Amicus Curiae Brief — North American Meat Institute, Petitioner v. Rob Bonta, Attorney General of California, et al.

Supreme Court briefJun 1, 2021

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No. 20-1215

In the Supreme Court of the

United States

NORTH AMERICAN MEAT INSTITUTE,

Petitioner,

ROB BONTA, ATTORNEY GENERAL OF CALIFORNIA, ET

AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

BRIEF OF HEALTH CARE WITHOUT HARM,

THE NATIONAL COUNCIL FOR

OCCUPATIONAL SAFETY AND HEALTH, THE

CONSUMER FEDERATION OF AMERICA, AND

FOOD & WATER WATCH AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

________________

HENRY S. WEISBURG

Counsel of Record

MATTHEW G. BERKOWITZ

CINDY GARO

J. IGNACIO SALDANA

MATTHEW A. WESTON

SHEARMAN & STERLING LLP

599 LEXINGTON AVENUE

New York, New York 10022

(212) 848-4000

hweisburg@shearman.com

Counsel for Amici Curiae

June 1, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ............................... 1

HEALTH CARE WITHOUT HARM ......................... 1

II.

NATIONAL COUNCIL FOR OCCUPATIONAL

SAFETY AND HEALTH ........................................ 2

III. CONSUMER FEDERATION OF AMERICA ............... 2

IV. FOOD & WATER WATCH .................................... 3

INTRODUCTION AND SUMMARY OF

ARGUMENT .............................................................. 4

ARGUMENT .............................................................. 7

THIS CASE REPRESENTS A POOR VEHICLE

FOR REVIEW BECAUSE CRITICAL PUBLIC

INTEREST ISSUES HAVE YET TO BE

CONSIDERED ..................................................... 7

II.

A PRELIMINARY INJUNCTION WOULD BE

IMPROPER IN VIEW OF THE STRONG PUBLIC

INTEREST CONSIDERATIONS .............................. 9

Industrial

Pork

Production,

Documented

Source

Infectious

Disease, Poses a Profound Danger to

Public Health .............................................. 11

The Lower Courts Did Not Consider

Animal Cruelty Issues ................................ 17

CONCLUSION ......................................................... 23

TABLE OF AUTHORITIES

Page(s)

Cases:

Def. Distributed v. United States Dep’t of State,

838 F.3d 451 (5th Cir. 2016) ................................... 9

McKiver v. Murphy-Brown, LLC,

980 F.3d 937 (4th Cir. 2020) ..................... 13, 15, 18

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ............................................ 8, 9

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. (2008) .................................................... 7, 8

Other Authorities:

About Antibiotic Resistance, Ctrs. For Disease

Control & Prevention,

https://www.cdc.gov/drugresistance/about.html

(last visited May 27, 2021) .................................... 16

Animal Feeding Operations, U.S. Dep’t Agric.,

https://www.nrcs.usda.gov/wps/portal/nrcs/main/n

ational/plantsanimals/livestock/afo/ (last visited

May 27, 2021) ........................................................ 12

Antimicrobial Resistance,

World Health Org. (Oct. 13, 2020) ........................ 16

Brief for Appellant, N. Am. Meat Inst. v. Becerra,

825 F. App’x 518, (9th Cir. 2020) (No. 19-56408) ... 8

Brief of the Humane Society of the United States as

Amicus Curiae in support of Plaintiffs-Appellees

and Affirmance, McKiver v. Murphy-Brown, LLC,

980 F.3d 937 (4th Cir. 2020)

(No. 19-1019) ....................................... 18, 19, 20, 21

iii

Dana Cole, Lori Todd, & Steve Wing, Concentrated

Swine Feeding Operations and Public Health: A

Review of Occupational and Community Health

Effects, 108 Envtl. Health Perspectives 685

(2000) ............................................. 12, 13, 14, 16, 17

Doris Lin, Learn Why Some Activists Are Avidly

Against Eating Veal, ThoughtCo.

(July 18, 2019) ....................................................... 21

Dylan Matthews, America’s largest pork producer

pledged to make its meat more humane. An

investigation says it didn’t.,

Vox (May 8, 2018, 12:30PM ET) ........................... 18

Food & Water Watch, Antibiotic Resistance 101: How

Antibiotic Misuse on Factory Farms Can Make You

Sick (Sept. 2012).................................................... 15

Food & Water Watch, Factory Farm Nation: 2020

Edition (April 2020) .............................................. 13

H1N1 Flu, Ctrs. For Disease Control & Prevention

(Nov. 25, 2009) ....................................................... 14

Harvard Animal L. & Pol’y Program, Legislative

Analysis of H.R. 4879: the “Protect Interstate

Commerce Act of 2018” (2018) ........................ 10, 11

Health Care Without Harm, Expanding Antibiotic

Stewardship: The Role of Health Care in

Eliminating Antibiotic Overuse in Animal

Agriculture (May 2014) ................................... 16, 17

Higher Welfare For Veal Calves, Compassion in

World Farming, https://www.ciwf.com/farmedanimals/cows/veal-calves/higher-welfare/ (last

visited May 27, 2021) ...................................... 21, 22

How Our Food System Affects Public Health, Food

Print, https://foodprint.org/issues/how-our-foodsystem-affects-public-health/ (last visited May 27,

