Massachusetts Attorney General Andrea Joy Campbell and  Massachusetts Commissioner of Agriculture Ashley Campbell, the defendants being sued in federal court by Midwest pork producers, have until Nov. 7 to respond to a motion for a partial summary judgment.

The plaintiffs, who are challenging Massachusetts Question 3 (from the 2016 ballot), are Triumph Foods, LLC, Christensen Farms Midwest, LLC, The Hanor Company of Wisconsin, LLC, New Fashion Pork, LLP, Eichelberger Farms, Inc., and Allied Producers’ Cooperative

Question 3 imposes animal confinement requirements on pork producers outside of Massachusetts and prevents pork from being sold in the state unless the animals are housed consistent with the Q3 requirements, regardless of where the animals are raised.

As such, Q3 is similar to California’s Proposition 12, which earlier this year was upheld by the U.S. Supreme Court.

The Massachusetts litigation was filed with the U.S. District Court for the state July 25.   It “challenges the constitutionality of Massachusetts’ Question 3 Minimum Size Requirements for Farm Animal Containment (“Question 3”), passed by Massachusetts voters on November 8, 2016, which imposes confinement requirements on out-of-state pork producers and prohibits the sale of pork meat within the State of Massachusetts from offspring of a covered animal (as from now on defined) confined in a manner inconsistent with Massachusetts’ Minimum Size Requirements (as after this defined), regardless of where in the nation the animal was raised.”

The pork producers say that Q3’s “Minimum Size Requirements are inconsistent with pork industry practices and standards, generations of farming experience, scientific research, and the consensus standards of other states.” 

They contend that Q3 “will impose costly mandates that substantially interfere with commerce among the states in hog and pork markets. It will impose substantial burdens on pig farmers and pork processors primarily outside of Massachusetts, ultimately having a direct impact on the price of pork for all Americans — the vast majority of whom had no say in the Act — in the interstate pork market. It will take years and cost at least tens of millions of dollars for pig farmers to comply with the Regulations.”

In the latest twist, the pork producers have asked the federal District Court to grant a partial summary judgment on the plaintiff’s dormant Commerce Clause Claim.

Here’s how they explained the rationale for the motion:  “There are two ways for a plaintiff to demonstrate a violation of the dormant Commerce Clause. First, a plaintiff can demonstrate that a statute discriminates against out-of-state economic interests to benefit in-state economic interests. 

“Second, a plaintiff can demonstrate that the law violates the balancing test the Supreme Court announced in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), which asks whether the burdens on interstate commerce outweigh the putative local benefits of the statute.

“ Here, the first basis — discrimination — is the sole focus of this partial motion for summary judgment.”

While it might seem to be going over ground that was settled by the Prop 12 cases, the high court did acknowledge that these laws could raise other constitutional issues that did not come up in California 

The pork producers recognize that “Massachusetts is “absolutely entitled to regulate farming practices at farms within its borders,” but not all others.

In doing so, it discriminates against out-of-state economic interests to advance its own.

Attorney generals from 13 pork-producing states have filed a brief in support of the Midwest pork producers. They claim their states will lose hundreds of millions of dollars, and Q3 will set a dangerous precedent by upending markets over political agendas. 

Judge William G. Young, the senior federal judge in Massachusetts, has scheduled  a 7-day bench trial for the case to commence on Monday, Dec. 4 at 9 a.m. 

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