National Pork Producers Council; American Farm Bureau Federation v. Karen Ross

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL PORK PRODUCERS
COUNCIL; AMERICAN FARM BUREAU
FEDERATION,
Plaintiffs-Appellants,
v.
KAREN ROSS, in her official capacity
as Secretary of the California
Department of Food & Agriculture;
TOMÁS J. ARAGÓN, in his official
capacity as Director of the California
Department of Public Health; ROB
BONTA,* in his official capacity as
Attorney General of California,
Defendants-Appellees,
and
THE HUMANE SOCIETY OF THE
UNITED STATES; ANIMAL LEGAL
DEFENSE FUND; ANIMAL EQUALITY;
THE HUMANE LEAGUE; FARM
SANCTUARY; COMPASSION IN
No. 20-55631
D.C. No.
3:19-cv-02324-
W-AHG
OPINION
* Rob Bonta is substituted for his predecessor, Xavier Becerra, as
Attorney General of California; and Tomás J. Aragón is substituted for his
predecessor, Sonia Angell, as Director of the California Department of
Public Health. Fed. R. App. 43(c)(2).

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 2
WORLD FARMING USA;
COMPASSION OVER KILLING,
Intervenor-Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Argued and Submitted April 14, 2021
Pasadena, California
Filed July 28, 2021
Before: Milan D. Smith, Jr. and Sandra S. Ikuta, Circuit
Judges, and John E. Steele,** District Judge.
Opinion by Judge Ikuta
** The Honorable John E. Steele, United States District Judge for the
Middle District of Florida, sitting by designation.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 3
SUMMARY***
Constitutional Law
The panel affirmed the district court’s dismissal for
failure to state a claim of an action filed by the National Pork
Producers Council and the American Farm Bureau
Federation, seeking declaratory and injunctive relief on the
ground that California’s Proposition 12 violates the dormant
Commerce Clause in banning the sale of whole pork meat (no
matter where produced) from animals confined in a manner
inconsistent with California standards.
The panel held that the complaint did not plausibly plead
that Proposition 12 violates the dormant Commerce Clause
by compelling out-of-state producers to change their
operations to meet California standards and thus
impermissibly regulating extraterritorial conduct outside of
California’s borders. First, Proposition 12 does not dictate
the price of a product and does not tie the price of in-state
products to out-of-state prices. Further, the interconnected
nature of the pork industry does not mean that Proposition
12’s extraterritorial impact violates the underlying principles
of the dormant Commerce Clause. The panel held that the
complaint plausibly alleged that Proposition 12 has an
indirect practical effect on how pork is produced and sold
outside California, but such upstream effects do not violate
the dormant Commerce Clause. The panel also held that
California’s promulgation of regulations to implement
Proposition 12, which, as a practical matter, may result in the
*** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 4
imposition of complex compliance requirements on out-of-
state farmers, does not have an impermissible extraterritorial
effect.
The panel further held that the complaint did not plausibly
plead that Proposition 12 violates the dormant Commerce
Clause by imposing excessive burdens on interstate
commerce without advancing any legitimate local interest.
The panel concluded that alleged cost increases to market
participants and customers did not qualify as a substantial
burden to interstate commerce for purposes of the dormant
Commerce Clause.
COUNSEL
Timothy S. Bishop (argued) and Brett E. Legner, Mayer
Brown LLP, Chicago, Illinois; Dan Himmelfarb and Colleen
M. Campbell, Mayer Brown LLP, Washington, D.C.; Travis
Cushman, American Farm Bureau Federation, Washington,
D.C.; Michael C. Formica, National Pork Producers Council,
Washington, D.C.; for Plaintiffs-Appellants.
R. Matthew Wise (argued), Deputy Attorney General; Mark
R. Beckington, Supervising Deputy Attorney General;
Thomas S. Patterson, Senior Assistant Attorney General;
Attorney General’s Office, Sacramento, California; for
Defendants-Appellees.
Bruce A. Wagman (argued), Riley Safer Holmes & Cancila
LLP, San Francisco, California; Rebecca A. Cary and Ralph
E. Henry, Humane Society of the United States, Washington,
D.C.; for Intervenor-Defendants-Appellees.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 5
Catherine E. Stetson and Danielle Desaulniers Stempel,
Hogan Lovells US LLP, Washington, D.C.; Patrick Hedren
and Erica Klenicki, Manufacturers’ Center for Legal Action,
Washington, D.C.; Stephen P. Lehotsky and Jonathan D.
Urick, U.S. Chamber Litigation Center, Washington, D.C.;
Stephanie K. Harris, FMI—The Food Industry Association,
Arlington, Virginia; Scott Yager, National Cattlemen’s Beef
Association, Washington, D.C.; Katie Sweeney, National
Mining Association, Washington, D.C.; for Amici Curiae
National Association of Manufacturers, Chamber of
Commerce of the United States of America, FMI—The Food
Industry Association, National Cattlemen’s Beef Association,
and National Mining Association.
Curtis T. Hill Jr., Attorney General; Thomas M. Fisher,
Solicitor General; Kian J. Hudson, Deputy Solicitor General;
Julia C. Payne, Deputy Attorney General; Office of the
Attorney General, Indianapolis, Indiana; Steven Marshall,
Alabama Attorney General; Clyde Sniffen Jr., Alaska
Attorney General; Leslie Rutledge, Arkansas Attorney
General; Christopher M. Carr, Georgia Attorney General;
Tom Miller, Iowa Attorney General; Derek Schmidt, Kansas
Attorney General; Jeff Landry, Louisiana Attorney General;
Eric Schmitt, Missouri Attorney General; Timothy C. Fox,
Montana Attorney General; Doug Peterson, Nebraska
Attorney General; Wayne Stenehjem, North Dakota Attorney
General; Dave Yost, Ohio Attorney General; Mike Hunter,
Oklahoma Attorney General; Alan Wilson, South Carolina
Attorney General; Jason R. Ravnsborg, South Dakota
Attorney General; Ken Paxton, Texas Attorney General; Sean
D. Reyes, Utah Attorney General; Patrick Morrisey, West
Virginia Attorney General; Bridget Hill, Wyoming Attorney
General; for Amici Curiae Indiana, Alabama, Alaska,
Arkansas, Georgia, Iowa, Kansas, Louisiana, Missouri,