2021) ...................................................................... 13

Humane Soc. Int’l, An HSI report: The connection

between animal agriculture, viral zoonoses, and

global pandemics 6–8 (Sept. 2020) .................. 10,14

Jonathan R. Lovvorn & Nancy V. Perry, California

Proposition 2: A Watershed Moment for Animal

Law, 15 Animal L. 149, 152 (2009) ................. 22, 23

Katie Couric, Denmark’s Case for Antibiotic-Free

Animals, CBS (Feb. 10, 2010, 4:20 PM) ............... 17

Leslie Pray, Antibiotic Resistance, Mutation Rates,

and MRSA, 1 Nature Ed. (2008) .......................... 16

M D. Moore, The Preliminary Injunction Standard:

Understanding the Public Interest Factor, 117

Mich. L. Rev. 939 (2019) ......................................... 7

Maryn McKenna, Bird Flu Could Cost the US $3.3

Billion and Worse Could Be Coming,

Nat’l Geographic (July 15, 2015) .......................... 10

Maryn McKenna, Farm Animals Are the Next Big

Antibiotic Resistance Threat,

Wired (Sept. 19, 2019, 02:09 PM) ......................... 15

Pew Comm’n Indus. Farm Animal Prod., Putting

Meat on the Table: Industrial Farm Animal

Production in America 1–3 (Apr. 29,

2008) ...................................................................... 12

Precautionary Moratorium on New and Expanding

Concentrated Animal Feeding Operations, Am.

Pub. Health Ass’n (Nov. 5, 2019) .......................... 12

Prevention of Cruelty to Farm Animals Act,

Prop. 12 ................................................................. 10

Record-High Antibiotic Sales for Meat and Poultry

Production, Pew Charitable Trs. (Feb. 6,

2013) ...................................................................... 15

Sigal Samuel, The meat we eat is a pandemic risk,

too, Vox (Aug. 20, 2020, 11:50 AM ET) ................. 14

Veal: A Byproduct of the Cruel Dairy Industry,

PETA, https://www.peta.org/issues/animals-usedfor-food/animals-used-food-factsheets/vealbyproduct-cruel-dairyindustry/#:~:text=Cows%20produce%20milk%20fo

r%20the,produce%20milk%20for%20human%20co

nsumption (last visited May 28, 2021) ................. 22

Health Care Without Harm (“HCWH”), The

National Council for Occupational Safety and Health

(“National COSH”), the Consumer Federation of

America (“the CFA”), and Food & Water Watch

(“FWW”) respectfully submit this brief in opposition

to the petition for a writ of certiorari filed by the

North American Meat Institute (“NAMI”).1

INTEREST OF AMICI CURIAE

HEALTH CARE WITHOUT HARM

HCWH is an international nongovernmental

organization (“NGO”) that works to transform health

care worldwide so that it reduces its environmental

footprint, becomes a community anchor for

sustainability, and a leader in the global movement

for environmental health and justice. With the

leadership and expertise of HCWH’s Healthy Food In

Health Care Program, dedicated staff at more than

1,500 health care facilities across North America are

implementing policies and programs that support

sustainable food systems. Using an environmental

nutrition framework, they leverage their respected

voices, purchasing power, investments and other

assets to develop food systems that conserve and

renew natural resources, advance social justice and

animal welfare, build community wealth, and fulfill

Pursuant to Rule 37.6 of the Rules of this Court, the

undersigned hereby states that no counsel for a party authored

any part of this brief, in whole or in part, and no person other

than amici curiae or its counsel made any monetary

contribution to the preparation or submission of this brief.

Counsel of record for the parties received notice of amici

curiae’s intent to file this brief on May 21, 2021, ten days prior

to its due date, and all parties consented to the filing of this

brief.

the food and nutrition needs of all eaters now and

into the future.

HCWH brings a unique perspective to this

case because of its prior experience with and

knowledge of the impact of antibiotic overuse in

animal agriculture on the health care sector—and on

public health in general.

II.

NATIONAL COUNCIL FOR OCCUPATIONAL

SAFETY AND HEALTH

National COSH is a 501(c)(3) organization

dedicated to promoting safe and healthy working

conditions for all working people through organizing

and advocacy. It seeks to encourage workers to take

action to protect their safety and health, promote

protection from retaliation under job safety laws, and

provide quality information and training about

hazards on the job and workers’ rights.

