Good news! Extreme confinement ban upheld in Massachusetts

U.S. district judge rejects yet another failed argument by pork producers.

July 26, 2024

The mother pigs have won again. A federal judge in Boston has upheld a Massachusetts law that prohibits the in-state sale of pork, veal, and eggs produced using extreme confinement.

The ruling by U.S. District Judge William Young on Monday, July 22, is another major victory for animal welfare advocates, including Kirkpatrick Policy Group (KPG), following the affirmation of a similar California law in 2023 by the Supreme Court of the United States.

At issue was Question 3, a 2016 ballot initiative approved by Massachusetts voters by an overwhelming 78 percent. The law prohibits breeding sow pigs, calves raised for veal, and egg-laying hens from being housed in extreme confinement, defined as that which “prevents the animal from lying down, standing up, fully extending its limbs, or turning around freely.” The animals are completely immobilized during their lives.

The plaintiffs included Enid-based Hanor and Missouri-based Triumph Foods. Triumph has extensive business ties with Seaboard Foods, a company with a major pork operation in the Oklahoma panhandle. The plaintiffs sought to stop the enforcement of the Massachusetts Prevention of Farm Animal Cruelty Act, alleging that the Federal Meat Inspection Act (FMIA) preempts Question 3’s enforcement.

In his ruling, Judge Young wrote that because the FMIA regulates slaughterhouses, not farming operations, “Slaughterhouses can easily comply with both federal requirements and the requirements imposed by [Question 3] because the act does not impose any new requirements on slaughterhouses within the scope of the FMIA.”

The pork producers claimed the law acts as a penalty to noncompliant producers because they would have to change their business practices, but Young disagreed, writing, “the practical effect of [Question 3] is that a slaughterhouse that wishes to sell whole pork meat in Massachusetts must be able to identify whether that meat originated from a compliant pig.”

The ruling serves to confirm what animal advocates have known for years, that extreme confinement is cruel and unpopular with voters, and laws banning extreme confinement are legal and constitutional. “Massachusetts voters said no to extreme confinement in a landslide vote nearly eight years ago, and the federal courts have again upheld their right to reject this form of institutionalized cruelty to animals,” said Wayne Pacelle, president of Animal Wellness Action, who helped craft Question 3. “[Massachusetts] voters don’t want to purchase meat from animals immobilized in cages. What part of this anti-cruelty decision-making by its consumers does the pork industry not understand?”

The legal victory for farm animal welfare comes one year after the U.S. Supreme Court upheld California’s Proposition 12. That law, passed by voter initiative in 2018, also banned the sale of pork, veal, and eggs produced using extreme confinement. Since implementation, a cottage industry of Prop 12 accredited certifying agents has blossomed across the country (and Canada, Ireland, and the United Kingdom) as pork producers in other states are coming to terms with the new regulations. The California Department of Food and Agriculture also certifies operations to be Prop 12 compliant.

“Isn’t it time to rid Oklahoma of these abominable, morally offensive, abusive practices?” said KPG board member Louisa McCune. “The few people in our state who support gestation crates for pregnant mother pigs are the State Capitol lobbyists who are actively misleading their Big Pork clients. Extreme confinement is a giant stain on our state. Moreover, the staggering financial benefits of converting to open-pen housing far outweigh the current crate system in Oklahoma. By making the transition away from crates, Oklahoma pork producers stand to earn $235 million more annually. Pork company executives should welcome meetings with us—and again we extend an invitation—to solve this problem once and for all.”

A total of eleven U.S. states have now banned the use of gestation crates: Arizona, California, Colorado, Florida (the first state to do so), Maine, Massachusetts, Michigan, New Jersey, Ohio, Oregon, and Rhode Island. Additionally, sixty of the largest companies and brands in American food retail, including McDonald’s and Costco, have pledged to stop sourcing their pork products from operations that use crates. Gestation crates, first introduced in 1964 and measuring about 6.6 feet long by two feet wide, are largely believed to be the cruelest device in modern animal agriculture and are widely used in Oklahoma.

The case for group sow housing in Oklahoma

Although industrial-scale corporate farming has only existed in the Sooner State for about thirty years, Oklahoma’s pork lobbyists have firmly resisted the national trend away from extreme confinement. Since lawmakers exempted swine and poultry operations from Oklahoma’s anti-corporate farming law in 1991, family farmers have suffered while corporate farms have flourished. In one decade (1990 to 2000), the number of Oklahoma-hired farm workers fell by 72 percent. The 2020 U.S. Census showed that Oklahoma’s rural counties are losing population while urban and suburban counties grow.

Hog farming statistics tell the same story. From 1997 to 2012, the number of hog farms in Oklahoma decreased by 46 percent, while the average inventory per farm more than doubled. By 2017, 95 percent of Oklahoma’s entire hog inventory was controlled by just thirty-three farms.

Oklahoma’s pork industry is dominated by just a few entities, aided by the Oklahoma Department of Agriculture, Food and Forestry, and the Oklahoma State Legislature, whose ranks have been infiltrated by corporate lobbyists and whose leadership has been commandeered by industrial animal agriculture advocates getting elected or appointed to public office. Foreign and multi-national corporations are winning, and rural Oklahomans are losing.

