National Meat Ass'n v. Brown

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL MEAT ASSOCIATION, 

Plaintiff-Appellee,

and

AMERICAN MEAT INSTITUTE,

Plaintiff-intervenor,

v.

EDMUND G. BROWN, in his official

capacity as Attorney General of No. 09-15483

California; ARNOLD

SCHWARZENEGGER, in his official  D.C. No.

1:08-cv-01963-

capacity as Governor of

California; STATE OF CALIFORNIA, LJO-DLB

Defendants-Appellants,

and

THE HUMANE SOCIETY OF THE

UNITED STATES; FARM SANCTUARY,

INC.; HUMANE FARMING

ASSOCIATION; ANIMAL LEGAL

DEFENSE FUND,

Defendant-intervenors.



5067

5068 NATIONAL MEAT ASSOCIATION v. BROWN

NATIONAL MEAT ASSOCIATION, 

Plaintiff-Appellee,

and

AMERICAN MEAT INSTITUTE,

Plaintiff-intervenor,

v.

EDMUND G. BROWN, in his official

capacity as Attorney General of No. 09-15486

California; ARNOLD D.C. No.

SCHWARZENEGGER, in his official  1:08-cv-01963-

capacity as Governor of LJO-DLB

California; STATE OF CALIFORNIA,

OPINION

Defendants,

and

THE HUMANE SOCIETY OF THE

UNITED STATES; FARM SANCTUARY,

INC.; HUMANE FARMING

ASSOCIATION; ANIMAL LEGAL

DEFENSE FUND,

Defendant-intervenors-Appellants.



Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Argued and Submitted

August 11, 2009—San Francisco, California

Filed March 31, 2010

Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and

Barry G. Silverman, Circuit Judges.

NATIONAL MEAT ASSOCIATION v. BROWN 5069

Opinion by Chief Judge Kozinski

NATIONAL MEAT ASSOCIATION v. BROWN 5071

COUNSEL

Edmund G. Brown Jr., Attorney General of California, Doug-

las J. Woods, Acting Senior Assistant Attorney General, and

Susan K. Leach, Deputy Attorney General, Los Angeles, Cali-

fornia, for the defendants-appellants.

Sarah L. Conant and Peter A. Brandt, The Humane Society of

the United States, Washington, D.C.; and Bruce A. Wagman,

Schiff Hardin LLP, San Francisco California, for the

defendant-intervenor-appellants.

Steven J. Wells and Heather M. McCann, Dorsey & Whitney

LLP, Minneapolis, Minnesota, for the plaintiff-appellee.

OPINION

KOZINSKI, Chief Judge:

This is an interlocutory appeal from a preliminary injunc-

tion prohibiting the enforcement of California Penal Code

5072 NATIONAL MEAT ASSOCIATION v. BROWN

§ 599f, which bans the slaughter and inhumane handling of

nonambulatory animals, against federally regulated swine

slaughterhouses.

I

On January 30, 2008, The Humane Society released a video

depicting images of nonambulatory cows—cows that are

unable to stand or walk without assistance—being kicked,

electrocuted, dragged with chains and rammed with forklifts

at California’s Westland/Hallmark slaughterhouse. Footage

also showed some workers trying to get nonambulatory cows

to stand by spraying pressurized water into their noses to sim-

ulate drowning. Public health professionals warned that meat

from these “downer” cows was more likely to be diseased,

partly because animals can become nonambulatory due to dis-

ease and partly because downer animals grow sicker as they

end up rolling around in other animals’ refuse. The video trig-

gered the largest beef recall in United States history.

California responded by amending California Penal Code

§ 599f to provide that:

(a) No slaughterhouse, stockyard, auction, market

agency, or dealer shall buy, sell, or receive a nonam-

bulatory animal.

(b) No slaughterhouse shall process, butcher, or sell

meat or products of nonambulatory animals for

human consumption.

(c) No slaughterhouse shall hold a nonambulatory

animal without taking immediate action to humanely

euthanize the animal.

....

(e) While in transit or on the premises of a stock-

yard, auction, market agency, dealer, or slaughter-

NATIONAL MEAT ASSOCIATION v. BROWN 5073

house, a nonambulatory animal may not be dragged

at any time, or pushed with equipment at any time,

but shall be moved with a sling or on a stoneboat or

other sled-like or wheeled conveyance.

Cal. Pen. Code § 599f. Together these provisions: (1) ban the

receipt and slaughter of downer animals, id. § 599f(a)-(c); and

(2) require the humane handling of downer animals, id.

§ 599f(e).