National COSH brings a unique perspective to

this case because of its prior experience with largescale factory farming and the impacts of the same on

various health and safety considerations.

III.

CONSUMER FEDERATION OF AMERICA

The CFA is an association of non-profit

consumer organizations that was established in 1968

to advance the consumer interest through research,

advocacy, and education. As a research organization,

CFA investigates consumer issues, behavior, and

attitudes

through

surveys,

focus

groups,

investigative reports, economic analysis, and policy

analysis.

The findings of such research are

published in reports that assist consumer advocates

and policymakers as well as individual consumers.

They provide an important basis for the policy

positions and work of the organization. As an

advocacy organization, CFA works to advance proconsumer policies on a variety of issues before

Congress, the White House, federal and state

regulatory agencies, state legislatures, and the

courts. The CFA communicates and works with

public officials to promote beneficial policies, oppose

harmful ones, and ensure a balance debate on issues

important to consumers.

Through its Food Policy Institute, the CFA

conducts research and advocacy to promote a safer,

healthier, and more affordable food supply. The CFA

also coordinates the Safe Food Coalition, which is

dedicated to reducing the burden of foodborne illness

in the United States by improving government food

inspection programs.

The CFA has previously

advocated against the “Protect Interstate Commerce

Act”—also known as the “King Amendment”—which

would have required states to authorize the sale of

“any agricultural product” not prohibited under

federal law, and would have wiped out dozens of

states laws aimed at protecting food safety, animal

welfare, and the environment, among other state

interests.

The CFA thus brings a unique perspective to

this case because of its long-standing support for

state laws aimed at protecting the very same state

interests at stake in the present appeal.

IV.

FOOD & WATER WATCH

FWW is a 501(c)(3) non-profit organization

working to create a heathy future for all people and

generations to come—a world where everyone has

food they can trust, clean drinking water and a

livable climate. FWW mobilizes regular people to

build political power to move bold and

uncompromised solutions to the most pressing food,

water, and climate problems of our time. FWW

works to protect people’s health, communities, and

democracy from the growing destructive power of the

most powerful economic interests. As part of its

mission, FWW works with and advocates for small

family farms and ranches against corporate control

and abuse of food and water resources, including

campaigning for a ban of factory farms.

The

practices of factory farms place our public health and

food supply at risk, pollute the environment and our

drinking water, and wreck rural communities—while

increasing corporate control over our food.

FWW brings a unique perspective to this case

because of its prior experience with and knowledge of

safe and sustainable farming practices and the longterm harms of factory farming.

INTRODUCTION AND SUMMARY OF

ARGUMENT

In the midst of one of the deadliest pandemics

in human history, Petitioner asks this Court to

ignore the effect of Proposition 12 on the health risks

posed by industrial pork production to nearly forty

million California residents. The courts below have

yet to consider those health risks in any depth,

making this petition, which comes to the Court at the

preliminary injunction stage, an inadequate vehicle

for review of any constitutionality questions that

Petitioner raises.

Petitioner also ignores the

legitimate animal cruelty concerns addressed by

Proposition 12, which must also be considered before

a preliminary injunction can be granted.

The public interest considerations include the

following:

• Industrial pork production, a documented

source of infectious disease, poses a profound

danger to public health.2 Animal husbandry

practices required to confine pigs in modern

high-density facilities have dire consequences

for not only the health and welfare of the

animals, but also for worker safety, food

safety, and public health. The air- and waterborne bacteria, viruses, and fungi at these

facilities further spread disease among the

closely-confined pigs—and humans are not far

behind because many of these diseases can

also infect humans, either through contact

with the pigs and their waste or through

contact with infected meat or other infected

humans. To suppress and prevent the spread

of bacteria-borne diseases among the denselypacked pigs, producers feed them nontherapeutic, low levels of antibiotics, which

widespread use has contributed significantly

to the growing number of antibiotic-resistant

bacteria.

Antibiotic-resistant infections in

humans cost the United States health care

sector $21 billion to $34 billion and cause the

deaths of 23,000 Americans each year—the

most common source of antibiotic resistant

infections is contaminated food. The residents

See infra pp. 11–17.

of California would continue to be exposed to

these profound health risks.

• Proposition 12 addresses legitimate animal

cruelty concerns.3 Every day, pigs, calves, and

hens are subjected to outrageous conditions

that still exist at animal facilities that provide

California consumers with products from

abused, stressed, and

immunosuppressed

animals. For example, pigs are fattened to

over seven times their starting weight while

the size of their pens does not change, live

covered in feces, and when bred, are confined

in such extreme conditions that they gnaw and

bite the bars of their tiny crates until the bars

are covered in blood. Further, calves destined

for veal live in a cage that is barely larger

than the calf’s body and too small for the calf

to turn around. Often, the calves are tethered

to prevent movement and keep the flesh

tender. These incredibly unhealthy living

conditions can cause disease, including chronic

pneumonia and diarrhea. The situation for

hens

similarly

egregious—industrial

producers usually give hens less space than

the area of a letter-sized sheet of paper in

which to eat, sleep, lay eggs, and defecate.

