Fur ban and food production regulations may be unconstitutional

California’s commerce clause cage-fight

By Will Coggin and Michael Tenenbaum

Can California impose its costly regulations on businesses in the other 49 states—raising prices for all Americans—and even ban the sale of safe and wholesome products to Californians? This question, currently before federal courts, has wide-ranging implications for consumers across the Nation.

This month, the International Fur Federation sued San Francisco to invalidate its ban on the sale of clothing that includes any amount of animal fur. The ban allows leather and lambskin but declares fur “unnecessary.” Even fur products certified as humane are now prohibited.

Just last month, the National Pork Producers Council and American Farm Bureau Federation sued California over Proposition 12, a voter initiative passed in 2018. It bans the sale of pork and eggs in California based on the size of the animals’ enclosures — even if the animals are raised entirely in Iowa, North Carolina, or another locale.

Even Louisiana has a beef with California. The Bayou State and various farmers are suing to overturn a ban on alligator products that was set to take effect this month.

These product bans don’t only harm Californians by taking away their consumer choices. They also project California’s regulations onto businesses in other states (and countries), disregarding the laws already protecting animals in those jurisdictions.

Pork and egg producers around the country who wish to continue selling into California must now comply with California’s onerous farming mandates.

Consumers have long had the choice to buy costlier cage-free eggs. Yet, USDA data shows that only about 18% of retail egg sales are from cage-free birds; thus, 82% of eggs sold nationwide would not satisfy California’s dictates. Farmers are also concerned about animal welfare: research from the Coalition for a Sustainable Egg Supply found that hens have twice the mortality rate in cage-free environments than in conventional or enriched cages.

Farmers across the country are now being forced to spend millions of dollars to reconfigure their barns or face exclusion from the California market. And what if another populous state comes up with a different requirement?

States can generally restrict interstate trade only in cases of harm to public health or safety. But California’s impetus for its bans on various apparel and proteins is the desire of animal liberation activists and their political allies to legislate morality over products that come from animals.

San Francisco supervisor Katy Tang justified the ban on fur by arguing that businesses “need to get with the times.” PETA believes that wool and leather—and even meat consumption and pet ownership—are immoral as well.

While California is free to place burdens on the production of goods within its borders, it cannot place blockades on interstate or foreign commerce.

The Constitution’s Commerce Clause was designed to ensure states didn’t engage in trade wars with one another or force each other to change their policies under threat of boycotts.

As the Supreme Court explained in H.P. Hood & Sons, Inc. v. DuMond, “Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the Nation, … and no [other] state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation.”

Imagine if Texas decided to ban products from “closed shop” workplaces in states like California because Texas believed forced union membership violates workers’ rights. Or if Mississippi decided to ban products from businesses whose health insurance plans covered abortions. Surely, California’s same politicians would be up in arms.

The courts should slap down California’s overreaches. But the legal process moves slowly. Congress should, therefore, make it a priority to pass legislation such as the Protect Interstate Commerce Act, which prevents states or local governments from banning safe and wholesome goods produced beyond their borders.

One state should not be allowed to dictate policies for the other 49. To have it otherwise would be undemocratic — and unconstitutional.

Michael Tennenbaum is counsel for the International Fur Federation and Will Coggin is managing director of the Center for Consumer Freedom.

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