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 6
Montana, Nebraska, North Dakota, Ohio, Oklahoma, South
Carolina, South Dakota, Texas, Utah, West Virginia, and
Wyoming.
Robert S. Brewer Jr., United States Attorney; Michael S.
Raab and Thomas Pulham, Appellate Staff; Civil Division,
United States Department of Justice, Washington, D.C.;
Carrie F. Ricci, Associate General Counsel, Department of
Agriculture, Washington, D.C.; for Amicus Curiae United
States.
Brian M. Boynton and Amy Lishinksi, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C., for Amici
Curiae Association of California Egg Farmers and Pacific
Egg & Poultry Association.
Matthew G. Berkowitz and Yue (Joy) Wang, Shearman &
Sterling LLP, Menlo Park, California; L. Kieran Kieckhefer,
Shearman & Sterling LLP, San Francisco, California; Ian E.
Roberts, Shearman & Sterling LLP, Dallas, Texas; for Amici
Curiae Health Care Without Harm, National Council for
Occupational Safety and Health, Consumer Federation of
America, and Food & Water Watch.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 7
OPINION
IKUTA, Circuit Judge:
In 2018, California voters passed Proposition 12, which
bans the sale of whole pork meat (no matter where produced)
from animals confined in a manner inconsistent with
California standards. The National Pork Producers Council
and the American Farm Bureau Federation (collectively
referred to as “the Council”) filed an action for declaratory
and injunctive relief on the ground that Proposition 12
violates the dormant Commerce Clause. Under our
precedent, a state law violates the dormant Commerce Clause
only in narrow circumstances. Because the complaint here
does not plausibly allege that such narrow circumstances
apply to Proposition 12, we conclude that the district court
did not err in dismissing the Council’s complaint for failure
to state a claim.
I
Proposition 12 amended sections 25990–25993 of the
California Health and Safety Code to “prevent animal cruelty
by phasing out extreme methods of farm animal confinement,
which also threaten the health and safety of California
consumers, and increase the risk of foodborne illness and
associated negative fiscal impacts on the State of California.”
Cal. Prop. 12, § 2 (2018). The relevant portion of Proposition
12 precludes a business owner or operator from knowingly
engaging in a sale within California of various products,
including the sale of “[w]hole pork meat” unless the meat was
produced in compliance with specified sow confinement
restrictions. Cal. Prop. 12, § 3(b) (2018); see Cal. Health &
Safety Code §§ 25990(b)(1)–(2), 25991(e)(1)–(4).

