Update: A coalition of California-based restaurants and grocery stores filed a lawsuit to stop the implementation of Proposition 2 in December 2021; a California Superior Court today delayed enforcement of Prop. 12 for 180 days in January; and then, on March 28, 2022, the U.S. Supreme Court agreed to hear the case, casting doubt on the future of the ballot measure.

After graduating from high school in 1987, Tim Brandt started raising hogs on his family’s Ohio farm. Housed in barns with straw-bedded pens, hundreds of pigs moved freely inside and outside. “We had no crates, no stalls, nothing,” he said.

But his life changed when the whole industry began shifting to modernized hog barns lined end to end with small, individual metal stalls to house breeding sows. The new “crate system,” which became steadily more prominent in the 1980s and 90s, promised increased productivity and decreased labor.

But in Brandt’s experience, his pigs were stressed out, screaming every time he entered the barn, and they produced fewer piglets. “I totally regretted it,” he said.

Later, Brandt joined Coleman Natural Foods as a contract farmer, and around 2017, the brand committed to sourcing crate-free pork from its suppliers. So, Brandt jettisoned the cages in his barns, housed sows in social groups of 50, and hasn’t looked back.

“I know a lot of people who disagree with me, but it works,” he said. His sows are content and their productivity is up. “I felt that this was the way of the future,” Brandt added.

While leading animal welfare organizations and retail marketing experts agree with Brandt’s take, the pork industry staunchly defends the use of gestation crates, saying it keeps pregnant sows healthier and safer. But California’s new law based on Proposition 12, The Farm Animal Confinement Initiative, which bans their use, could disarm the pork industry’s resistance.

Passed by voters in the November 2018 election, Proposition 12 is considered the country’s toughest farm animal protection for laying hens, veal calves, and breeding pigs. It establishes minimum space standards to provide more freedom of movement, ultimately mandating cage-free eggs and crate-free pork.

But the game-changing element of the new law is that it criminalizes the sale of products from farm animals raised in a “cruel manner”—even for meat and eggs produced in other states. Proposition 12 has already been enacted for calves and hens. And once the regulations for pigs go into effect on January 1, 2022, pork raised with gestation crates will be illegal for sale in the state of California.

While the pork industry has fought the legislation with a series of lawsuits, a recent federal court ruling upheld the law. And despite the looming deadline, it is only beginning to come to grips with the realities of Proposition 12 and similar anti-confinement regulations in other states. But market pressures on food service companies, retailers, and grocery stores could make California the leading edge of sweeping changes for animal welfare nationwide.

Anti-Confinement Laws Codify Consumer Concerns

Consumer are clearly concerned about the extreme confinement conditions for farm animals—and risks to public health and safety from factory farms. That concern has culminated in the introduction of a proposed federal Farm System Reform Act and anti-confinement laws in a dozen states.

Currently, 10 states, including Florida, Ohio, and Arizona, have voter-approved statutes that ban gestation crates on commercial farms. In 2016, Massachusetts passed a ground-breaking law, An Act to Prevent Cruelty to Farm Animals, that goes into effect on January 1, 2022. It not only stipulates minimum space requirements for hens, veal calves, and pigs, but also prohibits the sale of any eggs, veal, and pork from illegally confined animals, regardless of where they are produced.

California’s Proposition 12, approved by two-thirds of voters, followed suit. It mandates that any housing structure for these farm animals provide adequate space for “turning around freely, lying down, and extending their limbs without touching the side of an enclosure” and prohibits the sales from out-of-state producers that cannot verify that they meet the minimum space requirements.

Proposition 12 is being implemented in phases. On January 1, 2020, the law requiring at least one square foot of space per hen (and 43 square feet for veal) went into effect—with all hens required to be cage-free by 2023.

The California Department of Food and Agriculture (CDFA) has contacted grocery stores, retailers, and food distributors to prepare them for compliance with the new regulations governing egg production and sales. CDFA Public Affairs Director Steve Lyle told Civil Eats that retailers “have been receptive and engaging” with agency staff on compliance measures.

This doesn’t surprise Josh Balk, vice president of farm animal protection with the Humane Society of the United States (HSUS), which led the Proposition 12 campaign. Proposition 12 codified the industry’s own minimum standards established by the United Egg Producers. So, egg producers know that they are already California compliant.

“Close to 30 percent of the industry is cage free,” Balk said. “Instead of fighting the inevitable, they’re embracing cage free as a business model.”

But pork is a very different story.

There is a formidable gap between the current pork industry standards of 16 square feet per pig and Proposition 12’s mandate of at least 24 square feet. Although California is not a major pork producer, the prohibition on sales will impede not only producers outside of California but any food company operating in the state—from fast food franchises to grocery stores.