Animals would continue to be subjected to

these outrageous conditions, and the residents

of California would in turn continue

consuming these products.

See infra pp. 17–23.

As illustrated by the amici, there exist,

without

doubt,

additional

public

interest

considerations that under this Court’s wellestablished jurisprudence must at least be

considered before the constitutionality of Proposition

12 can be resolved. The record’s gap—or substantial

factual disputes at the very least—on public interest

issues renders this case and its procedural posture a

poor vehicle for this Court’s review of any

constitutional questions about Proposition 12.

For the reasons set forth in this brief, the

amici support Respondents and respectfully submit

that the petition for a writ of certiorari be denied.

ARGUMENT

THIS CASE REPRESENTS A POOR VEHICLE FOR

REVIEW BECAUSE CRITICAL PUBLIC

INTEREST ISSUES HAVE YET TO BE

CONSIDERED

Challenges to government action necessarily

implicate public interest concerns by virtue of the

number of individuals affected. M D. Moore, The

Preliminary Injunction Standard: Understanding the

Public Interest Factor, 117 Mich. L. Rev. 939, 954–59

(2019). Such concerns are further heightened in the

context of a preliminary injunction, which must be in

the public interest for it to be appropriately granted

by the courts. Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 20 (2008). Petitioner asks this Court to

review the Ninth Circuit’s decision affirming the

denial of its preliminary injunction under the false

premise that, other than an interest in the protection

of constitutional rights and prevention of an alleged

irreparable harm to its members, no further public

interest considerations exist—this is wrong.

Even if a plaintiff seeking injunctive relief has

established the likelihood of success on the merits or

irreparable injury, or both, a preliminary injunction

would be improper if the public interest outweighs

such injury. Winter, 555 U.S. at 374. Moreover,

“where an injunction is asked which will adversely

affect a public interest for whose impairment, even

temporarily, an injunction bond cannot compensate,

the court may in the public interest withhold relief

until a final determination of the rights of the

parties, though the postponement may be

burdensome to the plaintiff.” Weinberger v. RomeroBarcelo, 456 U.S. 305, 313 (1982) (citation omitted).

Neither the district court nor the Ninth

Circuit considered whether Petitioner’s preliminary

injunction is in the public interest. In light of its

conclusion that there are no serious questions

regarding the merits of Petitioner’s constitutional

challenge, the district court declined to address

Petitioner’s arguments on the remaining preliminary

injunction factors, including the public interest

impact of the injunctive relief sought by Petitioner.

Pet. App. B. The Ninth Circuit in turn affirmed the

district court’s approach and abstained from

examining the public interest factor. Pet. App. A.

In an attempt to foreclose a proper public

interest assessment, Petitioner merely argued below

that the public interest factor “require[s] compliance

with the Constitution.” Brief for Appellant at 51–52,

N. Am. Meat Inst. v. Becerra, 825 F. App’x 518, (9th

Cir. 2020) (No. 19-56408). Petitioner’s argument,

however, is based on the false premise that there are

no other public interest considerations involved in

addition to the protection of constitutional rights and

prevention of an injury to its members. Nonetheless,

as illustrated in Part II below, there exist

competing—and stronger—public interests impacted

by the preliminary injunction sought by Petitioner,

and these should be given some weight, at the very

least. Weinberger, 456 U.S. at 313 (“[courts are] not

mechanically obligated to grant an injunction for

every violation of law . . .

[and evaluating]

commonplace considerations [beyond the merits] is ‘a

practice with a background of several hundred years

of history . . . .’” (internal citations omitted)); Def.

Distributed v. United States Dep’t of State, 838 F.3d

451, 459 (5th Cir. 2016) (“The district court’s decision

was based not on discounting Plaintiffs–Appellants’

interest [in protecting their constitutional rights] but

rather on finding that the public interest in national

defense and national security is stronger here, and

the harm to the government is greater than the

harm to Plaintiffs–Appellants. We cannot say the

district court abused its discretion on these facts.”).

Given that the public interest considerations,

including those outlined in this brief, were not

considered by the lower courts, this case is in a poor

procedural posture for the Court to consider

Petitioner’s requested review.

II.

A Preliminary Injunction Would be

Improper in View of the Strong Public

Interest Considerations

The purpose of Proposition 12 is 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.”

Prevention of Cruelty to Farm Animals Act, Prop. 12

§ 2. As illustrated in Sections A–B below, these are

well-documented issues, which required action from

the State of California.