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 8
On December 5, 2019, the Council filed a complaint
against California officials (referred to collectively as the
California defendants) challenging Proposition 12 and
seeking, among other things, a declaratory judgment that
Proposition 12 is unconstitutional under the dormant
Commerce Clause, and a permanent injunction enjoining the
implementation and enforcement of Proposition 12.1 The
complaint alleged that Proposition 12 violates the dormant
Commerce Clause in two ways. First, it impermissibly
regulates extraterritorial conduct outside of California’s
borders by compelling out-of-state producers to change their
operations to meet California standards. Second, it imposes
excessive burdens on interstate commerce without advancing
any legitimate local interest because it significantly increases
operation costs, but is not justified by any animal-welfare
interest and “has no connection to human health or foodborne
illness.”
On April 27, 2020, the district court granted the
California defendants’ motion to dismiss and the intervenors’
motion for judgment on the pleadings. The district court held
that Proposition 12 did not impermissibly control
extraterritorial conduct and did not impose a substantial
burden on interstate commerce. Although the district court
had granted the Council leave to amend, the Council instead
moved for entry of judgment, and the district court dismissed
the complaint with prejudice. The Council timely appealed.
We have jurisdiction under 28 U.S.C. § 1291, and review
de novo the district court’s order granting a motion to dismiss
for failure to state a claim under Rule 12(b)(6) of the Federal
1 On January 9, 2020, several nonprofit organizations were granted
intervention as defendants (referred to collectively as the intervenors).

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 9
Rules of Civil Procedure, Cousins v. Lockyer, 568 F.3d 1063,
1067 (9th Cir. 2009), and the district court’s order granting a
motion for judgment on the pleadings under Rule 12(c) of the
Federal Rules of Civil Procedure, Lyon v. Chase Bank USA,
N.A., 656 F.3d 877, 883 (9th Cir. 2011). At the motion to
dismiss stage, we take as true the facts plausibly alleged in
the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009).
II
The Constitution grants Congress the power to “regulate
Commerce . . . among the several States.” U.S. Const. art. I.,
§ 8, cl. 3. The Commerce Clause does not, on its face,
impose any restrictions on state law in the absence of
congressional action. Nonetheless, “[f]rom early in its
history,” the Supreme Court has interpreted the Commerce
Clause as implicitly preempting state laws that regulate
commerce in a manner that is disruptive to economic
activities in the nation as a whole. See South Dakota v.
Wayfair, Inc., 138 S. Ct. 2080, 2090 (2018); Gibbons v.
Ogden, 22 U.S. (9 Wheat.) 1, 200–01 (1824). In its most
recent consideration of the scope of the dormant Commerce
Clause, the Court stated there are “two primary principles that
mark the boundaries of a State’s authority to regulate
interstate commerce.” Wayfair, 138 S. Ct. at 2090. “First,
state regulations may not discriminate against interstate
commerce; and second, States may not impose undue burdens
on interstate commerce.” Id. at 2091. Although “State laws
that discriminate against interstate commerce face ‘a virtually
per se rule of invalidity,’” id. (quoting Granholm v. Heald,
544 U.S. 460, 476 (2005)), “State laws that ‘regulat[e] even-
handedly to effectuate a legitimate local public interest . . .
will be upheld unless the burden imposed on such commerce

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 10
is clearly excessive in relation to the putative local benefits,’”
id. (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142
(1970)). Wayfair indicated that these two principles are
“subject to exceptions and variations.” Id. Among other
things, Wayfair cited an earlier decision holding that a state
law may violate the dormant Commerce Clause when it has
extraterritorial effects. Id. (citing Brown-Forman Distillers
Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986)).
The Council does not argue that the complaint has
plausibly pleaded that Proposition 12 discriminates against
out-of-state interests, and so has foregone the first principle
recognized in Wayfair. Instead, it argues the second Wayfair
principle, that Proposition 12 places an undue burden on
interstate commerce, and the Brown-Forman variation, that
Proposition 12 has an impermissible extraterritorial effect. At
the motion to dismiss stage, we must determine whether the
Council has plausibly pleaded a dormant Commerce Clause
claim under its theories.
A
The Council’s primary argument is that the complaint
adequately alleges that Proposition 12 has an impermissible
extraterritorial effect.
1
In making this claim, the Council relies primarily on three
historical Supreme Court cases that first delineated when a
state law violates the dormant Commerce Clause by
impermissibly regulating prices in other states. See Baldwin
v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935); Brown-Forman,
476 U.S. at 579; Healy v. Beer Inst., Inc., 491 U.S. 324