Oklahoma’s pork industry is ranked eighth among all U.S. pork producing states, according to the Oklahoma Pork Council. Known as the “baby pig state,” Oklahoma produces an annual crop of 9.35 million pigs, the vast majority of which are born from sows living in gestation crates and giving birth in farrowing crates, slightly larger stalls that allow the piglets to nurse.

Using the National Pork Producers Council’s own, inflated estimates from its Supreme Court legal filing, it would cost approximately $348 million (at the most) to convert every sow barn in the United States to newly constructed group housing, a little over one percent of the national pork industry’s annual revenue. For Oklahoma, that translates to a maximum price tag of about $23.6 million to make every Oklahoma hog farm crate-free, according to Kirkpatrick Foundation, which says it can be done for far less. For context, Seaboard Foods received about $60 million in tax incentives to build its Guymon, Oklahoma, pork processing plant in the 1990s.

To feed the millions of hogs now being produced, farmers in arid northwest Oklahoma have switched to water-intensive crops irrigated by groundwater pumped from the Ogallala Aquifer. Today, sections of the Ogallala have been reported dry, and a new report from the nonprofit media outlet Investigate Midwest shows a dramatic decline in groundwater availability since Seaboard opened its plant in the 1990s. Just this year, the City of Guymon received $20 million from state coffers to increase its municipal water utility capacity. Seaboard Foods is Guymon’s largest utility customer.

KPG championed legislation at the Oklahoma State Capitol the past two years to offer hog farmers voluntary economic incentives to transition from gestation crates to group housing. These job-creation bills would have created a $4 million fund within the Oklahoma Department of Commerce to provide grants to farmers who want to or already have removed gestation crates from their operations. However, legislators with close ties to the Oklahoma Pork Council and the Oklahoma Farm Bureau—House Agriculture Chair Dell Kerbs and Senate Agriculture and Rural Affairs Chair Chris Kidd (not seeking reelection in 2024)—blocked the bills from being heard in committee.

The pork industry claims the move to group housing would increase prices. However, replacing gestation crates with group pens would cost only approximately $.06 more per retail pound of pork to produce, said Dr. Bailey Norwood PhD, agriculture economist at Oklahoma State University in Stillwater. By contrast, the average American is willing to pay up to $.45 more per retail pound, according to data collected during consumer experiments, Norwood said.

OSU’s dean of the Division of Agricultural Sciences and Natural Resources, Dr. Jayson Lusk, who co-authored a book with Norwood titled Compassion, by the Pound: The Economics of Farm Animal Welfare, has argued against laws banning extreme confinement on the grounds that they would increase prices for those products. Meanwhile, animal science students at the Stillwater campus are still taught to use industrial animal agriculture techniques like gestation crates. Influential academic and Colorado State University animal science professor Temple Grandin has no use for the immobilizing crates, saying in 2007: “I’ve been around the industry for 35 years, and you know, we’ve got a lot of young people in the industry now that don’t know anything different than sow stalls, but in the ‘70s all the sows were living in [open] pens, and they were just fine.”

According to a 2017 poll conducted by Lake Research, 91 percent of Oklahomans believe that farm animals should have enough room to stand up, stretch their limbs, and turn around in any crate, cage, or pen. Oklahoma is home to several crate-free and cage-free farms. One of them, Prairie Creek Farms, is located on eighty acres in Kellyville, near Tulsa, where its operators raise chicken, beef, eggs, and Berkshire pork. The farm supplies crate-free pork and cage-free chicken and eggs to hundreds of families and more than a dozen restaurants across the state. “Every animal at the farm has a really great life, and one bad day,” said co-owner Nate Beaulac.

EATS Act equals bad policy

The pork industry is not ready to give up its terrible animal-welfare practices just yet.

As Congress considers an updated version of the Farm Bill, the federal government’s comprehensive food and agricultural policy framework, new language called the Ending Agricultural Trade Suppression Act (lobbied for by the NPPC and the Oklahoma Pork Council) has been added. The language would bar state and local governments from passing their own food production and distribution regulations to help farmers, effectively overturning laws like Prop 12 and Question 3.

The EATS Act is controversial—KPG firmly opposes it, joining hundreds of farm groups—representing just one spoke in a legislative wheel that covers everything from crop insurance to food stamps. As recently as July 23, the chairs of the House and Senate agriculture committees, Representative Glenn Thompson (R-Pennsylvania) and Senator Debbie Stabenow (D-Michigan), respectively, accused the other of stalling the bill, according to Politico. The expiration of the 2018 Farm Bill has been extended to September 30 while Congress attempts to work out its policy differences.

If passed, the EATS Act language would unwind the political will of millions of voters, disrupt free market demand for crate-free and cage-free products, and betray the limited government principles its sponsors often preach, not to mention officially endorsing an institution of animal cruelty that is perpetuated by corporate factory farms for the sole purpose of providing profits to shareholders.

KPG urges constituents to contact their members of Congress and demand that the EATS Act language be removed from the 2024 Farm Bill.

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