The existence of strong public interest

considerations arising from Petitioner’s preliminary

injunction targeting Proposition 12 is further

evidenced by various state regulatory regimes that

could potentially be threatened by a ruling that is

adverse to Proposition 12, including measures to

prevent zoonotic disease,4 food safety regulations,5

Forty-seven states have taken steps to protect their

flocks from avian influenza by establishing reporting

requirements, disease control measures, quarantines, and

veterinary permitting systems. Harvard Animal L. & Pol’y

Program, Legislative Analysis of H.R. 4879: the “Protect

Interstate Commerce Act of 2018” 38 (2018) (“King Amendment

Legislative

Analysis”),

https://animal.law.harvard.edu/wpcontent/uploads/Harvard-ALPP-PICA-Report-1.pdf;

Maryn

McKenna, Bird Flu Could Cost the US $3.3 Billion and Worse

Could Be Coming, Nat’l Geographic (July 15, 2015),

http://phenomena.nationalgeographic.com/2015/07/15/bird-flu2/); see also Humane Soc. Int’l, An HSI report: The connection

between animal agriculture, viral zoonoses, and global

pandemics 6–8 (Sept. 2020) (“HSI Report”), https://blog.humane

society.org/wp-content/uploads/2020/10/Animal-agricultureviral-disease-and-pandemics-FINAL-4.pdf. These states have

identified a public interest in regulating animal production and

consumption in a way that protects their people and livestock

from the growing risk of zoonotic disease and resulting

epidemics (or worse).

food labeling and packaging laws,6 requirements for

the shipping of agricultural products,7 and

protections against agricultural pests.8

Industrial Pork Production, a

Documented Source of Infectious

Disease, Poses a Profound Danger to

Public Health

In recent decades, animal agriculture has

shifted away from systems of traditional family

farms to systems of industrial farm animal

production dominated by a few producers whose

streamlined, automated, and standardized animal

husbandry practices have reduced the number of

workers needed to produce even more animals for

King Amendment Legislative Analysis, supra note 4, at

31 (citing Ala. Code § 20-1-27; Cal. Health & Safety Code §

114094.5; Ga. Comp. R. & Regs. 40-7-1-.13(3)(e); Ohio Rev. Code

Ann. § 3715.521; N.J. Stat. Ann. § 56:8-2.27).

Id. at 28 (citing Harvard Food L. & Pol’y Clinic & Nat’l

Resources Def. Council, The Dating Game: How Confusing Food

Date Labels Lead to Food Waste in America, (Sept. 2013),

available

https://www.chlpi.org//wpcontent/uploads/2013/12/dating-gamereport.pdf).

Id. at 39–40 (citing Mich. Admin. Code r. 287.653).

Id. at 186–87.

meat production.9 In the pork industry—as with the

poultry, egg, and other meat-producing industries—

these changes have led to the confinement of

increasingly large numbers of pigs in relatively

small, enclosed facilities that restrict their

movement.10

In concentrated animal feeding

operations (“CAFOs”), the most extreme type of such

facilities, thousands of animals are confined to a

single facility.11

The animal husbandry practices required to

confine pigs in modern high-density facilities have

dire consequences for not only the health and welfare

See Pew Comm’n Indus. Farm Animal Prod., Putting

Meat on the Table: Industrial Farm Animal Production in

America 1–3 (Apr. 29, 2008) (“2008 Pew Study”),

https://www.pewtrusts.org//media/legacy/uploadedfiles/phg/content_level_pages/reports/pci

fapfinalpdf.pdf; Precautionary Moratorium on New and

Expanding Concentrated Animal Feeding Operations, Am. Pub.

Health Ass’n (Nov. 5, 2019), https://www.apha.org/ policies-andadvocacy/public-health-policy-statements/

policy-database/

2020/ 01/13/precautionary-moratorium-on-new-and-expandingconcentrated-animal-feeding-operations.

2008 Pew Study, supra note 9, at 38 (recommending

phasing out all intensive confinement systems, such as swine

gestation crates and restrictive swine farrowing crates, and

noting the capital investment in such systems in swine

production); Dana Cole, Lori Todd, & Steve Wing, Concentrated

Swine Feeding Operations and Public Health: A Review of

Occupational and Community Health Effects, 108 Envtl. Health

Perspectives

685

(2000)

(“Cole”),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1638284/pdf/env

hper00309-0041.pdf.

See 2008 Pew Study, supra note 9, at 33–34; Animal

Feeding

Operations,

U.S.

