Amicus Curiae Brief — National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.
Supreme Court briefAug 4, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-468
IN THE
Supreme Court of the United States
________________
NATIONAL PORK PRODUCERS COUNCIL & AMERICAN
FARM BUREAU FEDERATION,
Petitioners,
v.
KAREN ROSS, IN HER OFFICIAL CAPACITY AS
SECRETARY OF THE CALIFORNIA DEPARTMENT OF FOOD
& AGRICULTURE, ET AL.,
Respondents.
________________
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
________________
BRIEF OF AMICUS CURIAE DR. LEON
BARRINGER IN SUPPORT OF
RESPONDENTS
________________
Melanie R. Hallums
Emanuel Powell
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street N.W.
Washington, D.C. 20005
Elizabeth R. Moulton
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
(415) 773-5700
emoulton@orrick.com
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ..................................... ii
INTEREST OF AMICUS CURIAE .......................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ....................................................... 3
ARGUMENT ............................................................. 4
I.
Farmers, Packers, Distributors, And
Others Work Together To Supply Pork To
Consumers. ......................................................... 4
II. The Pork Industry Has Long Traced
Product From Farm To Retail Sale And
Successfully Segregated Supply Chains. ......... 12
A. The pork industry has traced individual
pigs since at least the early 1900s. ............. 12
B. Tracing and segregation also occur once
pigs are ready for slaughter and turned
into pork for retail sale. .............................. 18
III. The Traceability And Segregation Of Pork
Product Meet Critical Needs Of Pork
Producers And Consumers. .............................. 19
IV. The Pork Industry Can Use Existing
Tracing And Segregation Methods To
Supply Prop 12-Compliant Pork. ..................... 30
CONCLUSION ........................................................ 36
ii
TABLE OF AUTHORITIES
Page(s)
Statutes & Regulations
21 U.S.C. § 607(d)......................................................25
9 C.F.R. § 71.19 .........................................................20
9 C.F.R. §§ 86.2-.5 .....................................................20
9 C.F.R. § 412.1(c)(3) .................................................25
9 C.F.R. § 412.1(e) .....................................................25
Other Authorities
AgView, Frequently Asked Questions,
https://tinyurl.com/3dvsxvsz (last
visited Aug. 2, 2022) ............................................21
Allflex, User Manual, RS420NFC Portable Stick Reader with NFC Feature,
https://tinyurl.com/yejwze46 (last
visited Aug. 2, 2022) ............................................16
Am. Veterinary Med. Ass’n,
Veterinarian’s Oath,
https://tinyurl.com/3hhz4n9f (last
visited Aug. 2, 2022) ..............................................2
Animal Welfare Institute, A Consumer’s
Guide to Food Labels and Animal
Welfare, https://tinyurl.com/3eyazd4f
(last visited Aug. 2, 2022) ....................................27
iii
BBQ All Stars, Prairie Fresh USA
Prime® Pork Butts, https://tinyurl.com/52yc5k6h (last visited
Aug. 2, 2022) ........................................................25
Cal. Dep’t of Food & Agric. Animal
Health & Food Safety Servs., Proposed Regulations Animal Confinement (May 28, 2021),
https://tinyurl.com/4zdp4jsb ................................31
The Cheesecake Factory, 2021 Corporate Social Responsibility Report,
https://tinyurl.com/bdhdzvra (last
visited Aug. 2, 2022) ............................................29
Lindsay Chicester, Heather DePra, &
Galen Erickson, Beta-agonists: What
Are They and Should I Be Concerned?, Univ. of Nebraska-Lincoln
BeefWatch (Oct. 1, 2013), https://tinyurl.com/3awcnv4y ............................................22
Chipotle, Chipotle Tests RFID Technology for Traceability (Mar. 31, 2022),
https://tinyurl.com/226sj2x3 ................................30
Candice Choi, Chipotle: No Pork at a
Third of Restaurants, Associated
Press (Jan. 13, 2015), https://tinyurl.com/mttm3ntz ............................................29
iv
Coleman Natural Foods, Frequently
Asked Questions: Claims & Certifications: Is Coleman Natural Pork
Proposition 12 and Question 3 Compliant?, https://tinyurl.com/mryt4xxy
(last visited Aug. 2, 2022) ....................................35
Coleman Natural Foods, Uncured
Smoked Polish Kielbasa, https://tinyurl.com/3npctv7k (last visited
Aug. 2, 2022) ........................................................27
Elizabeth Cox, Lessons About Proposition 12 from Recent Pork Producer
Visits, Cal. Dep’t of Food & Agric.
(July 2022), https://tinyurl.com/4bn9af64 ................................. 18, 22, 34
Lauren Edwards, Stunning at Slaughter: Is Your Hard Work Going to
Waste?, The Pig Site (May 8, 2018),
https://tinyurl.com/36jmdtkw. ...............................8
Aerin Einstein-Curtis, Electronic Feeding Systems Limit Feed Waste, Localize Sow Nutrition, FeedNavigator
(Nov. 21, 2019), https://tinyurl.com/yc2shrtz ..............................................15
Farms.com, Swine Farming,
https://tinyurl.com/2sxhmnee (last
visited Aug. 2, 2022) ..............................................7
v
Jacqui Fatka, HSUS Files Lawsuit
Against Smithfield’s Sow Housing
Claims, Nat’l Hog Farmer (Oct. 18,
2021), https://tinyurl.com/2k9494jv ....................10
Frances Flower, No Gestation Crates for
Our Pigs, Whole Foods Market (Mar.