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 11
(1989). In Baldwin, the Court struck down a New York law
that required a dealer selling milk in New York to pay an out-
of-state milk producer the minimum price set by New York
law in order to equalize the price of milk from in-state and
out-of-state producers. 294 U.S. at 518–19. As the Court
later explained, the New York law in Baldwin was “aimed
solely at interstate commerce attempting to affect and
regulate the price to be paid for milk in a sister state, [which]
amounted in effect to a tariff barrier set up against milk
imported into the enacting state.” Milk Control Bd. of Pa. v.
Eisenberg Farm Prods., 306 U.S. 346, 353 (1939). In
Brown-Forman, the Court invalidated a New York law
requiring every liquor distiller or producer selling to
wholesalers within the state to affirm that the prices charged
for every bottle or case of liquor were no higher than the
lowest price at which the same product would be sold in any
other State during the month covered by the particular
affirmation. 476 U.S. at 576. The Court concluded that the
price-affirmation law was invalid because it had the
“practical effect” of requiring “producers or consumers in
other States to surrender whatever competitive advantages
they may possess,” by forcing them to sell their product in-
state for a set price. 476 U.S. at 580, 583. Last, Healy struck
down a Connecticut price-affirmation statute that, in
interaction with the laws in the neighboring states, had the
practical effect of controlling prices in those states, causing
an anti-competitive result. 491 U.S. at 337–39.
These cases used broad language. For instance, Healy
states that the extraterritoriality principle “protects against
inconsistent legislation arising from the projection of one
state regulatory regime into the jurisdiction of another State,”
and “precludes the application of a state statute to commerce
that takes place wholly outside of the State’s borders, whether

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 12
or not the commerce has effects within the [regulating]
State.” Id. at 336–37 (cleaned up). But such broad
statements are “so sweeping that most commentators have
assumed that these cases cannot mean what they appear to
say.” Katherine Florey, State Courts, State Territory, State
Power: Reflections on the Extraterritoriality Principle in
Choice of Law and Legislation, 84 Notre Dame L. Rev. 1057,
1090 (2009); see also Jack L. Goldsmith & Alan O. Sykes,
The Internet and the Dormant Commerce Clause, 110 Yale
L.J. 785, 806 (2001) (suggesting that the Court’s “overbroad
extraterritoriality dicta” can be ignored). The
extraterritoriality test cannot strictly bar laws that have
extraterritorial effect, scholars argue, because “[i]n practice,
states exert regulatory control over each other all the time.”
Gillian E. Metzger, Congress, Article IV, and Interstate
Relations, 120 Harv. L. Rev. 1468, 1521 (2007) (noting, for
example, “Delaware’s corporate law, which has de facto
nationwide application”).
And indeed, the Supreme Court has given force to these
scholarly observations, as it has indicated that the
extraterritoriality principle in Baldwin, Brown-Forman, and
Healy should be interpreted narrowly as applying only to
state laws that are “price control or price affirmation
statutes,” Pharm. Rsch. & Mfrs. of Am. v. Walsh, 538 U.S.
644, 669 (2003). We have adopted this interpretation and
held that the extraterritoriality principle is “not applicable to
a statute that does not dictate the price of a product and does
not tie the price of its in-state products to out-of-state prices.”
Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris
(Eleveurs), 729 F.3d 937, 951 (9th Cir. 2013) (cleaned up).
The Tenth Circuit has followed suit. See Energy & Env’t
Legal Inst. v. Epel, 793 F.3d 1169, 1172 (10th Cir. 2015)
(Gorsuch, J.) (holding that the “three essential characteristics”

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 13
that mark Baldwin, Brown-Forman, and Healy are that the
state law at issue (1) was a price-control statute, (2) linked
prices paid in-state with those paid out-of-state, or
(3) discriminated against interstate commerce).
Under this narrow interpretation, Baldwin, Brown-
Forman, and Healy do not support the Council’s arguments.
It is undisputed that Proposition 12 is neither a price-control
nor price-affirmation statute, as it neither dictates the price of
pork products nor ties the price of pork products sold in
California to out-of-state prices. See Eleveurs, 729 F.3d
at 951. And the Council has not claimed that Proposition 12
discriminates against interstate commerce.
2
The Council nevertheless asks us to hold that Proposition
12’s extraterritorial impact violates the underlying principles
of the dormant Commerce Clause in light of the unique nature
of the pork industry. According to the allegations of the
complaint, the pork industry is highly interconnected. A
single hog is butchered into many different cuts which would
normally be sold throughout the country. In order to ensure
they are not barred from selling their pork products into
California, all the producers and the end-of-chain supplier
will require assurances that the cuts and pork products come
from hogs confined in a manner compliant with Proposition
12. This means that all pork suppliers will either produce
hogs in compliance with California specifications or incur the
additional cost of segregating their products. As a practical
matter, given the interconnected nature of the nationwide
pork industry, all or most hog farmers will be forced to
comply with California requirements. The cost of
compliance with Proposition 12’s requirements is high, and

