California is planning on banning new ICE car sales by 2035. Not many cars are produced there but it clearly has major impact on what is produced elsewhere given the size of their market.
They also have passed a law regulating which pigs may be sold in that state. Specifically only allowing the sale of pigs raised to certain standards of humane conditions. This law is being challenged based on its impact on other states, given the size of their market, effectively regulating production out of their state. It seems to me like how they effectively set standards for autos.
And of course in the news, and in multiple threads, has been the spectre of states that have made abortion illegal attempting to restrict what happens out of their states, by a variety of means.
Not sure if this is the best forum but I am wishing to understand how legally these issues compare and contrast, and if a ruling one way or the other on the pig case implies something for the others. Not looking for a debate but I am not quite sure that there is a straight up factual answer. Looking for informed educated opinions, be they humble or not, I guess?
Legal issues aside, in practice it is extremely difficult to enforce, or even investigate, actions taken in other states.
For example, concerning the pigs law: how will California know what conditions pigs are raised in inside Alabama?
I know that there are many “codes of Conduct” for various industries about how shrimp are raised and shrimp fishermen are treated, about avoiding child labor in Asian factories, etc. I also know that I am frequently seeing news exposes of violations of these by businesses (or their sub-contractors). These codes" seem to be more a PR stunt than anything effective.
Yet many ( not all) medication abortion providers are making significant effort to comply with laws in states that outlaw it. Even though consequences to them for breaking the law seem improbable. I think. Could they be sued for abetting under a Texas style law? Subject to arrest if they step foot in the state?
Pork producers are generally large companies and their practices are generally not secrets. If a producer attested to California that they met certain practices and they did not then it would likely be found out soon and the business consequences, including suits for fraud, would likely follow quickly.
Likewise for carmakers. Few (looking at you VW) try to cheat. Or at least few caught? And for ICE or not, we’ll that is hard to cheat on!
I think the issue is whether the laws are intended to affect other states, or if that’s just a (semi) unintended consequence.
Look at it this way- the California emissions laws are ostensibly not intended to change the entire pork industry - they likely don’t give a crap what happens in Iowa, but the Iowan farmers see dollar signs floating away, so they change their practices to be able to sell in California. Nobody’s forcing the pork producers to do anything- California could in theory, just have very little pork sold there. But that isn’t going to happen- someone will ante up and treat their pigs accordingly and submit to whatever regulatory requirements are necessary in order to sell pork in California.
The prices may well be higher, but they’ll reach some sort of equilibrium and everyone will be eating bacon, carnitas, chicharrones, and pork roasts just like before, albeit maybe with a slightly higher price and with more humanely raised pigs.
Same thing with cars… California emissions regulations have driven the development of that sort of technology for decades. Going all EV will merely entice manufacturers into producing EVs in larger quantities and in more affordable types than they might have otherwise. And when other states follow suit, it’s likely they’ll be following the trail California has blazed, just like with ICE emissions.
Now if California’s laws were written in a way that directly expects changes in other states, that would run afoul of jurisdictional problems. But they don’t- it’s all about what can be sold in California, and producers in other states have a choice whether or not they want to comply. They can’t really bitch (IMO) if they don’t like it- they have that choice to not sell there or comply with the regulations.
In concept it’s like a restaurant with a dress code requiring blue ties. The restaurant only cares about what people wear within its walls. If that dress code changes the product mix at local department stores to favor blue ties, the restaurant doesn’t care. Yes, the restaurant’s policy had an effect outside of its walls, but it’s at a remove- it’s responding to greater demand for blue ties from the stores’ patrons, not directly to the restaurant’s policies. Same thing for the California legislation in question. If Iowan farmers choose to adhere to the California standards, it’s because they want to sell pork there, not because California is compelling them from afar. California’s only regulating their own markets.
Not correct.
While there are 8 large companies that sell the majority of the finished, edible pork products, those aren’t the actual producers. It’s a whole bunch of mostly small farmers that breed, farrow, raise, feed, and finish the pigs that are sold to these 8 large companies. And these farmers mostly specialize in one stage of the pig’s life. There are breeder/farrowing operations that breed sows and care for them up to the birthing process, and the first few days of the piglets life. Then the piglets are sold to a feeder operator, who raises them for the early part of their life. Then they go to a finishing farmer, who cares for them until they are the proper weight & condition to go to market – that’s where they are sold to one of the 8 large pork product companies.
But all these pig farmers are independent operators, often sub-contractors or suppliers to one of the large companies. And it’s really hard (and expensive) to try to keep track of how each of these farmers is treating their pigs.
So Smithfield can certify to California that all the pigs they buy are properly treated, humanely slaughtered, and hygienically packaged. But all they can say about their treatment before they bought them is something like ‘our suppliers promised us that all the pigs they sold us were humanely treated’. And each of the 3 or 4 other farmers that raised the pig for parts of its life can promise the same. They’d have to do so to sell to Smithfield. But are they telling the truth? They have a real strong economic incentive to lie. And consequences are pretty minor – any of these small, independent farmers involved in this chain can always close down and start up under a different name.
There’s a provision of the Clean Air Act that allows California to set more restrictive emissions limits for autos than the federal limits. Not only that, but other states are allowed to join California in these limits. There are, IIRC, 17 other states that do this. So what California is doing is essentially setting all the limits to zero as of 2035.
At any rate, because of this special provision, I don’t think the EV requirement will have much effect on the pig rules or abortion rules. They’re all going to be separate things that may have to be individually hashed out in the courts.
There are still many small hog farmers but most hog is grown by the giant farms, increasingly so, and most of the small farms are vertically integrated into the production networks, to the degree that misrepresentation of product discovered would not be easily repaired by a name change.