22, 2012), https://tinyurl.com/4fjarm9u .............................................29
Betsy Freese, Pork Powerhouses 2020:
Backing Up, Successful Farming
(Oct. 7, 2020), https://tinyurl.com/243xhd34 ............................................11
Rachael Garneau, McChord Reservist
Shoots Straight from the Hip About New
Command, Northwest Military (Apr. 19,
2013), https://tinyurl.com/4n7jhwnw ....................2
Global Ag Media, JBS Plants Across North
America and Australia Reopen, The Pig
Site (June 3, 2021), https://tinyurl.com/2p8p2xpc .............................................11
Elise Golan et al., U.S. Dep’t of Agric.,
Econ. Rsch. Serv., AER 830, Traceability in the U.S. Food Supply: Economic
Theory and Industry Studies (2004),
https://tinyurl.com/bdcpdrsz ..........................18, 19
Joel L. Greene, Cong. Rsch. Serv., R40832,
Animal Identification and Traceability:
Overview and Issues (2010), https://tinyurl.com/ye75d6b5 .............................................31
vi
Hatfield, A Higher Standard of Animal
Care, https://tinyurl.com/yc3vf58v (last
visited Aug. 2, 2022) ............................................35
Palmer J. Holden & M.E. Ensminger,
Swine Science (7th ed. 2005) ...............................17
Hormel Foods, Hogs, https://tinyurl.com/ycy39pd5 (last visited
Aug. 2, 2022) ........................................................34
Hyperledger, How Walmart Brought
Unprecedented Transparency to the
Food Supply Chain with Hyperledger Fabric (2019), https://tinyurl.com/yckjfewk ..............................................33
Illinois Pork Producers Ass’n, Inside A
Pig Barn – Electronic Sow Feeders,
YouTube (June 12, 2017), https://tinyurl.com/352kw8v6 ............................................16
David Jackson & Gary Marx, Illinois
Contract Pig Farmer: Work is LowPaying, Physically Punishing, Chicago Trib. (Aug. 8, 2016), https://tinyurl.com/5camehry ............................................10
JD.com, Walmart, JD.com, IBM and
Tsinghua University Launch a
Blockchain Food Safety Alliance in
China (Dec. 14, 2017), https://tinyurl.com/5hbmad8b ...........................................17
vii
Reshma Kamath, Food Traceability on
Blockchain: Walmart’s Pork and
Mango Pilots with IBM, 1 J. Brit.
Blockchain Ass’n 47 (June 12, 2018),
https://tinyurl.com/2n7jjy94 ................................33
Emmy Koeleman, Extra B Vitamins Profits
Pig Performance, All About Feed (Apr.
9, 2017), https://tinyurl.com/ystftr43 ..................15
Greg Krahn, Precision Technology’s Role
in R&D, Nat’l Hog Farmer (Apr. 1,
2021), https://tinyurl.com/yc6f45yd.....................30
Melanie Lee, Wal-Mart’s Pork Scandal
Highlights Struggles in China, Reuters (Oct. 14, 2011), https://tinyurl.com/2fzjcxuk ...............................................33
Peggy Lowe, Everything but the Squeal:
How the Hog Industry Cuts Food
Waste, NPR (Sept. 29, 2014),
https://tinyurl.com/2hp2nf8z .................................9
F. Madec, et al., Traceability in the Pig
Production Chain, 20(2) Rev. Sci.
Tech. 523 (2001), https://tinyurl.com/eetmbuws ................................ 13, 19, 31
Jeremy N. Marchant-Forde, Sow Welfare Fact Sheet, U.S. Dep’t of Agric.
(2010), https://tinyurl.com/6r5zy3sw ....................5
Jeremy N. Marchant-Forde, Swine Welfare Fact Sheet, U.S. Dep’t of Agric.
(2011), https://tinyurl.com/24ez734e .....................6
viii
Marriott International, 2020 Serve 360
Report: Sustainability and Social
Impact at Marriott International
(2020), https://tinyurl.com/yvecabys ...................28
William D. McBride & Nigel Key, U.S.
Dep’t of Agric., Econ. Rsch. Serv.,
ERR-158, U.S. Hog Production From
1992 to 2009: Technology, Restructuring, and Productivity Growth
(2013), https://tinyurl.com/2p9xsnwe ..........7, 9, 10
Memorandum of Amicus Curiae Perdue
Premium Meat Co., Iowa Pork Producers Ass’n v. Bonta, No. 3:21-cv3018 (N.D. Iowa Aug. 4, 2021), ECF
No. 57 ...................................................................34
N. Am. Meat Inst., If Meat Plants Had
Glass Walls … What Would Happen?,
https://tinyurl.com/3mcsbtkb (last
visited Aug. 2, 2022) ..........................................8, 9
National Swine Registry, Official Swine
Ear Tags, https://tinyurl.com/y53zmkmc
(last visited Aug. 2, 2022) ....................................14
Matthew Newman, I’m All Ears – Understanding the Universal EarNotching System for Swine, Rutgers
4-H Animal Science Resource Blog
(July 14, 2019), https://tinyurl.com/22mr372t ............................................13
ix
Niche Meat Processor Assistance Network, Certified Organic, https://tinyurl.com/4ffv5cu6 (last visited Aug.