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 14
would mostly fall on non-California transactions, because
87% of the pork produced in the country is consumed outside
California. Therefore, the complaint alleges, Proposition 12
violates the dormant Commerce Clause given its substantial
extraterritorial impact as a practical matter.
The Council’s theory is not barred by Walsh’s
characterization of the Baldwin line of cases as being limited
to price-control and price-affirmation statutes. We have
recognized that the Supreme Court has not expressly
narrowed the extraterritoriality principle to only price-control
and price-affirmation cases, and we have recognized a
“broad[er] understanding of the extraterritoriality principle”
may apply outside this context, Ward v. United Airlines, Inc.,
986 F.3d 1234, 1240–41 (9th Cir. 2021). But even though the
Council’s complaint plausibly alleges that Proposition 12 has
an indirect “practical effect” on how pork is produced and
sold outside California, we have rejected the argument that
such upstream effects violate the dormant Commerce Clause.
Under our precedent, state laws that regulate only conduct
in the state, including the sale of products in the state, do not
have impermissible extraterritorial effects. See Rosenblatt v.
City of Santa Monica, 940 F.3d 439, 445 (9th Cir. 2019). A
state law may require out-of-state producers to meet
burdensome requirements in order to sell their products in the
state without violating the dormant Commerce Clause. See
Rocky Mountain Farmers Union v. Corey (Rocky II),
913 F.3d 940, 952 (9th Cir. 2019); Eleveurs, 729 F.3d at 942.
Even if a state’s requirements have significant upstream
effects outside of the state, and even if the burden of the law
falls primarily on citizens of other states, the requirements do
not impose impermissible extraterritorial effects. See
Eleveurs, 729 F.3d at 942, 948–53. A state law is not

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 15
impermissibly extraterritorial unless it directly regulates
conduct that is wholly out of state. Rosenblatt, 940 F.3d at
442, 445 (holding that a city ordinance restricting vacation
rentals in a California city did not violate the dormant
Commerce Clause even though 95% of vacation rentals in the
city involved an out-of-state party, because the ordinance
penalized only conduct within the city).
The Council’s allegations regarding the upstream effects
of Proposition 12 are most closely analogous to those we
rejected in Eleveurs. 729 F.3d at 942. In Eleveurs, plaintiffs
argued that a law banning the sale in California of certain
duck products made by force feeding the duck violated the
extraterritoriality principle because it controlled commerce
outside of California. According to the plaintiffs, the law
targeted out-of-state entities and compelled out-of-state
farmers to comply with California’s standards. Id. at 949.
We held that the plaintiff’s argument failed because the state
law applied to “both California entities and out-of-state
entities,” and the law merely precluded “a more profitable
method of operation—force feeding birds for the purpose of
enlarging its liver—rather than affecting the interstate flow of
goods.” Id.
The requirements under Proposition 12 likewise apply to
both California entities and out-of-state entities, and merely
impose a higher cost on production, rather than affect
interstate commerce. Therefore, even though Proposition 12
has some upstream effects, California is “free to regulate
commerce and contracts within [its] boundaries with the goal
of influencing the out-of-state choices of market
participants.” Rocky Mountain Farmers Union v. Corey
(Rocky I), 730 F.3d 1070, 1103 (9th Cir. 2013); see also
Eleveurs, 729 F.3d at 948–49 (“A statute is not invalid merely

