Last month, the U.S. Supreme Court heard oral arguments in National Pork Producers Council v. Ross, a Ninth Circuit case out of California dismissing a challenge to Proposition 12, which bans the sale of whole pork from the offspring of breeding sows confined in a manner that California voters consider “cruel.” National Pork might appear to be just another dormant Commerce Clause case, but it has the potential to change the nature of regulation throughout the United States. That is because Proposition 12 does not ban pork that has arguably harmful health effects on Californians, but rather it bans pork produced in a manner that California voters consider immoral. The combination of those two elements—(1) a ban based not on a characteristic of the product, but rather on an aspect of the production process, and (2) relying on moral disapproval, rather than more traditional and tangible concerns, such as promoting the health and safety of residents or protecting the local environment—makes National Pork a potentially far-reaching case.
Michael S. Knoll & Ruth Mason, Is the Biggest Supreme Court Case This Term About Bacon?, The Regulatory Review (November 14, 2022).