2, 2022) .................................................................19
North Country Smokehouse, Prop 12
Compliant Bacon for Foodservice
Professionals, https://tinyurl.com/npp2kyj2 (last visited
Aug. 2, 2022) ........................................................35
Perdue Farms, Crate-Free Pork: What
Crate-Free Means, Pinterest,
https://tinyurl.com/23nbpsxh (last
visited Aug. 2, 2022) ............................................26
Pig Progress, Foodservice Distributor
Sysco Says No to Sow Stalls (July 24,
2012), https://tinyurl.com/57vxs75n....................12
Ron Plain et al., The Structure of the
U.S. Pork Industry, Fact Sheet Pork
Information Gateway (2001),
https://tinyurl.com/4f4vmz7v ..............................10
Tom Polansek, U.S. Pork Producer to
Resume Shipments to California After Farm Animal Law Delayed, Reuters (Feb. 8, 2022),
https://tinyurl.com/bde2mayy..............................35
Pork Checkoff, Life Cycle of a Market
Pig, https://tinyurl.com/3xyecxk6
(last visited Aug. 2, 2022) ..............................4, 5, 7
x
Pork Checkoff, PQA Plus, Education
Handbook (2022), https://tinyurl.com/yw6s2rnb ............................................20
Elizabeth Pratt, Why Are Disease Outbreaks from Pork Products on the
Rise?, Healthline (Oct. 11, 2017),
https://tinyurl.com/6tn5shvp ...............................20
Restaurant Brands International Inc.,
Animal Health & Welfare, https://tinyurl.com/5n7s8w55 (last visited
Aug. 2, 2022) ........................................................29
RobinWright.com, Balsamic Pork Tenderloin with Roasted Brussels
Sprouts and Shallots and Mashed
Potatoes (Nov. 18, 2015), https://tinyurl.com/5n8bb59n ............................................24
Roxell, Market Trend: RFID Chip Revolutionizes the Pig Sector (Nov. 2,
2020), https://tinyurl.com/2huw5ffw ...................16
Jennifer Shike, National Pork Board
CEO Addresses 2022 Priorities,
Farm Journal (Jan. 4, 2022),
https://tinyurl.com/yabpefy5................................21
Jennifer Shike, Why the U.S. Pork Industry Won’t Forget 2021, Farm
Journal (Dec. 15, 2021), https://tinyurl.com/yc73zxja ..............................................21
xi
G.C. Smith et al., Traceability from a
US Perspective, 71 Meat Science 174
(2005), https://tinyurl.com/2nzcskks .............12, 17
Smithfield Foods, Fresh Pork Production at Smithfield Foods, YouTube
(May 14, 2013), https://tinyurl.com/2s3pk8ru ............................... 8, 9, 18, 32
Smithfield Foods, Hog Production at
Smithfield Foods, YouTube (Oct. 9,
2013), https://tinyurl.com/45c9ta8s.......................9
Smithfield, Why Smithfield?, https://tinyurl.com/385rpx2d (last visited
Aug. 2, 2022) ........................................................24
Sodexo, Update on Animal Welfare in
Our Responsible Sourcing Strategy
(Dec. 31, 2020), https://tinyurl.com/2p8de5h6 ............................................29
Brian Strobel, RFID Improves Production of Breeding Sows, Resource
(July/Aug. 2021), https://tinyurl.com/3zfc7k8e ..............................................14
Swineweb, New Hampshire’s North Country Smokehouse: Making Prop 12 Compliant Pork Accessible (Sept. 21, 2021),
https://tinyurl.com/ye2y4hth ...............................35
Target, Food Animal Welfare Commitments, https://tinyurl.com/2p8fxmxe
(last visited Aug. 2, 2022) ....................................28
xii
Tyson Foods, Third Quarter 2021 Earnings (2021), https://tinyurl.com/3wby2y5s ............................................35
U.S. Dep’t of Agric., Agric. Mktg. Serv.,
A User’s Guide to USDA’s LMR Pork
Carcass Cutout (2022), https://tinyurl.com/4sm54m9v.............................................9
U.S. Dep’t of Agric., Agric. Mktg. Serv.,
Livestock Mandatory Reporting: Report to Congress (2018), https://tinyurl.com/2p8awn7w ...........................................22
U.S. Dep’t of Agric., Agric. Mktg. Serv.,
Process Verified Program, https://tinyurl.com/ycxmjjyj (last visited Aug.
2, 2022) .................................................................23
U.S. Dep’t of Agric., Agric. Mktg. Serv.,
PVP Directory, https://tinyurl.com/3wdv8hn4 (last visited
Aug. 2, 2022) ........................................................23
U.S. Dep’t of Agric., Agric. Mktg. Serv.,
Quality Systems Verification Program (QSVP) Never Fed Beta Agonists Program (2019),
https://tinyurl.com/yckkk34y.........................22, 23
U.S. Dep’t of Agric., Agric. Mktg. Serv.,
Seaboard Foods Process Verified
Program, https://tinyurl.com/4pmkpwmb (last visited
Aug. 2, 2022) ........................................................24
xiii
U.S. Dep’t of Agric., Animal & Plant
Health Inspection Serv., Animal
Disease Traceability (June 14, 2022),
https://tinyurl.com/mtecbjvy................................20
U.S. Dep’t of Agric., Animal and Plant
Health Inspection Serv., Official
Eartags: National Uniform Eartagging System (June 25, 2018),
https://tinyurl.com/5czt7c3x ................................30
U.S. Dep’t of Agric., Food Safety and Inspection Serv., Labeling Guideline
on Documentation Needed to Substantiate Animal Raising Claims for
Label Submissions (2019), https://tinyurl.com/bdfrdyav .................................. 26, 27, 28
U.S. Dep’t of Agric., Hogs & Pork, Sector at a Glance, https://tinyurl.com/yckvu5np (last updated
Aug. 5, 2021) .............................................. 4, 5, 6, 7
U.S. Dep’t of Agric., Official Listing of
Approved USDA Process Verified
Programs (2022), https://tinyurl.com/npwfer5b .............................................24
Vande Rose Farms, LinkedIn, https://tinyurl.com/5n8ptnfb (last visited
Aug. 2, 2022) ........................................................35
xiv
Mireille van Hilten, Guido Ongena, &
Pascal Ravesteijn, Blockchain for
Organic Food Traceability: Case
Studies on Drivers and Challenges,
Frontiers in Blockchain (Sept. 30,
2020), https://tinyurl.com/zwstbvcx ....................17
Wendy’s, 2020 Corporate Responsibility
Report (2021), https://tinyurl.com/y5f4tddy ..............................................33
INTEREST OF AMICUS CURIAE 1
Dr. Leon Barringer, DVM, is a large animal veterinarian who specializes in epidemiology, evidencebased population medicine, disease outbreak investigation, and vaccinology. Dr. Barringer’s expertise and
professional experience touch on all food animal species, including swine. He has a deep understanding of
the pork industry and food production process.
Dr. Barringer submits this brief to provide the Court
with background on the pork industry, particularly
with respect to the long-standing practice of segregating and tracing pork from birth to retail sale. In particular, Dr. Barringer submits this brief to explain
that producers can segregate and trace pork intended
for sale in California from other pork, such that pork
sold to other states need not be Prop 12-compliant.