Shortly before amended section 599f was to take effect,

National Meat Association (NMA)—a trade association repre-

senting packers and processors of swine livestock and pork

products—filed suit in federal district court against the State

of California seeking declaratory and injunctive relief barring

the application of section 599f to federally inspected swine

slaughterhouses.1 Some of its members claimed that section

599f would prevent the slaughter of approximately 2.5% of

their pigs. NMA argued that section 599f is preempted by the

Federal Meat Inspection Act (FMIA), violates the dormant

commerce clause and is unconstitutionally vague. The district

court entered a preliminary injunction on preemption grounds;2

the State of California and defendant-intervenors The

Humane Society, et al., who supported the bill amending sec-

tion 599f, bring this interlocutory appeal.

II

We review for abuse of discretion and will reverse if the

district court’s decision is based on an erroneous legal stan-

dard or clearly erroneous finding of fact. Stormans, Inc. v.

Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009). Preemption is

1

American Meat Institute, a trade association which represents meat

packagers and processors, intervened as a plaintiff but didn’t seek prelimi-

nary relief.

2

The district court didn’t reach the dormant commerce clause and

vagueness claims. Neither do we.

5074 NATIONAL MEAT ASSOCIATION v. BROWN

a legal issue we review de novo. Am. Trucking Ass’ns v. City

of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). Someone seek-

ing a preliminary injunction must demonstrate “that he is

likely to succeed on the merits, that he is likely to suffer irrep-

arable harm in the absence of preliminary relief, that the bal-

ance of equities tips in his favor, and that an injunction is in

the public interest.” Winter v. Natural Res. Def. Council, Inc.,

129 S. Ct. 365, 374 (2008).3

Receipt and Slaughter Ban

[1] Congress, as well as federal agencies, may expressly or

impliedly preempt state law. Barrientos v. 1801-1825 Morton

LLC, 583 F.3d 1197, 1208 (9th Cir. 2009). There is express

preemption where federal law explicitly preempts state law.

Altria Group, Inc. v. Good, 129 S. Ct. 538, 543 (2008). There

is implied preemption where federal law was intended to

occupy the legislative field or where state law conflicts with

federal law, either because it’s impossible to comply with

both laws or because state law stands as an obstacle to accom-

plishing the purposes of federal law. See id.; English v. Gen.

Elec. Co., 496 U.S. 72, 79 (1990). In either case, there’s a

strong presumption against preemption, especially when the

state law deals with matters like health and animal welfare,

which have historically been regulated by states. See Wyeth v.

Levine, 129 S. Ct. 1187, 1194-95 n.3 (2009).

1. Express Preemption. NMA argues, and the district

court held, that the FMIA expressly preempts section 599f’s

3

The district court applied our pre-Winter “sliding scale” approach,

which required only a “possibility of irreparable injury” if plaintiff is

likely to succeed on the merits. See Stormans, 586 F.3d 1126-27. In some

instances, this error may require remand for application of the Winter stan-

dard. Here, however, the district court found that NMA is likely to suc-

ceed and faces a significant threat of irreparable injury, and that the

balance of the equities and the public interest favors NMA. These findings

enable us to review the injunction under Winter without remanding for

application of the new standard.

NATIONAL MEAT ASSOCIATION v. BROWN 5075

ban on the receipt and slaughter of nonambulatory animals.

Under the FMIA, all animals are sent to federal inspection

before they enter a slaughterhouse where they are to be

slaughtered for meat capable of human consumption that will

be sold in commerce. 21 U.S.C. § 603(a). Regulations pursu-

ant to the FMIA require nonambulatory animals to be classi-

fied as “U.S. Suspect” and held for further examination. 9

C.F.R. § 309.2(b). If the downer animal shows signs of cer-

tain diseases upon inspection, it must be classified as “U.S.

Condemned” and disposed of according to specific proce-

dures. See id. §§ 309.4-309.18. But if the animal passes

inspection, it may be slaughtered and sold for human con-

sumption. See generally id. § 309.2.4

[2] The FMIA contains an express preemption provision:

Requirements within the scope of this chapter with

respect to premises, facilities and operations of any

establishment at which inspection is provided under

subchapter I of this chapter, which are in addition to,

or different than those made under this chapter may

not be imposed by any State . . . .

21 U.S.C. § 678 (emphasis added). Consistent with the pre-

sumption against preemption, we must give this provision a

narrow interpretation. See Air Cond. & Refrig. Inst. v. Energy

Res. Conserv. & Dev. Comm’n, 410 F.3d 492, 496 (9th Cir.