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 16
because it affects in some way the flow of commerce between
the States.” (cleaned up)).
For the same reason, California’s promulgation of
regulations to implement Proposition 12, which, as a practical
matter, may result in the imposition of complex compliance
requirements on out-of-state farmers, does not have an
impermissible extraterritorial effect. Proposition 12 required
the California Department of Food and Agriculture (CDFA)
to publish implementing regulations. Cal. Prop. 12 § 6
(2018); Cal. Health & Safety Code § 25993(a). Under the
proposed regulations,2 an out-of-state producer must hold a
valid California certification in order to sell its products in
California. CDFA, Proposed Regulations at 30 (May 28,
2021) (proposing to adopt California Code of Regulations
Title 3, § 1322.1(b)). And to obtain the certification, a
producer must “allow access by the certifying agent, and/or
authorized representatives of the Department, to . . . houses
where covered animals and covered animal products may be
kept . . . .” Id. at 40 (proposing to adopt § 1326.1(c)). Once
certified, pork-producing operations must also comply with
the recordkeeping requirements. Id. at 40–41 (proposing to
adopt § 1326.2).
2 The complaint alleges that Proposition 12 charges California
agencies with promulgating regulations to implement the proposition.
After oral argument was held in this appeal, CDFA published proposed
regulations implementing Proposition 12. The proposed regulations are
located at http://www.cdfa.ca.gov/ahfss/pdfs/regulations/AnimalConfin
ementText1stNotice_05252021.pdf. See also 22-Z Cal. Regulatory Notice
Reg. 594 (May 28, 2021).
Although the CDFA has published the proposed regulations, it has not
yet promulgated a final version.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 17
Even assuming these proposed regulations become
effective, “[a]ppropriate certificates may be exacted” from
out-of-state producers for in-state health and safety purposes
without violating the dormant Commerce Clause. Baldwin,
294 U.S. at 524. Indeed, in Rocky I, we held that a California
law did not impermissibly regulate extraterritorial conduct
even though it required out-of-state fuel distributors “to seek
regulatory approval in California before undertaking a
transaction also in California” and imposed reporting
requirements on out-of-state producers. 730 F.3d at 1104.
Therefore, the proposed regulations’ requirement that out-of-
state producers seek a California certification in order to
access the California market is not an impermissible
extraterritorial effect.
3
The Council relies on a handful of cases in which we
determined that a state law had an impermissibly
extraterritorial effect because it directly regulated transactions
conducted entirely out of state. In Daniels Sharpsmart, Inc.
v. Smith, we struck down a California law requiring a
company that sent medical waste out of state for disposal to
use only a medical waste facility that met California
requirements. 889 F.3d 608, 612–13, 615–16 (9th Cir. 2018).
The transaction at issue in that case (the purchase of medical
waste disposal services from out-of-state treatment facilities
in Kentucky and Indiana) occurred wholly outside California.
Id.; see also Sam Francis Found. v. Christies, Inc., 784 F.3d
1320, 1323 (9th Cir. 2015) (en banc) (striking down a law
that required California residents to pay five percent of their
sales price in out-of-state art sale transactions to the artists).
And in National Collegiate Athletic Ass’n v. Miller, we held
that a statute had extraterritorial effect because it was

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 18
“directed at interstate commerce and only interstate
commerce,” given that “it regulates only interstate
organizations, i.e., national collegiate athletic associations
which have member institutions in 40 or more states.”
10 F.3d 633, 638 (9th Cir. 1993); see also Legato Vapors,
LLC v. Cook, 847 F.3d 825, 833 (7th Cir. 2017) (invalidating
a state law which “govern[ed] the services and commercial
relationships between out-of-state manufacturers and their
employees and contractors”). Citing Daniels Sharpsmart and
Miller, the Council argues that Proposition 12 necessarily
controls transactions conducted among out-of-state pork
producers, processors, distributors and sellers of pork
products, because it compels them to ensure that pork
products that may eventually be sold in California are
traceable to hogs that have been confined in a manner that
meets California requirements.
The Council’s reliance on the Daniel Sharpsmart line of
cases is misplaced, because Proposition 12 does not regulate
transactions conducted wholly outside of California. Rather,
Proposition 12 directly regulates only the in-state sales of
“products that are brought into or are otherwise within the
borders of [California].” Daniels Sharpsmart, 889 F.3d
at 615. Nor does Proposition 12 directly regulate interstate
commerce; rather, by its terms, it is aimed at the in-state sales
of pork, regardless whether it is produced by in-state or out-
of-state farmers. We have not extended the Daniel
Sharpsmart line of cases to a situation where the state law
had an upstream effect only as a practical matter on out-of-
state transactions. As explained above, we have rejected
similar arguments relying on this theory. See Eleveurs,
729 F.3d at 942; see also Epel, 793 F.3d at 1174 (holding that
the Supreme Court has rejected the “grand[] proposition” that
the Baldwin line of cases “require [courts] to declare