Dep’t

Agric.,

https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/plants

animals/livestock/afo/ (last visited May 27, 2021).

of the animals,12 but also for worker safety, food

safety, and public health. See McKiver v. MurphyBrown, LLC, 980 F.3d 937, 979–84 (4th Cir. 2020)

(Wilkinson, J., concurring). Such facilities generate

substantial amounts of manure, urine, and other

waste materials that generate air and water

pollutants, including infectious (and antibioticresistant) bacteria, viruses, and fungi, that

contaminate the local air and ground water

supplies.13 Air- and water-borne chemical pollutants

from these facilities not only cause illness in the pigs,

but can also directly cause chronic respiratory

illnesses, among other illnesses, in workers and

surrounding communities. See McKiver, 980 F.3d at

979–80 (Wilkinson, J., concurring).14

The air- and water-borne bacteria, viruses,

and fungi further spread disease among the closelyconfined pigs—and humans are not far behind

because many of the diseases carried by the bacteria,

viruses, and fungi can also infect humans, either

through contact with the pigs and their waste or

through contact with infected meat or other infected

humans. Id.15 In particular, because pigs can be

See infra, pp. 17–23.

See Cole, supra note 10, at 685–88; Food & Water

Watch, Factory Farm Nation: 2020 Edition at 2–4 (April 2020)

(“Factory

Farm

Nation”),

https://www.foodandwaterwatch.org/wpcontent/uploads/2021/03/ib_2004_updfacfarmmaps-web2.pdf;

How Our Food System Affects Public Health, Food Print,

https://foodprint.org/issues/how-our-food-system-affects-publichealth/ (last visited May 27, 2021) (“Food & Pub. Health”).

See also Cole, supra note 10, at 685–94; Food & Pub.

Health, supra note 13.

See Cole, supra note 10, at 685–94.

infected not only with swine influenza, but also

human and avian influenza, they are “ideal mixing

vessels for influenza viruses.”16 Most famously, the

2009 H1N1 influenza virus (or “swine flu”), which

originated from pigs imported from the United

States, carried gene segments that originated from

humans, birds, North American pigs, and Eurasian

pigs.17

The 2009 H1N1 outbreak, which was

declared a pandemic two months after the

identification of H1N1 in June 2009, resulted in

millions of infections and 150,000 to 575,000 deaths

worldwide in the first year of the outbreak.18 Pigs

carry several other types of infectious bacteria and

viruses, such as salmonella, E. coli, and Hepatitis

E.19

However, the possibility of a pandemic caused

by pig-borne diseases spread through close

confinement in industrial production facilities is not

the pork industry’s only threat to public health. The

way the pork industry chooses to control such spread

of disease among its animals also creates public

health risks. To suppress and prevent the spread of

HSI Report, supra note 4, at 6, 9–11 (quoting Cassandra

Willyard, Flu on the farm, Nature (Sept. 18, 2019)

https://www.nature.com/articles/d41586-019-02757-4); see also

Sigal Samuel, The meat we eat is a pandemic risk, too, Vox

(Aug. 20, 2020, 11:50 AM ET) (“Pandemic Risk”),

https://www.vox.com/futureperfect/2020/4/22/21228158/coronavirus-pandemic-risk-factoryfarming-meat.

HSI Report, supra note 4, at 9–11; H1N1 Flu, Ctrs. For

Disease

Control

Prevention

(Nov.

25,

2009),

https://www.cdc.gov/h1n1flu/information_h1n1_virus_qa.htm.

HSI Report, supra note 4, at 9–11.

Cole, supra note 10, at 691–92.

bacteria-borne diseases among the densely-packed

pigs, producers feed them non-therapeutic, low levels

of antibiotics—a practice that has the added benefit

(to producers) of promoting the fast growth of the

animals.20 See McKiver, 980 F.3d at 980 (Wilkinson,

J., concurring) (citation omitted) (“CAFOs commonly

administer

antibiotics

subtherapeutic

concentrations both ‘as prophylactic drugs and to

increase feed efficiency and daily weight gain.”).

Such use of antibiotics is so widespread that sales of

antibiotics for use in animal agriculture in the

United States is several times that of the human

health care sector.21

Widespread use of antibiotics in animal

agriculture has contributed significantly to the

See also Maryn McKenna, Farm Animals Are the Next

Big Antibiotic Resistance Threat, Wired (Sept. 19, 2019, 02:09

PM) (“Resistance Threat”), https://www.wired.com/story/farmanimals-are-the-next-big-antibiotic-resistance-threat/; Food &

Water Watch, Antibiotic Resistance 101: How Antibiotic Misuse

on Factory Farms Can Make You Sick at 4–5 (Sept. 2012) (“AR

101”),

https://www.yumpu.com/en/document/read/24346542/antibi

otic-resistance-101-food-water-watch.