Dr. Barringer earned his Doctor of Veterinary
Medicine from the University of California, Davis,
and has served in both private practice and as an Associate Professor in the Animal Science Division of
West Virginia University’s College of Agriculture and
Forestry. He later joined Pfizer Animal Health, working as the director of veterinary operations. Dr. Barringer also served as the manager of veterinary
operations at Merck Animal Health. At both Pfizer
and Merck, Dr. Barringer oversaw the health and
welfare of pigs and other food animals. He is a
1 The parties have consented to the filing of this amicus
brief. No counsel for a party authored the brief in whole or in
part. No party, counsel for a party, or any person other than Dr.
Leon Barringer and his counsel made a monetary contribution
intended to fund the preparation or submission of the brief.
2
member of the American Veterinary Medical Association, the American Association of Bovine Practitioners, the author or co-author of many peer-reviewed
papers, and a quoted expert in industry media.
Throughout his 30-plus year career as a veterinarian
and participant in the meat production industry, Dr.
Barringer has worked to ensure a safe, sustainable
meat supply while upholding the Veterinarian’s Oath
to use his scientific knowledge and skills for the benefit of society through the protection of animal health
and welfare and the relief of animal suffering. 2
In addition to his work in animal science, Dr. Barringer enjoyed a distinguished 34-year career in the
U.S. Air Force and U.S. Army. While serving, “[o]nce
a month, Barringer swap[ped] his cowboy boots for
combat boots and hoof[ed] it from his Colorado home
to his duty station.” 3 Prior to his retirement from the
armed forces in 2021, Dr. Barringer was deployed to
25 countries and earned numerous medals and
awards for exemplary performance.
See Am. Veterinary Med. Ass’n, Veterinarian’s Oath,
https://tinyurl.com/3hhz4n9f (last visited Aug. 2, 2022).
2
3 Rachael Garneau, McChord Reservist Shoots Straight
from the Hip About New Command, Northwest Military (Apr. 19,
2013), https://tinyurl.com/4n7jhwnw.
3
INTRODUCTION AND SUMMARY OF
ARGUMENT
Petitioners assert that it is not only “difficult” 4
but also “not currently possible” 5 to trace a cut of pork
back to a particular sow housed in a particular way.
These assertions are facially implausible. The pork
industry has engaged in tracing and segregation, to
varying degrees of sophistication, since at least the
early 1900s. Segregating and tracing pork allows producers to comply with public health and food safety
requirements, respond quickly to disease and foodborne illness outbreaks, meet consumer demand for
pork produced in certain ways, and market their products effectively.
Today, tracing and segregation are highly sophisticated and fully adopted in the industry. From Radio
Frequency Identification (RFID) ear tags that electronically track detailed information about a pig’s history to identification tattoos used to trace pigs
throughout the slaughtering process, industrial pork
is successfully traced from birth to the finished product.
Tracing and segregation are so robust that the
U.S. Department of Agriculture (USDA) has developed verification programs that take advantage of
tracing to allow pork producers to make marketing
claims like “antibiotic-free” and “source-verified” on
their pork products. Significant quantities of pork
4 See, e.g., Pet. App. 181a-183a ¶¶128-135; 214a ¶348.
5 Pet. Br. 16-17 n.7.
4
products are now marketed and labeled as “cratefree,” humanely raised, and other similar marketing
claims regarding the way the pig or its mother was
raised. In order to make those claims, robust tracing
and segregation of pigs and pork are required.
There is no plausible reason that existing tracing
and segregation technology and practices cannot be
used to segregate Prop 12-compliant pork from other
pork in the pipeline, without any substantial burden
to interstate commerce.
ARGUMENT
I.
Farmers, Packers, Distributors, And Others
Work Together To Supply Pork To
Consumers.
There are four relevant stages in the life cycle of
a market pig. 6
Gestation is the first stage and includes breeding
and pregnancy. 7 Female pigs who have never birthed
before are called gilts. 8 After delivering for the first
time, female pigs are called sows. 9 A sow typically
has six litters before the sow is sold for eventual
Pork Checkoff, Life Cycle of a Market Pig, https://tinyurl.com/3xyecxk6 (last visited Aug. 2, 2022).
6
7 Id.
U.S. Dep’t of Agric., Hogs & Pork, Sector at a Glance,
https://tinyurl.com/yckvu5np (last updated Aug. 5, 2021).
8
9 Id.
5
slaughter. 10 Breeding is either done through artificial
insemination or the mating of a gilt, or sow, by a male
pig, called a boar. 11 Pregnancy lasts for approximately 16 weeks after successful insemination or
mating. 12
During gestation, sows may be housed individually or in group settings. When housed individually,
sows are kept in gestation stalls, or gestation
crates, which are pens “designed to encompass the
sow’s static space requirements – that is, the space
occupied by a sow when standing or lying on her sternum.” 13 In a gestation crate, a “sow is unable to turn
around and simple movements such as standing up or
lying down may be difficult if the sow is large.” 14
Group housing is also used, in which groups of sows
are kept in open pens. 15
Farrowing, which means to give birth, is the second stage. 16 Gilts, or sows, farrow a litter of 10 piglets
on average. 17 Farmers place identification markers on
piglets shortly after birth. A farmer can use a range
of identification methods, from RFID ear tags to ear
10 See Pet. App. 180a ¶¶ 117-19.
11 U.S. Dep’t of Agric., Sector at a Glance, supra note 8.
12 Id.
13 Jeremy N. Marchant-Forde, Sow Welfare Fact Sheet 1,
U.S. Dep’t of Agric. (2010), https://tinyurl.com/6r5zy3sw.
14 Id.
15 Id.
16 Life Cycle of a Market Pig, supra note 6.
17 U.S. Dep’t of Agric., Sector at a Glance, supra note 8.
6
notching to DNA tracing. These methods are described in more detail below in Section II.
Sows nurse piglets for about three weeks until the
piglets are weaned (removed from the sow after they
can subsist on food besides the sow’s milk). 18 Once
they are weaned, piglets weigh around 10 pounds. 19 A
sow can be bred again shortly after piglets are
weaned, allowing for at least two litters per year. 20
Shortly before birth and until the piglets’ weaning,
many farms house sows in farrowing crates that
“confer[] similar degrees of confinement to the gestation crate.” 21
Feeding is the third stage. After being weaned,
some piglets are moved to feeder operations, also
called nursery operations, where they are transferred
from their litter to live with other piglets. 22 The piglets are fed a diet sufficient to grow to an average
weight of 40 pounds. 23 The feeding stage lasts approximately six to eight weeks.