2005). More so because section 678 explicitly preserves for

the states broad authority to regulate slaughterhouses: “This

chapter shall not preclude any State . . . from making require-

ment[s] or taking other action, consistent with this chapter,

with respect to any other matters regulated under this chap-

ter.” 21 U.S.C. § 678.

4

All nonambulatory cattle, however, must be classified as U.S. Con-

demned and may not be slaughtered for human consumption. See 9 C.F.R.

§ 309.3(e).

5076 NATIONAL MEAT ASSOCIATION v. BROWN

[3] Starting, as we should, with the language of the statute,

we find no express preemption. Section 678 preempts state

regulation of the “premises, facilities and operations” of

slaughterhouses, and section 599f(a)-(c) deals with none of

these. Rather, it regulates the kind of animal that may be

slaughtered. Two circuits have held that the FMIA doesn’t

preempt state laws that do precisely that. Cavel Int’l, Inc. v.

Madigan, 500 F.3d 551 (7th Cir. 2007) (state ban on horse

slaughter not preempted); Empacadora de Carnes de Fres-

nillo v. Curry, 476 F.3d 326 (5th Cir. 2007) (same). These

cases explain that “[the FMIA] preemption clause expressly

limits states in their ability to govern meat inspection and

labeling requirements. It in no way limits states in their ability

to regulate what types of meat may be sold for human con-

sumption in the first place.” Empacadora, 476 F.3d at 333.

“Given that horse meat is produced for human consumption,

its production must comply with the [FMIA]. But if it is not

produced, there is nothing, so far as horse meat is concerned,

for the Act to work upon.” Cavel, 500 F.3d at 554. This

makes horse sense: Federal law may establish fireworks

safety standards, but that doesn’t preclude states from banning

fireworks. Similarly, the FMIA establishes inspection proce-

dures to ensure animals that are slaughtered are safe for

human consumption, but this doesn’t preclude states from

banning the slaughter of certain kinds of animals altogether.

The district court sought to distinguish Cavel and Empaca-

dora: “A nonambulatory pig is not a ‘type of meat.’ A pig is

a pig. A pig that is laying down is a pig. A pig with three legs

is a pig. A fatigued or diseased pig is a pig. Calling it some-

thing else does not change the type of meat produced.” In

effect, the district court reasoned that states may ban the

slaughter of certain species, but once a state allows a species

to be slaughtered, it cannot impose further restrictions. Hog-

wash.

[4] States aren’t limited to excluding animals from slaugh-

ter on a species-wide basis. What if a state wanted to ban the

NATIONAL MEAT ASSOCIATION v. BROWN 5077

slaughter of a specific breed of pig but not the entire species?

Or to allow wild dogs and horses to be slaughtered, but not

domesticated companions? And what if, in response to a pop-

ulation problem, a state only banned the slaughter of female

cattle? Or, perhaps due to ethical concerns, prohibited the

slaughter of pregnant or newborn animals, or the slaughter of

non-free-range animals? Regulating what kinds of animals

may be slaughtered calls for a host of practical, moral and

public health judgments that go far beyond those made in the

FMIA. These are the kinds of judgments reserved to the

states, and nothing in the FMIA requires states to make them

on a species-wide basis or not at all. Federal law regulates the

meat inspection process; states are free to decide which ani-

mals may be turned into meat.

It is possible that a state may go too far in regulating what

“kind of animal” may be slaughtered. For example, a state

may feel that federal inspection standards for diamond-skin

disease (9 C.F.R. § 311.6), arthritis (id. § 311.7) or sexual

odor of swine (id. § 311.20) are too lenient. The state may try

to establish stricter inspection standards, and style the new

standards as a regulation of the “kind of animal” that may be

slaughtered: “The kind of pig that tests positive under proce-

dure X for sexual odor may not be slaughtered.” Or enforce-

ment of a state regulation of what “kind of animal” may be

slaughtered might require certain inspections: “Pigs with

arthritis may not be slaughtered. Slaughterhouses shall per-

form Y and Z procedures to screen for the condition.” Such

regulations could effectively establish a parallel state meat-

inspection system.

[5] We need not decide what limits the express preemption

provision places on such regulations. California’s prohibition

of the slaughter of nonambulatory animals does not duplicate

federal procedures; it withdraws from slaughter animals that

are unable to walk to their death. This prohibition doesn’t

require any additional or different inspections than does the

FMIA, and is thus not a regulation of the “premises, facilities

5078 NATIONAL MEAT ASSOCIATION v. BROWN

and operations” of slaughterhouses. There is no express pre-

emption here.

