Background

In 2016, Massachusetts voters passed ballot question 3 (“Question 3”), codified as MGL c 129 App. Sec. 1-11. Question 3 imposes minimal animal-raising requirements for hogs, veal calves, and egg-laying hens raised in Massachusetts and for those animals (in any location) used to create whole pork meat, whole vela meat, eggs, and egg products sold in Massachusetts. The requirements for whole vela meat, eggs, and egg products (and veal calves and egg-laying hens) are already in effect. Legislative amendments in late 2021 extended the effective date for whole pork meat requirements to August 15, 2022.

Massachusetts’s Question 3 requirements are similar to those in California’s Proposition 12, which has been challenged in a case that will be heard by the Supreme Court this term, National Pork Producers Council v. Ross.

Procedural History

On August 3, 2022, Massachusetts Restaurant Association sued Maura Healey, Attorney General of Massachusetts, and John Lebeaux, Commissioner of the Massachusetts Department of Agricultural Resources (MDAR), in their official capacities in United States District Court for the District of Massachusetts seeking declaratory and injunctive relief.¹ Plaintiffs allege MGL c 129 App. Sec. 1-3(C) (which contains the Question 3 prohibitions on the sale of whole pork meat in Massachusetts from noncompliant hogs) and the implementing regulations violate the Commerce Clause because they impose a burden on interstate commerce and have an extraterritorial impact by effectively controlling conduct beyond the Commonwealth of Massachusetts. Plaintiffs sought a preliminary injunction and expedited briefing, and the court ordered the parties to confer on an expedited basis to determine whether they could reach a resolution or agree to a stay pending the Supreme Court’s decision on the Proposition 12 case.

Current Posture

On August 11, 2022, the court granted a joint motion to stay with stipulations. The court ordered proceedings to be stayed until 30 days following the United States Supreme Court’s decision in the Proposition 12 case, National Pork Producers Council v. Ross, on the grounds that decision “may generate controlling law that will substantially clarify, if not govern in whole or in part, the legal issues in this action.” As part of the order, Massachusetts has agreed not to enforce the provisions prohibiting the sale of noncompliant whole pork meat for the duration of the stay. The non-enforcement agreement applies to parties to the case and non-parties. Massachusetts has further agreed not to “enforce the Pork Sale Rules against any Plaintiff or non-party for any conduct that occurs during the Stay Period.”

Specifically, under the stay order, the Attorney General of Massachusetts and MDAR may not enforce for the duration of the stay:

• The statutory provision prohibiting the sale of noncompliant whole pork meat (MGL c 129 App. Sec 1-3(C));

• The regulatory provision prohibiting the sale of noncompliant whole pork meat (330 CMR Sec. 35.04(1)(1)); and

• Official Guidance issued by the Massachusetts Department of Agricultural Resources (e.g., the Frequency Asked Question document issued July 11, 2022).

The order only relates to provisions that apply to the sale of pork. Massachusetts may continue to enforce Question 3 with respect to the sale of whole veal meat, eggs, and egg products.

* * *

We will continue to monitor developments with Question 3. References