Finishing is the fourth and final stage. In the finishing stage, pigs consume a significant amount of
feed to support their continued growth. Around six
months of age, the pigs reach a typical market weight
18 Id.
19 Id.
20 Id.
21 Jeremy N. Marchant-Forde, Swine Welfare Fact Sheet 1,
U.S. Dep’t of Agric. (2011), https://tinyurl.com/24ez734e.
22 See U.S. Dep’t of Agric., Sector at a Glance, supra note 8.
23 Id.
7
of about 280 pounds. 24 At this weight, the “finished”
pig is ready for slaughter. 25
This entire process takes place on pig farms and
lasts about 38 to 42 weeks (nine to 10 months). Traditionally, pig production occurred on farms that raised
pigs from gestation to finishing, also called Farrowto-Finish farms. 26 Today, the majority of pig farmers specialize in raising pigs for specific stages rather
than throughout the entire life cycle, including 27:
•
•
•
•
Farrow-to-Wean farms: breed pigs and raise
piglets until they are weaned (around 10
pounds) and then moved to Feeder farms;
Farrow-to-Feeder farms: breed and raise
pigs until they are about 40 pounds, when they
are sold to Finishing farms where they will be
fed until they reach market weight;
Feeder farms: take weaned pigs (around 10
pounds) from Farrow-to-Wean farms and raise
them until they are about 40 pounds and ready
to be moved to Finishing farms; and
Finishing farms: take pigs from Farrow-toFeeder farms and/or Feeder farms at around 40
24 Life Cycle of a Market Pig, supra note 6.
25 See U.S. Dep’t of Agric., Sector at a Glance, supra note 8.
26 William D. McBride & Nigel Key, U.S. Dep’t of Agric.,
Econ. Rsch. Serv., ERR-158, U.S. Hog Production From 1992 to
2009: Technology, Restructuring, and Productivity Growth 5
(2013), https://tinyurl.com/2p9xsnwe.
27
Farms.com,
Swine
Farming,
nyurl.com/2sxhmnee (last visited Aug. 2, 2022).
https://ti-
8
pounds and raise the pigs until they reach
market weight.
After pigs reach market weight, they are typically
transported to packers, which slaughter, process,
and package pork for distribution to retailers, food
services, and other buyers. Packers include household
names like Smithfield Foods, Hormel Foods, and Tyson Foods.
Upon arriving to the packing plant, pigs are generally placed in pens, given fresh water, and allowed
to rest before processing. 28 Given federal regulations
requiring most livestock to be unconscious before being processed into meat, pigs are “stunned” to make
them unconscious. 29 The most common methods are
electrical stunning and gas stunning. 30 With electrical stunning, “an electrical current [is applied] to the
head of the pig at a sufficient strength to … cause the
pig to become unconscious.” 31 For gas stunning, generally pigs are led in small groups to baskets and
N. Am. Meat Inst., If Meat Plants Had Glass
Walls … What Would Happen? 3, https://tinyurl.com/3mcsbtkb
(last visited Aug. 2, 2022); see also Smithfield Foods, Fresh Pork
Production at Smithfield Foods, YouTube 00:00:36 (May 14,
2013), https://tinyurl.com/2s3pk8ru.
28
29 N. Am. Meat Inst., supra note 28, at 7.
30 Lauren Edwards, Stunning at Slaughter: Is Your Hard
Work Going to Waste?, The Pig Site (May 8, 2018), https://tinyurl.com/36jmdtkw.
31 Id.
9
lowered into chambers eventually filled with CO2 gas
that “functions like a permanent anesthesia.” 32
After stunning, pigs are killed from a cut to the
throat and hung up from their back legs. 33 The carcasses go through an “exterior cleaning process,” their
“internal organs are removed”, and then “the body
cavity is cleaned.” 34 Generally, the carcasses are left
to rest in a cooler overnight. 35 Following cooling, the
pig’s carcass moves down the factory line, where body
parts are removed to be broken down into primal cuts
(e.g., pork leg) and sub-primal cuts (e.g., pork shank,
pork foot) for eventual packing and later distribution. 36 Modern processing facilities can process thousands of pigs per day. 37
Many pig farms are contracted to supply pigs to
specific packers. 38 The packer then outlines the “hog
32 N. Am. Meat Inst., supra note 28, at 7.
33 Peggy Lowe, Everything but the Squeal: How the Hog In-
dustry Cuts Food Waste, NPR (Sept. 29, 2014), https://tinyurl.com/2hp2nf8z.
34 Fresh Pork Production at Smithfield Foods, supra note 28,
at 00:00:48.
35 Id. at 00:01:50.
36 See id. at 00:01:55, see also U.S. Dep’t of Agric., Agric.
Mktg. Serv., A User’s Guide to USDA’s LMR Pork Carcass Cutout (2022), https://tinyurl.com/4sm54m9v.
37 Pet. App. 150a ¶ 13.
38 McBride & Key, supra note 26, at 13; see also Smithfield
Foods, Hog Production at Smithfield Foods, YouTube 00:02:10
(Oct. 9, 2013), https://tinyurl.com/45c9ta8s (describing “contract
growing” arrangement for Smithfield Foods’ hog production).
10
quantities and qualities,” or conditions under which
the pigs are raised—what type of food they are given,
when certain vaccines are administered, whether the
pigs are given growth hormones, and, particularly relevant here, what type of confinement system is used
for housing breeding sows. 39 This gives the packer “an
assured supply of hogs with known characteristics”
for eventual slaughter, processing, and sale, as if they
had produced the hogs themselves. 40 Thus, many
farmers know in advance—through the terms of their
contracts—the conditions under which their pigs
must be raised to be marketable to their contracted
packer.
