SCOTUS and Protein Brands Weigh In on Ethical Pork Law

Before adjourning for the summer at the end of the current term, the U.S. Supreme Court recently upheld California’s Proposition 12 that bans the sale of pork from pigs in crowded pens and cages.

In a 5-to-4 ruling, the High Court rejected a challenge to Prop 12. Justice Neil Gorsuch wrote in the majority opinion that the voters’ decision in California should stand, and that companies who do business in state generally comply with state laws.

[Read more: "10 Most Sustainable Grocers"]

Gorsuch also took a moment to underscore the range of products available in today’s retail market. “Modern American grocery stores offer a dizzying array of choice. Often, consumers may choose among eggs that are large, medium or small; eggs that are white, brown or some other color; eggs from cage-free chickens or ones raised consistent with organic farming standards. When it comes to meat and fish, the options are no less plentiful. Products may be marketed as free range, wild caught or graded by quality (prime, choice, select and beyond),” he wrote. “The pork products at issue here, too, sometimes come with ‘antibiotic-free’ and ‘crate-free’ labels. Much of this product differentiation reflects consumer demand, informed by individual taste, health or moral considerations.”

Justice Brett Kavanaugh was not swayed and pointed to free state trade practices and business and industry interests in his dissent. “It would be prohibitively expensive and practically all but impossible for pig farmers and pork producers to segregate individual pigs based on their ultimate marketplace destination in California or elsewhere. And California’s 13-percent share of the consumer pork market makes it economically infeasible for many pig farmers and pork producers to exit the California market,” he penned in a separate opinion. “California’s required changes to pig-farming and pork production practices throughout the United States will cost American farmers and pork producers hundreds of millions (if not billions) of dollars. And those costs for pig farmers and pork producers will be passed on, in many cases, to American consumers of pork via higher pork prices nationwide.”

Similarly, there were different industry reactions to the SCOTUS ruling. “We are very disappointed with the Supreme Court’s opinion,” said Scott Hays, president of the National Pork Producers Council. “Allowing state overreach will increase prices for consumers and drive small farms out of business, leading to more consolidation.”

Austin, Minn.-based Hormel Foods issued a statement following the mid-May ruling, noting that it has been ready to comply with Prop 12 for nearly a year and a half. “All of our designated market hogs are housed in a group pen setting from birth. Additionally, our company-owned hog farm has transitioned to group sow housing,” the company reported, noting that hogs purchased through contractual agreements must also meet standards set by local, state and federal laws.

Pork brands that have been in favor of the ethical pork requirements noted that the Supreme Court affirmation is an important moment for animal welfare. Matthew Gatto, COO and head of farm partnerships for True Story Foods, told Progressive Grocer in a recent interview that the company has always exceeded the requirements set out by Prop 12, even before the law was passed. “It’s something we have been behind since we started 14 years ago. It was about partnering with farmers and ranchers who were raising animals with that animal welfare aspect,” he remarked.

Gatto agreed with Justice Gorsuch that voters in California are behind the movement. “The consumers there are very interested in animal welfare and there is growing awareness,” he noted, adding, “At the end of the day, it’s up to states and consumers and what they value. If animal welfare is important to them, I see it moving in that direction.”

As part of its protein portfolio, True Story Foods produces some breed-specific heritage pork products with more marbling and a darker color, for an eating experience that can be considered enhanced by the ethical treatment of the animals. Following the latest ruling, Gatto said that the company is considering adding more language to its packaging. “It helps us communicate to consumers that there is something unique or different about our products, including the space requirements and other things, like vegetarian feed and antibiotic free,” he explained.