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Volume 107

Note

Eating High on the Humanely Raised Hog: State Bans on Selling Food Produced Using Cruel Animal Farming Methods Do Not Violate The Dormant Commerce Clause

Emma Horne, Cornell Law School, J.D. 2021.

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14 Aug 2022

Most states’ laws minimally protect farmed animal welfare. However, a growing minority of states have enacted food-related sales bans that are designed to improve the lives of farmed animals nationwide. These sales bans are passed by states as a means to eliminate inhumane confinement of farmed animals. For example, California has enacted Proposition 12, which increased and specified minimum space requirements provided to egg-laying hens, veal calves, and breeding pigs. Further, Proposition 12 banned the in-state sale of eggs, veal, and pork produced in violation of Proposition 12’s confinement requirements. In other words, farmers across the country who wish to sell eggs, veal, or pork in California will be required to comply with Proposition 12 by 2022, when the law’s requirements are set to go into full effect. Remodeling farms and production methods to comply with Proposition 12 is a hefty expense for industrial farmers, who have traditionally given animals so little space that the animals are unable to lie down, turn around, or open their wings.

With some sales bans already in effect, and several others soon to go into effect, animal agribusiness has waged war against these laws. Their weapon? The Dormant Commerce Clause. Opponents of the sales bans argue that the bans unconstitutionally regulate interstate commerce. This Note disagrees and posits that under the modern Dormant Commerce Clause test, state bans on selling food produced using cruel animal farming methods do not violate the Dormant Commerce Clause.

This Note proceeds in four parts. Part I explores federal and state laws that pertain to farmed animal welfare, highlighting their shortcomings. Part II describes state sales bans that have burgeoned as an enforcement tool for states to improve farmed animal welfare. Part III explains how animal agribusiness has weaponized the Dormant Commerce Clause to fight against sales bans, as illustrated by the recent attacks on California Proposition 12, and uncovers an emerging circuit split on whether the Dormant Commerce Clause prohibits states from regulating production methods, including the animal husbandry practices regulated under Proposition 12. Part IV argues that Proposition 12, and similar sales bans, pass constitutional muster under the modern interpretation of the Dormant Commerce Clause.

To read this Note, please click here: Eating High on the Humanely Raised Hog: State Bans on Selling Food Produced Using Cruel Animal Farming Methods Do Not Violate The Dormant Commerce Clause.

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