Instead of contracting with farmers, some packers
operate their own farms. These packers thus selfmanage the conditions under which their pigs are
raised. In 2019 and 2020, the two largest packers
39 McBride & Key, supra note 26, at 4, 13. See, e.g., David
Jackson & Gary Marx, Illinois Contract Pig Farmer: Work is
Low-Paying, Physically Punishing, Chicago Trib. (Aug. 8, 2016),
https://tinyurl.com/5camehry (“But the animals are the property
of larger companies that pay these growers a ‘pig space’ fee and
dictate conditions of care, including supplying the feed and medications.”); Jacqui Fatka, HSUS Files Lawsuit Against Smithfield’s Sow Housing Claims, Nat’l Hog Farmer (Oct. 18, 2021),
https://tinyurl.com/2k9494jv (“Smithfield is supporting contract
growers through the conversion process [of phasing out gestation
crates] by providing guidance and expertise when requested and
have seen an increase in the number of farms that have converted or that have expressed interest in converting. Monroe reports that as of the end of 2020, approximately one-third of its
contract growers had converted to group housing.”).
40 Ron Plain et al., The Structure of the U.S. Pork Industry,
Fact Sheet Pork Information Gateway 4 (2001), https://tinyurl.com/4f4vmz7v.
11
owned almost a third of market pigs produced nationally: Smithfield Foods/WH Group (22%) and Seaboard
Foods (8%). 41
Either way—whether farms are owned by, or in
contract with, packers—petitioners’ assertion that
“sow farmers do not know where any particular pig’s
meat will be sold” is simply not reflective of today’s
swine industry. 42 Packers make their specifications
and expectations about sow housing conditions and
other matters abundantly clear to farmers, who have
successfully met those demands for years.
After the packing plant, pork products are distributed to a range of sellers and customers, including
grocery stores, restaurants, hotels, schools, and other
food service outlets. In some instances, packers contract directly with retailers to provide pork products
for later sale. 43 In other contexts, packers sell products to wholesale distribution companies like Sysco,
one of North America’s largest foodservice distributors. These distributors then sell the products to
41 Betsy Freese, Pork Powerhouses 2020: Backing Up, Successful Farming (Oct. 7, 2020), https://tinyurl.com/243xhd34.
42 See Pet. Br. 16.
43 See, e.g., Global Ag Media, JBS Plants Across North
America and Australia Reopen, The Pig Site (June 3, 2021),
https://tinyurl.com/2p8p2xpc (“JBS sells beef and pork under the
Swift brand, with retailers like Costco Wholesale Corp carrying
its pork loins and tenderloins.”).
12
retailers and other providers for later sale to the consumer. 44
Throughout the supply chain, tracing and segregation play an important role for both meeting customer demand and providing safe pork products.
II. The Pork Industry Has Long Traced
Product From Farm To Retail Sale And
Successfully Segregated Supply Chains.
Traceability in the food industry means the creation of ‘‘an information trail that follows [a food] product’s physical trail.” 45 A strong traceability system
has the ability to: (1) identify a specific animal product; (2) track an animal product from its origin to the
end of the supply chain (i.e., delivery of the product to
the consumer); and (3) verify the animal’s origin and
the production process that got it from its origin to the
consumer. 46
A. The pork industry has traced individual
pigs since at least the early 1900s.
Tracing in the pork industry has always involved
being able to identify the source of a particular pig.
This started with a crude system of ear notches and
has evolved into a highly sophisticated system of
44 See Pig Progress, Foodservice Distributor Sysco Says No
to Sow Stalls (July 24, 2012), https://tinyurl.com/57vxs75n.
45 G.C. Smith et al., Traceability from a US Perspective, 71
Meat Science 174, 175 (2005), https://tinyurl.com/2nzcskks.
46 See id. at 176-77.
13
tracing individual pigs from birth through all stages
of the production process.
One of the earliest systems of tracing was ear
notching. Ear notching is a system of incisions on
both ears of a pig, usually done soon after birth. Ear
notching provides a “permanent method of pig identification” from birth to slaughter. 47 The Universal EarNotching System dates back to at least the early
1900s. 48 Through ear notching, a farmer can identify
both specific pig litters as well as the individual pigs
within a litter. 49
Farmers also use tags to identify pigs. Tags are
plastic or metal discs applied to pigs’ backs or ears.
These tags allow for the identification of specific animals through USDA-approved identification numbers, including identification of animal-specific data,
such as the conditions in which the animal was bred
and raised.
47 Matthew Newman, I’m All Ears – Understanding the Universal Ear-Notching System for Swine, Rutgers 4-H Animal Science
Resource
Blog
(July
14,
2019),
https://tinyurl.com/22mr372t.
48 Id.; see also F. Madec, et al., Traceability in the Pig Pro-
duction Chain, 20(2) Rev. Sci. Tech. 523, 534 (2001), https://tinyurl.com/eetmbuws.
49 Newman, supra note 47.
14
Here is an example of an ear tag 50:
While ear notching and basic plastic tags are still
in use, larger farms as well as those producing pigs
for specialty markets have adopted newer technology
for tracking pigs.
Radio Frequency Identification (RFID) technology allows a farmer to attach an electronic ear tag
to a pig that can “store and track information through
a database using a readable scanner.” 51
National Swine Registry, Official Swine Ear Tags,
https://tinyurl.com/y53zmkmc (last visited Aug. 2, 2022).
50
51 Id.; see also Brian Strobel, RFID Improves Production of
Breeding Sows 8-12, Resource (July/Aug. 2021), https://tinyurl.com/3zfc7k8e.
15
Here is an example of RFID ear tags applied to
young piglets 52:
One of the most common uses of electronic ear
tags is for managing the feeding of sows. 53 Farmers
input information about specific pigs, including medical or housing information, using mobile or computer
52 Emmy Koeleman, Extra B Vitamins Profits Pig Perfor-
mance, All About
nyurl.com/ystftr43.
Feed
(Apr.
9,
2017),
https://ti-
53 Aerin Einstein-Curtis, Electronic Feeding Systems Limit
Feed Waste, Localize Sow Nutrition, FeedNavigator (Nov. 21,
2019), https://tinyurl.com/yc2shrtz; see also Pet. App. 272a
(“[E]ach sow is given an electronic tag that records how much
feed she needs based on her stage of pregnancy and her body
condition. The sow will walk into what looks like a stall to receive
her feed, and a hydraulic gate will close behind her. Reading her
tag number, the system will meter the proper amount of food for
the sow ….”).
