meat producers and even some “ultra-conservative folks in the MAGA movement,” who believe Proposition 12 helps American farmers remain competitive with Chinese companies.

“We’ve seen really conservative folks, conservative Republicans, oppose [Proposition 12 repeal],” Ludtke tells Sentient. “Given the small majority that Republicans have in the House, and that they need to be working with Democrats, that gives me a semblance of hope that we do still have some leverage here.”

What Prop 12 Does

Proposition 12 is a California law that bans the extreme confinement of certain livestock in the state. Specifically, it establishes minimum space requirements for breeding pigs, egg-laying hens and veal calves, and imposes fines on any producers who confine said animals to smaller spaces.

Just as importantly, Proposition 12 also forbids California retailers from selling eggs, pork and veal that was produced using extreme confinement in other states. Because California is such an enormous market, this provision of the law has compelled livestock producers in other states to either adopt California’s minimum space requirements or, alternatively, stop selling their products in California.

What Prop 12 Does Not Do

Proposition 12 is generally regarded as the strongest animal protection law in the country, and rightly so. But it’s also important to note what the law does not do.

For one, it doesn’t apply to chickens raised for meat. Americans eat around 8 billion chickens every year, so that’s quite a few animals who receive no protections under the law.

In addition, Proposition 12 still permits a variety of other factory farm practices that also cause undue suffering to the animals in question. Beak-trimming, tail-docking, castration without anaesthetic and other gruesome mutilations are par for the course on farms, and Proposition 12 doesn’t restrict them in any way.

How Animals in California Were Treated Before Prop 12

Before Proposition 12, California livestock producers were already somewhat restrained by Proposition 2, a similar law that voters approved in 2008. Proposition 2 requires veal calves, breeding pigs and egg-laying hens to be given enough room to turn around, lie down, stand up and fully extend their limbs; however, it doesn’t specify exactly how much physical space this entails.

Unlike Proposition 12, Proposition 2 doesn’t place any restrictions on animal products produced using extreme confinement methods in other states. This partially changed in 2010, whenCalifornia legislators passed a law requiring all shelled eggs sold in the state — though not all pork and veal products —-  comply with Proposition 2’s standards.

But Proposition 2’s space requirements are still quite modest. California regulators determined that, in order to comply with the law, egg-laying hens must be given at least 116 square inches of space in which to live. That’s around 0.8 square feet — an improvement from the 0.4 square feet of space that was the industry standard prior to Proposition 2, but still not very much space.

How Have Opponents Tried to Repeal Prop 12?

Proposition 12 was the target of multiple legal challenges from the meat industry shortly after its approval. The North American Meat Institute, the American Farm Bureau Federation and the National Pork Producers Council all sued to have Proposition 12 overturned, arguing that it violated the interstate commerce clause of the Constitution.

But the Supreme Court upheld Proposition 12 in 2023, with the majority concluding that, “while the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

Soon thereafter, a pair of Republican lawmakers attempted to repeal the law through a piece of legislation called the EATS Act. This bill would prohibit any state from imposing regulations on the sale of agricultural products produced in other states; as such, it would invalidate both Proposition 2 and Proposition 12, and prohibit any other states from enacting similar legislation in the future.

The EATS Act died in Congress. But in June, Congressional Republicans proposed inserting a version of it into the Farm Bill, a package of legislation that’s renewed every five years and serves as the basis for American farm policy.

House Republicans’ Farm Bill proposal would prohibit states from restricting the in-state sale of livestock products that were produced out of state, based on the conditions in which the animals were raised. However, this prohibition would not apply to “domestic animals raised for the primary purpose of egg production.”

In effect, then, the House GOP’s Farm Bill would repeal both Propositions 2 and 12’s restrictions on pork and veal production, but not the laws’ restrictions on egg production.

The Democratic Farm Bill proposal didn’t include the EATS Act, or any form of Proposition 2 or Proposition 12 repeal.

But Congress has been unable to agree on a new Farm Bill for the last two years, and it’s unlikely that they’ll be able to do so during the last two weeks of the year. What’s more likely is that they’ll pass an extension of the last Farm Bill, then return in January to deliberate on a full, five-year bill.

Is Proposition 12 Doomed Once Republicans Take Control?

In the new year, Republicans will control the presidency and both chambers of Congress. In theory, this will give them the ability to repeal Proposition 12, either through the Farm Bill, a new version of the EATS Act, or some other piece of policy.

And yet oddly enough, not all Republicans are on board with repealing Proposition 12. One of the most surprising developments in this story has been the number of conservatives who either support Proposition 12 or oppose repealing it — which, as we’ll see, is not necessarily the same thing.