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 19
automatically unconstitutional any state regulation with the
practical effect of controlling conduct beyond the boundaries
of the State” (cleaned up)).
4
Finally, the Council argues that Proposition 12 violates
the dormant Commerce Clause because it poses a risk of
inconsistent regulations that undermines a “compelling need
for national uniformity in regulation.” See Gen. Motors
Corp. v. Tracy, 519 U.S. 278, 299 n.12 (1997). While
Wayfair did not overrule this principle (so it may be deemed
a “variation” of the two primary principles of the dormant
Commerce Clause), see 138 S. Ct. at 2090–91, we have held
that only “state regulation of activities that are inherently
national or require a uniform system of regulation” violates
the dormant Commerce Clause, Rosenblatt, 940 F.3d at 452
(quoting Chinatown Neighborhood Ass’n v. Harris, 794 F.3d
1136, 1146 (9th Cir. 2015)); see also Ward, 986 F.3d at 1242
(holding that to prevail on the contention that it will
inevitably be subjected to a patchwork of inconsistent
regulations, a party must show that the challenged state law
“regulates in an area that requires national uniformity”).
Absent such a need for uniform national regulation, a state
regulation does not violate the dormant Commerce Clause
even where there is a threat of conflicting regulations. See
Chinatown, 794 F.3d at 1146–47. The “small number” of
cases dealing with “activities that are inherently national or
require a uniform system of regulation” generally concern
taxation or interstate transportation. See Rosenblatt, 940 F.3d
at 452 (quoting Chinatown, 794 F.3d at 1146). Unless the
state law at issue interferes with a system of national concern,
it does not violate the dormant Commerce Clause. Thus in
Eleveurs, we held that “Plaintiffs have not demonstrated that

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 20
a nationally uniform foie gras production method is required
to produce foie gras.” 729 F.3d at 950. Likewise, neither
optometrists nor gas producers demonstrated a need for
national uniformity in their economic activities. See Nat’l
Ass’n of Optometrists & Opticians v. Harris, 682 F.3d 1144,
1148 (9th Cir. 2012); Rocky I, 730 F.3d at 1104–05.
The complaint here fails to make a plausible allegation
that the pork production industry is of such national concern
that it is analogous to taxation or interstate travel, where
uniform rules are crucial. See Gen. Motors Corp., 519 U.S.
at 298 n.12. Although the complaint plausibly alleges that
Proposition 12 will have an impact on a national industry, we
have already held that such impacts do not render the state
law impermissibly extraterritorial. Accordingly, the
complaint fails to state a claim on this basis.3
B
We now turn to the Council’s second argument that
Proposition 12 imposes a burden on interstate commerce
which is “clearly excessive in relation to the putative local
3 In any event, the Council has not shown that a threat of “conflicting,
legitimate legislation[s]” by other jurisdictions is “both actual and
imminent.” Rocky I, 730 F.3d at 1104–05 (emphasis added) (quoting S.D.
Myers v. City of San Francisco, 253 F.3d 461, 469–70 (9th Cir. 2001)).
According to an amicus brief, “Massachusetts, Maine, Michigan, and
Rhode Island have enacted animal-confinement laws similar” or “nearly
identical” to California’s current confinement rules. The Council points
to Ohio’s regulations, see Ohio Admin. Code 901:12-8-02(G)(4), (5), but
while they differ in approach from Proposition 12, compliance with both
sets of regulations is possible. In short, while it is plausible that other
states will implement laws regulating pork meat production, the referenced
laws demonstrate that the Council has not stated a plausible claim that the
various regulations will be conflicting.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 21
benefits” and thus violates the dormant Commerce Clause.
Pike, 397 U.S. at 142. The Supreme Court has not provided
a clear methodology for comparing in-state benefits and out-
of-state burdens, but at the motion to dismiss stage a
complaint must, at a minimum, “plausibly allege the
ordinance places a ‘significant’ burden on interstate
commerce.” Rosenblatt, 940 F.3d at 452.
We have held that a statute imposes such a significant
burden only in rare cases. “[M]ost statutes that impose a
substantial burden on interstate commerce do so because they
are discriminatory.” Eleveurs, 729 F.3d at 952. As indicated
above, the Council does not allege that Proposition 12 has a
discriminatory effect. “[L]ess typically, statutes impose
significant burdens on interstate commerce as a consequence
of inconsistent regulation of activities that are inherently
national or require a uniform system of regulation.” Id.
(cleaned up). As we have explained, the complaint here does
not plausibly allege that Proposition 12 falls into the narrow
class of state laws that meets this requirement.
For dormant Commerce Clause purposes, laws that
increase compliance costs, without more, do not constitute a
significant burden on interstate commerce. “The mere fact
that a firm engaged in interstate commerce will face increased
costs as a result of complying with state regulations does not,
on its own, suffice to establish a substantial burden on
interstate commerce.” Ward, 986 F.3d at 1241–42. Nor does
a non-discriminatory regulation that “precludes a preferred,
more profitable method of operating in a retail market” place
a significant burden on interstate commerce. Nat’l Ass’n of
Optometrists, 682 F.3d at 1154–55. Finally, even a state law
that imposes heavy burdens on some out-of-state sellers does
not place an impermissible burden on interstate commerce.