See, e.g., Record-High Antibiotic Sales for Meat and

Poultry Production, Pew Charitable Trs. (Feb. 6, 2013),

https://www.pewtrusts.org/en/research-and-analysis

/articles/2013/02/06/recordhigh-antibiotic-sales-for-meat-andpoultry-production#sthash.fTWHXIJP.dpuf (reporting that 29.9

million pounds of antibiotics were sold for meat and poultry

production, compared to 7.7 million pounds sold to treat

humans); AR 101, supra note 20, at 5 (“The FDA also reports

that 74 percent of antibiotics used in livestock are sold for use

in feed, 16 percent for use in water and only 3 percent for use as

injection.”); Resistance Threat, supra note 20 (reporting that

possibly three-fourths of all antibiotics in the world are used in

this way).

growing number of antibiotic-resistant bacteria.

Antibiotic resistance is a type of antimicrobial

resistance in which bacteria evolve and become

resistant to the antibiotics used to treat them by

random genetic mutations or by one species

acquiring resistance from another.22

Extended

exposure of bacteria to antibiotics facilitates the

selection of the mutations in bacteria that cause

antibiotic resistance in bacteria, as non-resistant

bacteria are killed off.23 This phenomenon, when

coupled with the unsanitary conditions common to

densely-packed industrial production facilities,

creates a perfect incubator for the spontaneous

mutations that can result in antibiotic-resistant

bacteria.24 Indeed, several strains of antibioticresistant bacteria have been traced to pigs, such as

Enterococcus faecalis, E. coli, and Salmonella

About Antibiotic Resistance, Ctrs. For Disease Control

& Prevention, https://www.cdc.gov/drugresistance/about.html

(last visited May 27, 2021); Antimicrobial Resistance, World

Health Org. (Oct. 13, 2020), https://www.who.int/newsroom/fact-sheets/detail/antimicrobial-resistance.

See Leslie Pray, Antibiotic Resistance, Mutation Rates,

and

MRSA,

Nature

Ed.

(2008),

https://www.nature.com/scitable/topicpage/antibiotic-resistancemutation-rates-and-mrsa-28360/.

Pandemic Risk, supra note 16; AR 101 supra note 20, at

4–6; see also Cole, supra note 10, at 692–93; Health Care

Without Harm, Expanding Antibiotic Stewardship: The Role of

Health Care in Eliminating Antibiotic Overuse in Animal

Agriculture

(May

2014)

(“Antibiotic

Stewardship”),

https://noharm-uscanada.org/sites/default/files/documentsfiles/2735/Expanding%20Antibiotic%20Stewardship.pdf

typhimurium DT104, the last of which is resistant to

multiple antibiotics.25

The most common source of antibiotic

resistant

infections

contaminated

food.26

Antibiotic-resistant infections in humans are more

difficult—and therefore more expensive—to treat,

costing the United States health care sector $21

billion to $34 billion and causing the deaths of 23,000

Americans each year.27

Recognizing the public

health risks of widespread antibiotic use, European

pork producers have long banned the nontherapeutic use of antibiotics, resulting in significant

reductions of antibiotic-resistant bacteria in animals

and food.28

The Lower Courts Did Not Consider

Animal Cruelty Issues

Animal cruelty exists across the country—

particularly for the animals that Proposition 12

endeavors to protect: breeding pigs, calves, and hens.

The unfortunate truth is that the animals America

loves to eat are often the animals that American

farmers treat the worst.

Antibiotic Stewardship, supra note 24; AR 101 supra

note 20, at 7–9; Cole, supra note 10, at 692–93.

Antibiotic Stewardship, supra note 24; AR 101, supra

note 20, at 7–9.

Antibiotic Stewardship, supra note 24; AR 101, supra

note 20, at 2, 9.

AR 101, supra note 20, at 12–13; Katie Couric,

Denmark’s Case for Antibiotic-Free Animals, CBS (Feb. 10,

2010, 4:20 PM), https://www.cbsnews.com/news/denmarks-casefor-antibiotic-free-animals/.

As to pigs, the largest pork producer in the

world—Smithfield

Hog

Production

Division

(“Smithfield”), through its subsidiary MurphyBrown, LLC (“Murphy-Brown”)—was recently

exposed (again) for the horrific treatment of pigs

raised at its facilities or at facilities under its

direction and control:29

•

At Kinlaw Farms—a Smithfield

finishing facility—“hogs arrive[] at

around forty pounds, to be fattened to

over seven times their starting weight.”

McKiver, 980 F.3d at 979 (Wilkinson, J.,

concurring).

•

Despite this massive weight increase,

the size of their pens does not change.

Id.

•

At Kinlaw Farms, 14,000 hogs were

“crammed into [] twelve confinement

sheds.” Id.

•

These pigs generate millions of gallons

of waste and, due to the extreme

confinement and inadequate waste

management systems, often live covered

in feces. Id.