[6] 2. Implied Preemption. NMA’s implied preemption

claim concerning section 599f’s ban on the receipt and

slaughter of nonambulatory animals fares no better. That 21

U.S.C. § 678 specifies “[t]his chapter shall not preclude any

State . . . from making requirement[s] or taking other action,

consistent with this chapter, with respect to any other matters

regulated under this chapter” shows that Congress didn’t

intend to occupy the field of slaughterhouse regulation, so

only conflict preemption is at issue. Conflict preemption is a

demanding standard, as courts won’t “seek[ ] out conflicts

between state and federal regulation where none clearly

exists.” English, 496 U.S. at 90 (internal quotation marks

omitted).

[7] It’s not physically impossible to comply with both sec-

tion 599f and the FMIA. FMIA inspection requirements apply

to animals that are to be slaughtered for human consumption.

See 21 U.S.C. §§ 603(a), 641. And nothing in the FMIA

requires the slaughter of downer animals for human consump-

tion. NMA hangs its impossibility argument on words like

“shall” in the federal regulations—for example, “[a]ll . . . non-

ambulatory disabled livestock shall be identified as U.S. Sus-

pects and disposed of as provided in § 311.1 of this subchap-

ter unless they are required to be classed as condemned under

§ 309.3.” 9 C.F.R. § 309.2(b) (emphasis added). But these

regulations don’t require the slaughter of downer animals; no

slaughterhouse operator would be fined by federal authorities

if he gave nonambulatory animals medical care and put them

up for adoption as pets. Federal regulations require inspection

if downer animals are to be slaughtered. See Cavel, 500 F.3d

at 553-54 (“When the [FMIA] was passed . . . it was lawful

in some states to produce horse meat for human consumption,

and since the federal government has a legitimate interest in

regulating the production of human food . . . it was natural to

make the Act applicable to horse meat. That was not a deci-

NATIONAL MEAT ASSOCIATION v. BROWN 5079

sion that states must allow horses to be slaughtered for human

consumption.”).5 Whether they may be slaughtered is up to

the states.

[8] Section 599f also isn’t an obstacle to accomplishing the

purposes of the FMIA.6 The FMIA was adopted to protect the

health and welfare of consumers “by assuring that meat and

meat food products distributed to them are wholesome, not

adulterated, and properly marked, labeled, and packaged.” 21

U.S.C. § 602; Pittsburgh Melting Co. v. Totten, 248 U.S. 1,

4-5 (1918); see also United States v. Stanko, 491 F.3d 408,

416-17 (8th Cir. 2007). Its purpose is certainly not to preserve

the slaughter of any kind of animal for human consumption.

Cavel, 500 F.3d at 554. Nor do we see any indication that

Congress intended to leave the choice of what kinds of ani-

mals to slaughter to individual slaughterhouses. Compare Fla.

Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 147-48

(1963) (federal law meant only to establish uniform minimum

standards of avocado quality to which states could add), with

Geier v. Am. Honda Motor Co., 529 U.S. 861, 881 (2000)

(“no airbag” tort claim preempted because federal law sought

5

NMA argues that, for the few animals that become nonambulatory

after being presented for federal inspection (rather than arriving at the

slaughterhouse nonambulatory), federal authorities must give their permis-

sion for release of these animals. That’s because 9 C.F.R. § 309.2(p) says

that, after an animal has been presented for inspection, “[w]hen a suspect

is to be released . . . for a purpose other than slaughter, the operator of the

official establishment or the owner of the animal shall first obtain permis-

sion for the removal of such animal . . . .” But state and local officials may

also release animals for purposes other than slaughter. 9 C.F.R. § 309.2(p).

Moreover, there’s no reason to suppose that federal officials wouldn’t

willingly give permission to euthanize downer animals. Cf. Wyeth, 129 S.

Ct. at 1198 (“[A]bsent clear evidence that the FDA would not have

approved a change to Phenergan’s label, we will not conclude that it was

impossible for Wyeth to comply with both federal and state require-

ments.”).

6

Contrary to NMA’s argument that California waived its objection to

the district court’s obstacle holding, California clearly addressed the issue

in its opening brief.

5080 NATIONAL MEAT ASSOCIATION v. BROWN

to preserve a variety of safety devices from which manufac-

turers could choose).

