California issues proposed regulations under the Farm Animal Confinement Initiative (Prop 12)

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The California Department of Food and Agriculture (CDFA) recently released long-awaited proposed regulations to implement Proposition 12, the Farm Animal Confinement Initiative (the proposed regulations). [1] The proposed regulations identify the requirements for covered products, including detailed requirements on animal confinement systems, as well as requirements for labeling, facility registrations, auditing and certification, and record-keeping. 

This alert focuses primarily on the scope of entities and products covered by Prop 12, which has generated considerable confusion since Prop 12 passed in 2018. The proposed regulations are detailed, and potentially affected food companies involved in California supply chains should review them carefully in their entirety.

Background on Prop 12

California statute

In 2018, California voters approved the Farm Animal Confinement Initiative (Prop 12), which amended sections 25990 - 25994 of the California Health and Safety Code to create wide-reaching confinement requirements for certain food-producing animals when products of those animals are sold in California.[2]  

Among other specifics, Prop 12 identifies “covered animals” to include veal calves, breeding pigs, and egg-laying hens kept on farms, and requires that covered animals be housed in confinement systems that comply with specific standards for freedom of movement, cage-free design, and minimum floor space.

Prop 12 prohibits a farm owner or operator from knowingly causing any covered animal to be confined in a cruel manner, and prohibits a business owner or operator from knowingly engaging in the sale within the state of shell eggs, liquid eggs, whole pork meat, or whole veal meat from animals housed in a cruel manner.

California regulations

Prop 12 specifies that the CDFA and the California Department of Public Health (CDPH) must jointly promulgate Prop 12 regulations. 

The law required that the regulations be issued by 1 September 2019. However, since 2018, the CDFA/CDPH have released two sets of preproposal draft regulations and issued requests for information to help develop the regulatory framework.  

Now, the CDFA has issued proposed regulations to implement Prop 12. The proposed regulations would apply Prop 12’s restrictions to sales in California of covered eggs, liquid egg products, pork, and veal, although the restrictions would not apply to retail stores, restaurants, and some further processors.  The proposed regulations would also create a registration requirement for distributors distributing a covered product into California and certification requirement for producers raising covered food-producing animals that will be used to produce covered foods in California. Key high-level take-aways on the proposed regulations are below.[3

Key definitions and covered sales under the proposed regulations

The proposed regulations would prohibit egg producers/distributors, veal producers/distributors, and pork producers/distributor[4] from knowingly selling or contract to selling within the state a covered product for human consumption if the covered product was not derived from an animal raised in accordance with Prop 12’s animal raising standards.[5]  

Covered products

The following products are covered under the regulation (i.e., are “covered products”):[6]

  • Eggs in their shell form, which is defined as an egg as developed, proportioned, and shaped in the shell by an egg-laying hen, whether it is in the shell, raw, pasteurized in the shell, treated in the shell, hardboiled, or otherwise cooked in whole form, peeled, co-packaged with other foods, or subsequently sold sliced, chopped or otherwise cut.
  • Liquid eggs, which is defined as eggs of an egg-laying hen broken from the shells, intended for human food, with the yolks and whites in their natural proportions, or with the yolks and whites separated, mixed, or mixed and strained, whether it is raw or pasteurized, co-packaged with other foods, or sold frozen, dried, freeze-dried, or as a cooked patty, puck, or other cooked form, and includes all of the following:
    • liquid eggs, dried eggs, frozen eggs, egg whites, frozen egg whites, egg yolks, dried egg yolks, and frozen egg yolks (as described by the relevant section in Title 21 of the CFR);
    • any mixture, irrespective of proportions, of two or more of the products specified in this subsection;
    • any product, or mixture of products, specified in this subsection to which has been added no more than sugar, salt, water, seasoning, coloring, flavoring, preservatives, stabilizers, or other similar food additives;[7
    • and any product represented to the customer as, or bearing the statement of identity of, liquid eggs, or any of the products specified in this subsection on the product label.
  • Whole veal meat, which is defined as any uncooked cut of veal, including chop, ribs, riblet, loin, shank, leg, roast, brisket, steak, sirloin, or cutlet, that is comprised entirely of veal meat, except for seasoning, curing agents, coloring, flavoring, preservatives, and similar meat additives.
  • Whole pork meat, which is defined as any uncooked cut of pork, including bacon, ham, chop, ribs, riblet, loin, shank, leg, roast, brisket, steak, sirloin, or cutlet, that is comprised entirely of pork meat, except for seasoning, curing agents, coloring, flavoring, preservatives, and similar meat additives.
Covered entities

The regulations would apply to “producers” and “distributors” of covered products, both explained below. The regulations would prohibit a producer or distributor of a covered product from selling or contracting to sell a covered product in the state of California unless the covered product was from an animal raised in compliance with Prop 12. Moreover, “distributors” would be required to register with the state, and “producers” would have to be certified. 