They could establish a department that certifies the operations of each producer. The farm applies to be certified for their hogs to be sold in California, and an inspector visits the farm, observes their operations, and they either pass or fail.
Sure, you could in theory set up a Potemkin Sty that meets the requirements just long enough to pass certification, but yo’d have to do that every time they sent an inspector, and if someone rats you out between times, you can lose your certification, and be permanently barred from selling in California.
My sister had such a job before she retired, with the Canadian government. She was one of the people who flew to other countries to evaluate their drug manufacturers, to ensure that the products were being produced to the standards required for sale in Canada. So far, that system seems to be working. There’s enough money in the game that no one wants to risk being blackballed just to save a few bucks.
And while we’re at it, Texas had been setting de facto textbook standards for decades. I suspect many of the people concerned about California’s rules on cars didn’t even blink at Texas’ influence on textbooks.
When I see “subcontractors”, I generally assume “it’s all the big company; there are just legal loopholes that make it advantageous to pretend that parts of their company aren’t”. If it’s difficult to track what’s going on with subcontractors, it’s only because the big companies have decided to make it difficult. Maybe laws like this will shift the balance back towards holding the big companies accountable.
And yes, what states do has influence outside of the state. What everyone does has influence everywhere. Some states are just big enough that their influence is easily noticeable.
The contention of the lawsuit is that some are big enough to have their influence be more than easily noticeable, they are big enough that they de facto dictate standards of practice on industries located outside their state.
It’s still influence, not dictation. California doesn’t care what other states do. Raise hogs however you like, and sell them wherever you want, outside of California, and California will have nothing to say about that. If California sets regulations on pork, then swineherds still have multiple options: They can stop selling pork in California at all, they can raise some pigs in compliance with California standards and others not in compliance, or they can raise all of their pigs to California standards. One of those three options will be the most profitable one for them, and if they can figure out which one, of course that’s the one they’ll choose, but they’re not forced into their choice.
I agree but such is the argument being made and the courts have made perplexing decisions before. Still there are lots of other markets for pork, especially in our global trade world.
What would you think about an extreme case, in which one state represented nearly 100% of the market for a product? An out of state producer would only have the choice of compliance or no longer selling. Would that extreme justify the argument?
The governor of Washington announced this state will follow California’s lead on the ban of ICE cars in 2035. I had a chance to ask the sales manager of a Ford dealer how this will affect the dealership. He said the biggest affect will be same thing that happened at the height of the Covid pandemic, there will be a huge demand for used vehicles. Plus there will be an ever bigger demand for parts to keep the older vehicles on the road. The demand of cars in California will cause prices to double or even triple over the cost when new.
New York has the same law and Massachusetts was considering it (although I don’t know whether it was ever passed) .
Which leads me to a question about the pork argument - suppose it’s not just California regulating the pork sold within its borders. Suppose it’s another ten or fifteen states as well - surely ten or fifteen states will dictate standards as much as or more than a single state. One issue is that it seems to me if those states aren’t constitutionally able to set standards for the pork sold in their state (because they are effectively regulating production in other states) then Iowa and Minnesota (and a couple of other states) are effectively setting the standards for pork sold in California and the other states that would prefer to set different standards and I’m not sure why that would be acceptable. Because California was just requiring pork sold in that state to meet certain standards. The pork producers in other states have multiple options - use California standards for all the pork they produce, produce some meeting California standards or don’t sell to California . But if such a law is unconstitutional California will have no options. They will have to allow pork to be sold as long as it meets the standards of the state where it is produced.
And another issue - if the California law is seen as regulating activity outside the state because California represents such a large part of the market that producers will have to comply , then what happens when it’s Rhode Island setting these requirements? Is it possible for a law to be unconstitutional when California passes it, but not when Rhode Island does?
In that case, any producer of that product would be well-advised to keep up on that state’s regulations, before they even went into that line of business.
To use an international example, a lot of the electronic devices sold in the US are made in China, and the US is a very large fraction of the market for such devices. And so the manufacturers in China make sure that their devices meet UL standards. Or at least, some do, and the rest just hope they don’t get caught.
Plus they have a fourth option: they can lie.
(Not that unusual, there’s a whole industry to do this, called “Advertising”.)
Very easy for a pig farmer to do: they have this small, clean, very CA-compliant pig sty to show the inspector. And the bigger non-compliant one they own down the road – oh, that’s for the east-coast pork. Then once the inspector’s gone, pigs get moved from the big sty to the small, clean, CA-compliant pig sty to live for their last few days before they are shipped to market (labeled (quite accurately) as coming from this CA-compliant pig sty).
This could probably be caught – if California put enough inspectors and spent enough CA taxpayers money on the program. But there is a worker shortage: California can’t hire enough people as inspectors for their in-state foster care system already. And the California budget is very tight – how long before the budget for this inspection program gets cut? It’s not a small job – there are over 60,000 pig farmers in the US, 5000+ in Iowa alone.
I’m not opposed to California having such regulations. I just don’t think they will be as effective in practice as people seem to believe. They will be mostly a PR gesture, like existing programs that purportedly certify that these athletic shoes were manufactured without child labor, that this salmon was wild-caught, that these vegetables were organically grown, etc.
Good intentions, but not much practical effect.
P.S. Plus, one-third of US pork is exported. (Twice as much of the market as California sales.) And are foreign buyers going to care about California regulations on pig raising?
The US is not the only driver of that market. Europe is also a large market for them and the EU has its own standards. The two standards are not the same, mostly because they emphasize different properties/issues/(whatever the right term is). But any company that’s going to make sure they meet one will meet both. It’s just too much bother to manufacture some things that meet only one standard and then have to make sure the products are shipped to the right market.