See generally Brief of the Humane Society of the United

States as Amicus Curiae in support of Plaintiffs-Appellees and

Affirmance, McKiver v. Murphy-Brown, LLC, 980 F.3d 937 (4th

Cir. 2020) (No. 19-1019), (“HSUS Amicus Brief”); see also Dylan

Matthews, America’s largest pork producer pledged to make its

meat more humane. An investigation says it didn’t., Vox (May

8, 2018, 12:30PM ET), https://tinyurl.com/y5j2hmd3.

•

Ten percent of pigs die most likely due

to complications from that confinement.

Id. at 980 (citing HSUS Amicus Brief at

11).

•

Pig transportation is done in extremely

confining circumstances and results in

roughly 1% of all transported pigs

arriving at a slaughter plant either

dead or non-ambulatory due to injury,

fatigue, or illness.30

Below is a real-life picture of pigs kept at Kinlaw

farms:31

Contrast the above picture with the picture

Smithfield provides on its website and sustainability

reports:32

HSUS Amicus Brief, supra note 29, at 16 (citing to

Ritter MJ et al., Effect of floor space during transport of marketweight pigs on the incidence of transport losses at the packing

plant and the relationships between transport conditions and

losses,

Animal

Sci.

2856

(2006),

https://www.ncbi.nlm.nih.gov/pubmed/16971589).

Id. at 9–10.

As to Smithfield breeding pigs:

•

They are confined in tiny crates where

they are unable to even turn around for

approximately six weeks after they are

inseminated and four weeks after they

give birth.33

•

They gnaw and bite the bars of their

tiny crates until the bars are covered in

blood (see picture below).34

•

They are only allowed to spend four

weeks weaning their piglets in a crate

that also does not have enough space to

turn around.35

Id. at 10–11.

Id. at 11–12 (citations omitted).

Id. at 13 (citing Humane Soc. U.S., Undercover at

Smithfield Foods (2010) (“Undercover at Smithfield Farms”),

available at https://tinyurl.com/y5ctdvsr).

Id. at 5.

Below is a picture of the blood-coated gestation

crates at a Smithfield/ Murphy-Brown breeding

facility in Waverly, North Carolina36:

As to veal, several states—but certainly not

all—have banned or restricted the use of veal crates

(Arizona, California, Colorado, Kentucky, Maine,

Massachusetts, Michigan, Ohio, and Rhode Island).37

But there is no federal law banning veal crates in the

United States, meaning that many calves destined

for veal (which is approximately half of all female

calves) spend most of their sixteen-to-eighteen-week

lives confined to a veal crate.38 The crate is barely

larger than the calf’s body and too small for the calf

Id. at 12–13 (citing Undercover at Smithfield Foods).

Higher Welfare For Veal Calves, Compassion in World

Farming,

https://www.ciwf.com/farmed-animals/cows/vealcalves/higher-welfare/ (last visited May 27, 2021) (“Higher

Welfare for Veal Calves”).

Doris Lin, Learn Why Some Activists Are Avidly Against

Eating

Veal,

ThoughtCo.

(July

18,

2019),

https://www.thoughtco.com/whats-wrong-with-veal-127519.

to turn around.39 Often, the calves are tethered to

prevent movement and keep the flesh tender.40 They

are typically fed an unhealthy diet of milk or

synthetic milk in order to keep their flesh pale.41

These incredibly unhealthy living conditions can

cause disease, including chronic pneumonia and

diarrhea.42

The situation for hens is similarly egregious.

Traditionally, hens have been subjected to extreme

confinement to cages so small movement is near

impossible.43 “Industrial producers usually give hens

less space than the area of a letter-sized sheet of

paper in which to eat, sleep, lay eggs, and

defecate.”44

Such confinement prohibits natural

behavior such as dustbathing, foraging, or nesting.45

The hens are often so overcrowded that they cannot

even spread their wings.46 Hens on egg farms are

Id.

Id.; see also Higher Welfare for Veal Calves.

Veal: A Byproduct of the Cruel Dairy Industry, PETA,

https://www.peta.org/issues/animals-used-for-food/animalsused-food-factsheets/veal-byproduct-cruel-dairyindustry/#:~:text=Cows%20produce%20milk%20for%20the,prod

uce%20milk%20for%20human%20consumption (last visited

May 28, 2021) (citation omitted).

See Jonathan R. Lovvorn & Nancy V. Perry, California

Proposition 2: A Watershed Moment for Animal Law, 15

Animal

149,

152

(2009),

https://www.animallaw.info/article/california-proposition-2watershed-moment-animal-law.

Id.

also typically denied access to sunlight and fresh

air.47

None of these facts were considered by the

lower courts, which, again, makes this case a poor

vehicle for this Court’s review of the constitutionality

of Proposition 12.

CONCLUSION

For the foregoing reasons, the amici support

Respondents and respectfully submit that the

petition for a writ of certiorari be denied.

Respectfully submitted,