“Producers” and “Distributors” are defined as follows:

  • Producers are persons engaged in the business of producing eggs from domesticated chickens, turkeys, ducks, geese, or guineafowl; keeping, confining, and/or housing a calf of the bovine species, to be slaughtered at more than 21 days of age or more than 150 pounds, for the purpose of producing the human food product described, advertised, represented, identified, or labeled as veal; or keeping, maintaining, confining and/or housing a female pig of the porcine species that is six (6) months of age or older, or is pregnant, for the purpose of commercial breeding to produce pork meat for human food.
  • Distributors are persons or facilities engaged in the business of commercial sales or distribution of shell eggs or liquid eggs (as an egg producer or otherwise), whole veal meat (as a veal producer or otherwise), or whole pork meat (as a pork producer or otherwise) to an end user in California. This definition does not apply to a person or facility that only receives shell eggs or liquid eggs, whole veal meat, or whole pork meat as an end-user.
  • End-user (which is incorporated into the definition of a “distributor”) means any of the following:
    • A consumer;
    • A retailer that is not a producer and only conducts commercial sales directly to a consumer, without any further distribution, of product that was purchased or received from a distributor;
    • A food processing facility or cottage food operation that receives covered product solely for use as an ingredient to manufacture a combination food product that does not meet the product definitions; or
    • A restaurant, food facility, or other business that only cooks and serves pork meat, and/or serves only ready-to-eat pork meat, to customers, patrons or guests for purposes of consumption.

Registration, auditing, and certification under the proposed regulations

To help maintain oversight and ensure compliance, the proposed regulations create a registration, auditing, and certification system that would track and verify distributors and producers are complying with the proposed requirements.

Registration

Generally, distributors engaged in the commercial sale[8] of covered products within, or into, California would be required to obtain and hold a valid registration with the CFDA. Registration would be required for each facility location from which products would be sold, distributed, or otherwise supplied to the location of an end-user, and registrations would not transferable.

Auditing and required certification

Beginning 1 January 2023, any person engaged in business in California as a producer, or any out-of-state producer that is keeping, maintaining, confining, and/or housing an egg-laying hen, calves, or breeding pig for purposes of producing liquid or shell eggs, whole veal meat, or whole pork meat, from the egg-laying hen, calves, or breeding pig (or its immediate offspring), for human food use in California, would be required to hold a valid certification as a certified operation.[9] The requirements for certification are quite lengthy and proscriptive.

Moreover, the regulations would require that retailers and food processing facilities that are “end users” maintain certain records documenting the certifications for the covered products they receive. 

Penalties and enforcement

Persons violating Prop 12 provisions are guilty of a misdemeanor. Upon conviction, they can be fined up to US$1,000 and imprisoned in the county jail for up to 180 days (or both).

The proposed regulations provide that enforcement officers may seize and hold any product which they have reasonable suspicion to believe is in violation of the statute or regulations. “Reasonable suspicion” is not defined in the proposed regulations, which suggests that enforcement officers could have broad discretion when determining whether an entity is in compliance.

Next steps   

The CDFA is accepting comments on the proposed regulations until 12 July 2021. 

 

References

1    CDFA, Animal Health and Food Safety Services, Proposed Regulations, Animal Confinement (May 28, 2021), http://www.cdfa.ca.gov/ahfss/pdfs/regulations/AnimalConfinementText1stNotice_05252021.pdf.

2    See Cal. Health & Safety Code §§ 25990 et. seq.

3    Note, the proposed regulations are quite detailed and nuanced in scope. The key take-aways highlighted in this memorandum are intended to provide only an overview of the requirements. 

4    The proposed regulations actually have separate provisions for eggs, pork, and veal, but we present them together because they are largely parallel.  

5    Prop 12 imposes various requirements related to animal confinement, including minimum enclosure size and enrichments, which vary by animal species.    

6    Note, there are various exceptions for most of these definitions.

7    “Seasoning” is synonymous with the term “spice” and means any aromatic vegetable substance in the whole, broken, diced, or ground form, whose primary function in food is seasoning rather than nutritional and from which no portion of any volatile oil or other flavoring principle has been removed.  “Flavoring” for purposes of section 25991(l) of the Health and Safety Code and this Article means any substance, whether artificial or natural, the function of which is to impart flavor rather than nutrition.

8    “Commercial sale” means to sell, offer for sale, expose for sale, possess for sale, exchange, barter, trade, transfer possession, or otherwise distribute in California commerce including, but not limited to, transactions by a retailer with a consumer and electronic transactions made using the internet.

9    “Certification or certify” means a determination made by a certifying agent that a production or distribution operation is in compliance with Prop 12 and implementing regulations, which is documented by a certificate of California farm animal confinement compliance.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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