Section 599f would only serve as an obstacle to the FMIA

if its requirements were so onerous and confusing that it put

slaughterhouse compliance with federal inspection standards

at risk. Nothing in the record suggests that this is the case, nor

will we assume it to be. Cf. Empacadora, 476 F.3d at 334

(“The need for uniform meat packaging, inspection and label-

ing regulations is strong, lest meat providers be forced to mas-

ter various separate operating techniques to abide by

conflicting state laws. There is no similar need for uniformity

with regard to what types of meat states permit to be sold

. . . .”). Section 599f’s directive to slaughterhouses is simple:

When slaughterhouses see a nonambulatory animal, they can-

not slaughter it for human consumption but must euthanize it

immediately. There is no reason to believe that slaughter-

house employees who abide by this directive will have any

difficultly complying with federal inspection standards as to

those animals that will be slaughtered for food.7

Humane Handling Requirements

[9] Section 599f(e) provides that “[w]hile in transit or on

the premises of a stockyard, auction, market agency, dealer,

or slaughterhouse, a nonambulatory animal may not be

dragged at any time, or pushed with equipment at any time

. . . .” Federal law, by contrast, says that “[t]he dragging of

disabled animals and other animals unable to move, while

conscious, is prohibited. Stunned animals may, however, be

dragged.” 9 C.F.R. § 313.2(d)(2) (emphases added). And

while the FMIA’s inspection requirements apply to animals

7

NMA suggests that section 599f will prevent the examination of

downer animals for disease, hindering federal procedures designed to

identify and stem the spread of disease. Nothing in the record substantiates

this concern, and section 599f doesn’t prohibit post-mortem inspection of

downer animals.

NATIONAL MEAT ASSOCIATION v. BROWN 5081

that are to be slaughtered for human consumption, the

FMIA’s humane handling requirements apply to all animals

at the slaughterhouse. FSIS Directive 6100.1 at 4 (“All ani-

mals that are on the premises of the establishment . . . are to

be handled humanely.”). Section 599f(e) thus prohibits

conduct—the dragging of unconscious downer animals—that

federal law does not.

[10] Federal law also considers more equipment suitable

for the purposes of moving downer animals, such as electric

prods, than does section 599f(e). Compare 9 C.F.R.

§ 313.2(d)(3) (“Disabled animals and other animals unable to

move may be moved, while conscious, on equipment suitable

for such purposes; e.g., stone boats.”), and FSIS Directive

6900.1(V)(E) (suitable equipment includes “forklift or

bobcat-type vehicles and self-propelled tractors capable of

pulling stone boats (sleds) or similar conveyances, those con-

veyances themselves, and holding chutes, and a voltmeter or

other suitable equipment that is capable of verifying voltage

of electric prods attached to AC current.”), with Cal. Pen.

Code § 599f(e) (nonambulatory animals “shall be moved with

a sling or on a stoneboat or other sled-like or wheeled convey-

ance.”). Section 599f(e) is thus a regulation of the “opera-

tions” of an “establishment at which [federal] inspection is

provided” that’s “in addition to[ ] or different than” federal

law and is therefore expressly preempted. 21 U.S.C. § 678.

Although NMA is likely to succeed on its express preemp-

tion claim against section 599f(e),8 it must still show a likeli-

hood of irreparable injury and that the balance of the equities

and the public interest tip in its favor in order to justify a pre-

liminary injunction. See pp. 5073-74 supra. The district

8

Contrary to NMA’s argument, the likelihood of success as to section

599f(e) doesn’t affect the likelihood of success as to section 599f(a)-(c).

See Dalton v. Little Rock Family Planning Servs., 516 U.S. 474, 478

(1996) (enjoining provision only to the extent that it imposes obligations

inconsistent with federal law).

5082 NATIONAL MEAT ASSOCIATION v. BROWN

court’s findings concerning irreparable injury and the balance

of the equities focus on the costs of complying with section

599f’s ban on the receipt and slaughter of downer animals.

The district court failed to make such findings as to section

599f(e)’s humane handling requirements, probably because

NMA failed to offer any evidence on the issue.

***

[11] NMA isn’t likely to succeed on its preemption claims

against section 599f(a)-(c)’s ban on the receipt and slaughter

of downer animals. And although NMA is likely to succeed

on its preemption claim against section 599f(e)’s humane han-

dling provision, it hasn’t shown a likelihood of irreparable

injury or that the balance of the equities and the public inter-

est tip in its favor for this provision. The district court there-

fore abused its discretion in granting a preliminary injunction,

and the injunction is hereby vacated. Nothing we say here

precludes the entry of a preliminary injunction as to section

599f(e) after appropriate findings are made, or a preliminary

injunction as to the entirety of section 599f based on other

legal theories, see p.5073 n.2 supra.

VACATED.

No costs.