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 22
In Exxon Corp. v. Governor of Maryland, the Supreme Court
held that even where the burdens imposed by a Maryland law
would cause some refiners to stop selling in Maryland, and
would deprive consumers of some special services, the law
did not impermissibly burden interstate commerce. 437 U.S.
117, 127 (1978). While some refiners “may choose to
withdraw entirely from the Maryland market,” it was
reasonable to assume that they would “be promptly replaced
by other interstate refiners.” Id. “[I]nterstate commerce is
not subjected to an impermissible burden simply because an
otherwise valid regulation causes some business to shift from
one interstate supplier to another.” Id.; see also Rosenblatt,
940 F.3d at 453 (holding that a city ordinance did not violate
the dormant Commerce Clause merely because it shifted
tourism dollars from vacation rentals to hotels).
In this case, the crux of the allegations supporting the
Council’s substantial burden claim is that the cost of
compliance with Proposition 12 makes pork production more
expensive nationwide. The complaint alleges that, to comply
with Proposition 12’s requirements, “producers will have to
expend millions in upfront capital costs and adopt a more
labor-intensive method of production.” The cost of
compliance would result in a 9.2 percent increase in
production cost, which would be passed on to consumers, and
producers that do not comply with Proposition 12 would lose
business with packers that are supplying the California
market.
Taking the plausible allegations in the complaint as true
and making all reasonable inferences in the Council’s favor,
we conclude that these alleged cost increases to market
participants and customers do not qualify as a substantial
burden to interstate commerce for purposes of the dormant

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 23
Commerce Clause. “[A] loss to [some specific market
participants] does not, without more, suggest that the [state]
statute impedes substantially the free flow of commerce from
state to state.” Burlington N. R.R. Co. v. Dep’t of Pub. Serv.
Regul., 763 F.2d 1106, 1114 (9th Cir. 1985) (cleaned up).
Even if producers will need to adopt a more costly method of
production to comply with Proposition 12, such increased
costs do not constitute a substantial burden on interstate
commerce. Eleveurs, 729 F.3d at 952. Nor do higher costs
to consumers qualify as a substantial burden on interstate
commerce. See Nat’l Ass’n of Optometrists, 682 F.3d
at 1152. “[I]f the statute caused the loss [to some sellers] and
therefore caused harm to the consuming public, such a result
would be related to the wisdom of the statute, not to a burden
on interstate commerce.” Id. (citing Exxon, 437 U.S.
at 127–28)).
Accordingly, the district court did not err in holding that,
as a matter of law, the Council failed to state a claim that
Proposition 12 imposes a substantial burden on interstate
commerce. Because the complaint failed to make a plausible
allegation to that effect, the district court was correct in
concluding that it “need not determine whether the benefits
of the challenged law are illusory.” See Rosenblatt, 940 F.3d
at 452.
III
While the dormant Commerce Clause is not yet a dead
letter, it is moving in that direction. Indeed, some justices
have criticized dormant Commerce Clause jurisprudence as
being “unmoored from any constitutional text” and resulting
in “policy-laden judgments that [courts] are ill equipped
and arguably unauthorized to make,” Camps

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NATIONAL PORK PRODUCERS COUNCIL V. ROSS 24
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564,
610, 618 (1997) (Thomas, J., dissenting). Under our
precedent, unless a state law facially discriminates against
out-of-state activities, directly regulates transactions that are
conducted entirely out of state, substantially impedes the flow
of interstate commerce, or interferes with a national regime,
a plaintiff’s complaint is unlikely to survive a motion to
dismiss. Even though the Council has plausibly alleged that
Proposition 12 will have dramatic upstream effects and
require pervasive changes to the pork production industry
nationwide, it has not stated a violation of the dormant
Commerce Clause under our existing precedent.
AFFIRMED.

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