And because those changes involve capital investments for renovated hog barns with additional space, new housing infrastructure, and technology like electronic feeding systems, the National Pork Producers Council (NPPC) is putting up a fight to challenge Proposition 12.

“I have a feeling that producers have not absorbed the reality that this is going to happen,” said Balk. “It’s coming to a reckoning.”

Pork Industry Resistance

Less than 1 percent of pork producers are currently in compliance with Proposition 12, according to the NPPC. This means that until producers adopt the new standards, 99 percent of them will be barred from doing in business in California’s economy after December 31, 2021.

Pigs in gestation crates.

In cooperation with the American Farm Bureau Federation, NPPC launched a court challenge to invalidate Proposition 12 as unconstitutional. “Proposition 12 seeks to allow a single state, without any significant commercial hog production, to reach across the country to regulate how farmers across the country operate, imposing onerous regulations, inspection, and permitting requirements, and highly prescriptive measures on livestock farmers,” Michael Formica, NPPC counsel and assistant vice president of domestic affairs, told Civil Eats.

The NPPC lawsuit is currently in federal appeals court with support from 20 states (including top-pork-producers Indiana, Missouri, and Nebraska). A separate challenge by the North American Meat Institute was rejected this month by the 9th District Court of Appeals.

Over the past five years, the industry has shifted away from gestation crates toward group sow housing. According to Formica, about 30 percent of pigs now spend part of their breeding cycle in group housing, but the industry remains resistant to the consumer-driven push to abandon gestation crates. “Proposition 12’s requirement of 24 feet is arbitrary, has zero scientific backing, and will not improve animal welfare,” he said.

Smithfield, the nation’s largest pork producer, claims to produce “crate-free pork,” but investigations reveal that the company has not eliminated gestation crates. They are still a standard in the industry for the first 35 to 42 days of the sow’s 115-day pregnancy.

According to The Food Industry Scorecard, a March 2020 report from HSUS based on a year-long survey of about 100 food companies, “No major U.S. pork suppliers have eliminated gestation crates or, as far as we know, even have plans to.”

So how are major pork producers preparing to comply with Proposition 12?

Tyson replied to Civil Eats with a statement: “We’re currently studying the proposed regulation and don’t have information to share on it.”

Clemens Food Group out of Pennsylvania is one of the country’s largest pork producers. Senior vice president Bob Ruth detailed by email to Civil Eats how the company is transitioning away from conventional gestation crates to group housing, called open-pen systems. But he has concerns about breeding in groups.

Ruth explained that pigs in heat can be aggressive toward one another and even endanger farm workers. Clemens relies on breeding stalls for seven to 10 days; the company is also testing open-pen breeding with animal welfare expert and Colorado State University professor Dr. Temple Grandin and researchers at the University of Pennsylvania, but it is only in the preliminary stage.

Since Clemens buys most of its supply from independent farms, only its in-house raised Farm Promise brand pork will be Proposition 12 compliant, and the brand makes up only 15 to 20 percent of its supply.

There is no doubt among industry experts that Proposition 12 will cause supply disruptions and price increases. At the same time, other industry experts see a valuable market opportunity to increase the production of more humanely raised meat that will pay off down the road. And companies like Coleman, a niche producer of antibiotic-free pork, view Proposition 12 as a step in the right direction.

One Pork Company Investing in Crate-Free

A few years before Proposition 12 became a ballot measure, Coleman Natural Foods elected to shift to crate-free pork. A division of Perdue Premium Meats Company (PPMC), which also owns the pasture-based Niman Ranch brand, the company audited their 100 Midwest contract farms to determine how many of their barns had adequate space.

The goal was to eliminate the use of crates for pregnant pigs and those with newborn litters—to go 100 percent crate-free. “This is not going to be a shell game,” said Jeff Tripician, PPMC president.

Coleman settled on a 20-square-feet-per-pig minimum standard, but then Proposition 12 passed with a 24-feet minimum. Only a third of the farms had adequate space. “How do we convert the other two-thirds to the 24 [feet] or better without firing them?” said Tripician.

Even for value-driven companies like PPMC, converting hog housing is a massive investment in infrastructure. “It’s excruciating to find four more feet [per animal],” he said. So, he understands the reaction from the big pork producers toward the immense changes—and the financial risks—demanded by Proposition 12.

In a typical industrial-scale sow barn, 5,000 animals stand in stalls in which they cannot turn around, Tripician explained. Reduce the number to give them each 50 percent more space and the operation bleeds money if it doesn’t raise its prices considerably. “The meat industry is really good at driving cost out of things and then taking that slim margin as an excuse to not make improvements,” he said. “It’s very scary for them.”

