California Issues Updated Proposed Regulations Implementing Proposition 12

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California’s updated proposed Proposition 12 regulations would make incremental changes.  Comments are due December 17.

The California Department of Agriculture (CDFA) has issued updated proposed regulations (“the Updated Proposed Regulations”) that would implement the Farm Animal Confinement Initiative, more commonly known as Proposition 12 (Prop 12).1   Prop 12 imposes minimum confinement standards for egg-laying hens, veal calves, and pigs used to create shell eggs, liquid eggs,2 whole veal meat, and whole pork meat sold in California.  In the proposed regulations issued over the summer,3 CDFA proposed defining the scope of products and transactions covered by Prop 12, recordkeeping and documentation requirements, registration requirements, and a third-party certification scheme, among other details.  The Updated Proposed Regulations make modest changes to the earlier proposed regulations in response to stakeholder comments.  They do not indicate a change the pending January 1, 2022, compliance date for breeding pig minimum confinement standards.  This summary briefly identifies key changes in the Updated Proposed Regulations. 

CDFA has opened a short 15-day comment period.  Comments are due December 17, 2021, and CDFA has asked that comments be limited to the changes identified in the Updated Proposed Regulations.  

Key Changes In the Updated Proposed Regulations

The Updated Proposed Regulations include changes and clarifications to the following areas:4

Scope of Coverage of the Prop 12 Requirements

  • Further clarifies that sales are deemed to occur where the recipient “takes physical possession” of the covered food, without regard to title transfer, use of agents, or other contractual terms.

  • Revises the proposed definition of a “commercial sale” to remove “offer for sale,” “expose for sale,” and “possesses for sale” from the definition, which in turn affects what conduct is covered by Prop 12. 

  • Clarifies that sales made directly to federal agencies, made on federal lands, or made on tribal lands are not subject to Prop 12.  

  • In the definition of “Flavoring,” clarifies that the reference to substances listed in 21 CFR Part 184 applies only to “substances with a use described as a flavoring, flavoring agent, or flavoring enhancer.”  

Marking and Labeling Requirements

  • Changes the required marking on shipping and title documents to:

    • For shell eggs and liquid eggs: “Egg CA Prop 12 Compliant.”

    • For whole veal meat:  “Veal CA Prop 12 Compliant.”

    • For whole pork meat:  “Pork CA Prop 12 Compliant.” 

  • Eliminates the proposed requirement to include a Prop 12 statement on cartons of shell eggs.

  • For covered products not destined for commercial sale in California, shortened the required statement on shipping documents to “For Export,” “For Transport,” (applies to shell or liquid eggs), “For Transshipment” (applies to whole veal meat and whole pork meat),5 or “Not Prop 12 Compliant.”

  • For covered products destined for further processing at an establishment inspected by the United States Department of Agriculture’s Food Safety and Inspection Service (FSIS), the shipping documents must be marked “Only for use at [identify the establishment number]”.  The establishment number must include the prefix “G” or “M” (depending on whether it’s an egg products plant or a meat processing establishment).

Minimum Confinement Requirements

  • Eliminates specific enclosure requirements that would have applied prior to January 1, 2022 (e.g., the requirement that egg-laying hens be provided a minimum of 144 square inches of usable floor space) under the rationale that the regulations will not be finalized before January 1, 2022.

  • Adds an exemption to the minimum confinement requirements for breeding pigs during the five-day period prior to the breeding pig’s expected date of giving birth and for any day that the breeding pig is nursing piglets.

Effective Dates

  • Pushes back by one year the effective dates for distributor registration and third-party certification:

    • The effective date for distributor registration would be pushed back to January 1, 2023.

    • Parties would be able to self-certify compliance with the requirements (instead of needing a third-party certification) through the end of 2023.  Starting January 1, 2024, third-party certifications would be required. 

  • The Updated Proposed Regulations do not change the January 1, 2022, effective date for the 24-square foot minimum enclose size for breeding pigs.

Enforcement and Related Issues

  • Removes references to “other enforcement officers” and clarifies through explanatory language that CDFA officers will be the only state officials charged with enforcing the requirements. 

  • Establishes a formal process for appealing adverse determinations. 

  • Requires that appeals of certification decisions be made within 30 days. 

Next Steps

CDFA has opened the Updated Proposed Regulations to a short 15-day public comment period.  Comments are due December 17, and CDFA has asked that comments be limited to the changes made in the updated proposal.  Please do not hesitate to contact us if you have any questions or would like assistance formulating comments.

References

1 California Department of Food and Agriculture, Animal Health and Food Safety Services, Proposed Regulations, Farm Animal Confinement (November 30, 2021) (to be codified at Cal. Code Regs. tit. 3, ch. 10), https://www.cdfa.ca.gov/ahfss/pdfs/regulations/ACP15dayCommentPeriodDocuments.pdf.

2 Under Prop 12, “liquid eggs” encompasses more than just eggs in liquid form.

3 See California issues proposed regulations under the Farm Animal Confinement Initiative (Prop 12), Hogan Lovells Engage (June 10, 2021), https://www.engage.hoganlovells.com/knowledgeservices/news/california-issues-proposed-regulations-under-the-farm-animal-confinement-initiative-prop-12.

4 This list assumes background familiarity with earlier proposed regulations.  This is not an exhaustive list, and affected companies should review the Updated Proposed Regulations carefully.  Further, the Updated Proposed Regulations also include updates to the administrative record and CDFA’s supporting explanation for the proposal.

5 The Updated Proposed Regulations do not explain why shell eggs and liquid eggs would be marked “For Transport” whereas whole veal meat and whole pork meat would be marked “For Transshipment.”

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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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