In 2023, 16 House Republicans declared their opposition to the EATS Act in an open letter to the chair and ranking member of the House Committee on Agriculture. The next year, eight more House Republicans wrote a separate letter opposing the anti-EATS Act. For perspective, House Republicans will only have a five-seat majority when Congress reconvenes in January.

Right-wing publications like The American Conservative and Newsmax have run op-eds opposing the EATS Act as well. Even Texas Agriculture Commissioner Sid Miller, a Republican who blames wind turbines for power outages and thinks the USDA is racist against white people, wrote a fiery op-ed opposing Proposition 12 repeal.

Equally surprising are the farmers, retailers and meat companies who’ve said that don’t want Proposition 12 repealed. This diverse list of opponents includes industry leaders like Perdue, meat distributors like ButcherBox and individual hog farmers across the country. According to the Humane Society, almost 5,000 farms in 39 states have also come out in favor of Proposition 12.

“The typical coalition that you would see supporting GOP efforts is not necessarily on board here,” Daniel Jasper, senior policy advisor for Project Drawdown, tells Sentient.

Why Prop 12 Has So Many Unexpected Allies

Needless to say, it’s not every day that you see Republicans, business leaders and meat farmers defending a strict government regulation that would cost businesses money in the name of protecting animals. There are a few factors at play here.

States’ Rights

Some Republicans see the fight over Proposition 12 as a state’s rights issue. For Congress to repeal a state law that California passed on its own accord would be a violation of state’s rights, they say, and could lead to more federal intervention in state laws.

“While I don’t agree with Prop 12, I’ll defend to my dying day California’s right to self-determination, and any state’s ability to use its constitutional authority as that state’s citizens best see fit,” Sid Miller, the conservative Texas Agriculture Commissioner, wrote in an op-ed in The Hill. “While I understand the motivation for congressional leaders to want to rein in California, the EATS Act or something similar is a massive overreach of federal power.”

Miller isn’t just fear-mongering, as an analysis by Harvard Law identified over 1,000 state and local laws that could potentially be prohibited if the EATS Act passed.

“It would have really damaging implications on states’ rights, the regulation of animal products, pesticides, and so forth,” Ludtke says of the EATS Act’s broad language. “I think it could really cause chaos throughout the industry, both for producers and regulators alike.”

Increased Profits

On the business side, producers have cited several reasons for opposing a Proposition 12 rollback. In interviews with Sentient, several hog farmers have said that they support Proposition 12 not only because it’s more humane, but because it’s actually making them more money than before, as many welfare-minded customers are willing to pay a premium for Proposition 12-compliant products.

“Prop 12 is one of the best things, economically, that’s happened to us in a very long time,” Missouri pig farmer Hank Wurtz told Sentient earlier in the year. “That’s good for American farmers. We need to make a living somehow. If Californians want to pay more for it, we welcome that.”

Despite opponents’ claims that Proposition 12 will wreak economic havoc on producers, the meat processing giant Hormel confirmed that it “faces no risk of material losses from compliance with Proposition 12.” The Perdue-owned pork company Niman Farms has argued that Proposition 12 is merely a natural result of customers’ growing distaste for animal suffering.

“Even without Proposition 12, the market has shifted to create strong demand for pork that is farmed humanely and without cruelty,” Niman Farms wrote in a Supreme Court brief. “Proposition 12 reflects that shift in consumer preferences.”

Niman Farms added that farmers can “produce [pork] for the California market under Proposition 12 standards and for other markets under less rigorous standards if they choose.” As a result, the law ”will not substantially burden farmers with excessive costs — just costs reflecting the preferences of the California market.”

Fear of Foreign Control

Finally, a handful of Republicans oppose the EATS Act because they fear it would lead to Chinese companies having greater control of American farms and the American meat market. These folks include some of the most notoriously right-wing members of Congress, such as Reps. Marjorie Taylor Greene, Matt Gaetz and Andy Biggs.
The leading pork distributor in the U.S. is the Chinese-owned company Smithfield Foods. Because China has no animal welfare laws at all for livestock, Chinese companies can produce pork at a lower cost and be more competitive than American farmers. If Proposition 12 is repealed, the argument goes, Chinese meat companies will be able to sell their pork in California, thus posing a threat to the livelihoods of American hog farmers.

The Bottom Line

Ultimately, the fate of Proposition 12 lies with the new Congress, and only time will tell whether lawmakers decide to scrap it or save it. But Ludtke is optimistic, and welcomes the diverse coalition that’s come together to defend Proposition 12.

“I think it’s an amazing campaign that highlights what can happen when you join forces across the ideological spectrum on an issue,” Ludtke says. “And so I feel, again, hopeful, even though there is a lot of uncertainty that lies ahead.”