For Coleman’s contract farmers to buy in, Tripician knew that the company had to make their individual investments pay off. As a result, Coleman provided a capital fund for renovations while paying its farmers 25 percent more than commodity prices.

Graphic courtesy of Coleman Natural Foods.

This motivated Ohio farmer Brandt to convert his hog barns, a change that forced him to reduce his herd size from 1,800 to 1,500 with an average of 29 square feet per pig. His costs have increased $5–$10 per 100 pigs, and he admits that group housing requires more work and animal husbandry. But he was surprised when his average litter size increased from 11 to 13 piglets.

“We’ve lost no production,” he said. “The sows are happier, they’re easier to manage, and it has blown my mind,” he said.

But farmers are a diverse group, and even within Coleman, not all of the farmers are at Brandt’s stage. Currently, 40 percent of its producers are in compliance with Proposition 12, but more of its farmers are working to meet California’s requirements because they believe in it and want to stay ahead of the curve.

Currently, Coleman is reportedly the only commercial pork company in compliance with California’s and Massachusetts’ farm animal laws. And while it is ramping up production, niche meat companies like it only constitute 4 percent of the industry. Tripician anticipates a price increase by $.20 to $.50 per pound.

With Californians consuming 15 percent of the total U.S. pork supply, shortages and price increases seem like a given. “It will be very interesting to see what happens,” said Ruth from Clemens. “There is no way that the pork industry will be ready with compliant product.”

However, market experts and animal welfare groups expect that major pork producers will ultimately be powerless in the face of pressure from retailers. And they will likely be compelled to comply.

The Power of Consumer Markets

A February 2019 survey of supermarket decision makers found that over a three-year period, 70 percent of buyers were more motivated to stock humane animal products due to strong sales trends. The report suggested that higher-welfare animal products could follow the sales trajectory of organic foods, “creating a strong burst of consumer demand, pushing these products to the forefront of retailer and supplier plans.”

In the face of the economic crisis caused by the pandemic, value-driven shopping behaviors such as organic products and No Antibiotics Ever meats have dropped slightly, according to Chris DuBois, senior vice president of protein practice for the market research company IRI. But, he adds, “This is just a blip.”

According to new research, 81 percent of grocery consumers view transparency as important for the products they buy, especially when it comes to animal products. And meat purchases have shot up by 31 percent over previous years. “There is a focused group of consumers that pays attention to how animals are treated,” Dubois said. “If the consumers put their foot down, you’ll see the change.”

But a recent report from the global animal rights nonprofit World Animal Protection reveals how far the industry still needs to go to match the demand for humanely raised pork. Between 2012 and 2015, hundreds of U.S. corporations (including fast food restaurants, food service companies, and retailers) pledged to end the use of gestation crates in their supply chain.

While 16 of the 56 companies included in the report have made progress on their goals within five years, others have not followed through, and one-third have abandoned their commitments altogether.

Dubois pointed out that the companies are working on the crate issue, but the actual changes are far from simple. “It’s not as easy as putting words on the page,” he said.

Cameron Harsh, World Animal Protection’s farming campaign manager, said that even after working directly with companies on their animal welfare commitments, transparency is an ongoing issue. “We don’t have information from producers in their progress toward crate free,” he said. It can be hard to know how much progress companies have made or what they’re planning.

Albertsons and Walmart did not respond to Civil Eats request for information. Costco’s corporate spokesperson responded but declined to comment on the retailer’s plans to comply with Proposition 12.

AIdi US, in the middle of a major expansion that includes California, is on pace to become the third largest retailer after Walmart and Costco. The German-owned company is held up as a model of sustainability, but according to animal welfare groups, the chain’s buying policy falls short of establishing a strong commitment to eliminate gestation crates from its supply chain on a clear timeline. (The company did not respond to repeated requests for comment.)

Harsh sees a need for more accountability for all stakeholders that includes compliance mechanisms and legal ramifications. In this regard, “Proposition 12 goes a long way,” he said.

Lyle from CDFA described how the agency’s Animal Care Program will enforce the law “to ensure Californians have confidence that the purchases they make . . . . come from animals raised under the standards overwhelmingly approved in 2018.” The CDFA plans to oversee third-party verifications and shipping documents for products entering the state, and it will conduct investigations of non-compliance.

In working with national food brands, Harsh said that despite what often amounts to resistance to change, they are very much aware of trends in animal welfare and the regulations in California, Massachusetts, and other states.

“It’s really top of mind,” he said. “It’s the end of 2020, and 2022 is not far away.”

This article was updated to reflect the fact that the NPPC court challenge to Prop. 12 is still underway, while the NAMI legal challenge was rejected. This article was also updated to correct the location of PPMC’s farms, and Coleman’s goal to comply with California regulations.