16
applications. 54 Sows enter a feeding station with an
antenna that “reads” the electronic ear tag. 55 Based
on preset instructions captured from the ear tag for
each individual sow, a certain amount of food is provided for the sow to eat. 56 After the sow exits the feeding station, another sow is allowed to enter. 57
RFID tags can be updated throughout a pig’s life
with extremely detailed information about the pig.
For example, “identification tags … provide each animal’s farrowing data.” 58 RFID ear tags also allow
farms to store information such as the pig’s “father,
mother, date of birth and weight, … performance and
vaccinations.” 59 Given RFID tags’ ability to track and
maintain such detailed information across a pig’s life
cycle and the slaughter process, it is a well-accepted
industry practice to use RFID tags to trace and segregate pigs raised for specialty markets, such as pork
products certified to have never received food additives or to never have been housed in gestation or farrowing crates.
54 See, e.g., Allflex, User Manual, RS420NFC Portable Stick
Reader with NFC Feature 8, https://tinyurl.com/yejwze46 (last
visited Aug. 2, 2022).
55 Illinois Pork Producers Ass’n, Inside A Pig Barn – Electronic Sow Feeders, YouTube 00:01:25 (June 12, 2017), https://tinyurl.com/352kw8v6.
56 Id.
57 Id.
58 Pet. App. 304a.
59 Roxell, Market Trend: RFID Chip Revolutionizes the Pig
Sector (Nov. 2, 2020), https://tinyurl.com/2huw5ffw.
17
Tattoos are also placed on pigs soon after birth
and provide another permanent system of identification throughout the pig’s life cycle. 60
Even more advanced technology is used to trace
individual pigs. Biometrics, such as DNA fingerprinting, use an animal’s own DNA code or other biological marker to identify the specific animal and the
products derived from it, allowing “meat to be traced
with 100% precision” without the need for extensive
documentation throughout the supply chain. 61 Some
pork producers and retailers have also adopted
blockchain technology to “provide real-time traceability throughout the supply chain.” 62 Blockchain
“stores transactional information,” so that every step
in the supply chain for pork production can be captured in a trusted and unalterable record for later verification and tracking. 63
60 Palmer J. Holden & M.E. Ensminger, Swine Science 364
(7th ed. 2005).
61
Smith, supra note 45, at 178.
62 JD.com, Walmart, JD.com, IBM and Tsinghua University
Launch a Blockchain Food Safety Alliance in China (Dec. 14,
2017), https://tinyurl.com/5hbmad8b.
63 Mireille van Hilten, Guido Ongena, & Pascal Ravesteijn,
Blockchain for Organic Food Traceability: Case Studies on Drivers and Challenges, Frontiers in Blockchain (Sept. 30, 2020),
https://tinyurl.com/zwstbvcx.
18
B. Tracing and segregation also occur once
pigs are ready for slaughter and turned
into pork for retail sale.
When pigs arrive at a slaughterhouse, packers
continue to identify and trace “group[s] or individual
animals with their meat products.” 64 Tattoos—which
remain on a carcass during the entire slaughtering
process—are commonly used. These tattoos correspond to a coding system that allows the packing
plant to identify the origin of an individual pig or carcass throughout the production and slaughter process. 65 Using tattoos, every pig that will be
slaughtered can “be traced back through the entire
system,” from farm to “the finished product.” 66
The production of premium pork products also offers an example of existing segregation and tracing
methods. When meat will be labeled “certified organic,” for example, packers use a range of approaches to segregate the meat from non-organic
products. These techniques include: isolating incoming animals in separate pens for processing; sequencing slaughtering and processing of animals at
specified times of day or during the week separate
from other animals; and using ear tags to track
64 Elise Golan et al., U.S. Dep’t of Agric., Econ. Rsch. Serv.,
AER 830, Traceability in the U.S. Food Supply: Economic Theory
and Industry Studies 32 (2004), https://tinyurl.com/bdcpdrsz.
65 Fresh Pork Production at Smithfield Foods, supra note 28,
at 00:00:15.
66 Id.; Elizabeth Cox, Lessons About Proposition 12 from Recent Pork Producer Visits, Cal. Dep’t of Food & Agric. 3 (July
2022), https://tinyurl.com/4bn9af64.
19
incoming animals and segregate them. 67 Throughout
processing, record keeping allows for continued tracing of each individual animal, such as on carcass trolleys or on barcodes where meat is placed in bins for
movement through the packing plant. 68 Through
these systems, individual pigs can be identified from
their arrival to the packing plant to the packing of
their meat products for eventual sale.
Segregation and tracing within a packing facility
are especially accessible in the pork industry given
the vertical coordination of farms, contractors, and
producers. Pig farms make agreements with contractors, who are often packers, to supply particular types
of pigs for specific uses and markets. 69 Because packers can schedule in advance what types of pigs are arriving at their facilities at any given time, “the
batches of the products produced from segregated carcasses are segregated throughout the production
chain.” 70
III. The Traceability And Segregation Of Pork
Product Meet Critical Needs Of Pork
Producers And Consumers.
The segregation and tracing described above allow producers to comply with public health and food
67 Niche Meat Processor Assistance Network, Certified Or-
ganic, https://tinyurl.com/4ffv5cu6 (last visited Aug. 2, 2022).
68 See id.; see also Golan, supra note 64, at 32.
69 Madec, supra note 48, at 534.
70 Id. at 534-35.
20
safety requirements, meet consumer demand, and
market their products accurately.
Tracing and segregation are necessary for a
rapid response to disease outbreaks. “Pigs are
susceptible to many different diseases.” 71 Thus, pork
is a common source for foodborne-related disease outbreaks in the United States. 72 Both the USDA and the
National Pork Board mandate careful tracing of pigs
to prevent and mitigate disease outbreaks. As the
USDA explained, “[a] comprehensive animal disease
traceability system is [the pork industry’s] best protection against a devastating disease outbreak.” 73 The
USDA has therefore “committed to implementing a
modern system that tracks animals from birth to
slaughter using affordable technology that allows for
quick tracing of sick and exposed animals to stop disease spread.” 74 Since 2013, the USDA has required
that any pig sent over state lines must be traceable to
a specific farm or other livestock facility where it originated. 75
71 Pork Checkoff, PQA Plus, Education Handbook 7 (2022),
https://tinyurl.com/yw6s2rnb.
72 Elizabeth Pratt, Why Are Disease Outbreaks from Pork
Products on the Rise?, Healthline (Oct. 11, 2017), https://tinyurl.com/6tn5shvp.
73 U.S. Dep’t of Agric., Animal & Plant Health Inspection
Serv., Animal Disease Traceability (June 14, 2022), https://tinyurl.com/mtecbjvy.
74 Id.
75 9 C.F.R. §§ 86.2-.5, id. § 71.19.
21
Just this year, the National Pork Board announced a national tracing strategy to prevent and
prepare for foreign animal disease. Key to the strategy will be adopting AgView, “a free, pig contact-tracing platform developed for producers.” 76 Using the
AgView application, pork producers provide information on the type of farm they have, the number of
pigs, where pigs are located, animal movements instate and out-of-state, and lab results from foreign animal disease testing. 77 As the National Pork Board’s
Acting Chief Veterinarian explained, AgView “makes
disease traceback and pig movement data available to
the USDA and state animal health officials on day one
of a [foreign animal disease] outbreak.” 78 He stated
that, “[f]or the U.S. pork industry, AgView is the path
to protection for America’s pig farms that will help
navigate uncertainty in the event of a crisis.” 79
Tracing and segregation are necessary to
meet consumer demands. Growing consumer demand for premium pork products, such as “crate-free,
beta-agonist-free, organic, and antibiotic-free” meat,
has led pork producers to evolve their production
76 Jennifer Shike, National Pork Board CEO Addresses 2022
Priorities, Farm Journal
nyurl.com/yabpefy5.
(Jan.
4,
2022),
https://ti-
77
AgView, Frequently Asked Questions,
nyurl.com/3dvsxvsz (last visited Aug. 2, 2022).
https://ti-
78 Jennifer Shike, Why the U.S. Pork Industry Won’t Forget
2021,
Farm
Journal
nyurl.com/yc73zxja.
79 Id.
(Dec.
15,
2021),
https://ti-
22
practices. 80 “[F]armers and processors have already
been tracing product from sow farm to end-product for
years in order to market and sell premium pork products (such as ‘crate-free’ pork).” 81
The USDA’s Process Verified Program is the leading certification system for marketing this premium
pork. The Process Verified Program has stringent requirements for segregating and tracing pork. For example, packers may wish to market pork products as
“Never Fed Beta Agonists.” Beta Agonists are a class
of feed additives that “increase [the] growth rate] of
[pigs],” and some consumers will pay more for meat
from pigs who have not been fed these additives. 82 In
order to label the pork as “Never Fed Beta Agonists,”
packers must ensure that farmers segregate “live animals that have been fed beta agonists from those that
have not” and create a documented product identification system. 83 In this way, “Never Fed Beta Agonists” pork products are “traceable throughout
production” from farm to sale. 84 USDA’s Process Verified Program also requires the creation of verification
80 See U.S. Dep’t of Agric., Agric. Mktg. Serv., Livestock
Mandatory Reporting: Report to Congress 17 (2018), https://tinyurl.com/2p8awn7w.
81 Cox, supra note 66.
82 Lindsay Chicester, Heather DePra, & Galen Erickson,
Beta-agonists: What Are They and Should I Be Concerned?, Univ.
of Nebraska-Lincoln BeefWatch (Oct. 1, 2013), https://tinyurl.com/3awcnv4y.
83 U.S. Dep’t of Agric., Agric. Mktg. Serv., Quality Systems
Verification Program (QSVP) Never Fed Beta Agonists Program
2-3 (2019), https://tinyurl.com/yckkk34y.
84 Id. at 3.
23
testing to confirm that beta agonists were never provided. 85
Only after following the established guidelines
may packers “use the USDA PVP [Process Verified
Program] shield in accordance with Program requirements and market themselves as ‘USDA Process Verified.’” 86 The Process Verified shield looks like this:
Many of the largest pork producers participate in
the Process Verified Program, including Clemens
Food Group, JBS, Seaboard Foods, Smithfield, and
Tyson Fresh Meats. 87 For example, Smithfield, the
largest pork producer in the country, may market its
pork with the USDA Processed Verified shield and
claim that “All Pigs are Traceable to Farm of
85 Id. at 2.
86 U.S. Dep’t of Agric., Agric. Mktg. Serv., Process Verified
Program, https://tinyurl.com/ycxmjjyj (last visited Aug. 2, 2022).
87 See U.S. Dep’t of Agric., Agric. Mktg. Serv., PVP Directory,
https://tinyurl.com/3wdv8hn4 (last visited Aug. 2, 2022).
24
Origin.” 88 It advertises that its pork is “USDA Process
Verified” on its website and on some of its labels: 89
Seaboard Foods satisfied the USDA’s requirements for “Source Verification – Pork products can be
traced back to source farms through a source verification system.” 90
88 U.S. Dep’t of Agric., Official Listing of Approved USDA
Process
Verified
Programs
55
(2022),
https://tinyurl.com/npwfer5b.
Smithfield,
Why
Smithfield?,
https://tinyurl.com/385rpx2d (last visited Aug. 2, 2022); see also RobinWright.com, Balsamic Pork Tenderloin with Roasted Brussels
Sprouts and Shallots and Mashed Potatoes (Nov. 18, 2015),
https://tinyurl.com/5n8bb59n.
89
90 U.S. Dep’t of Agric., Agric. Mktg. Serv., Seaboard Foods
Process Verified Program, https://tinyurl.com/4pmkpwmb (last
visited Aug. 2, 2022).
25
Seaboard Foods also markets its pork with the
USDA Process Verified shield: 91
The USDA’s Process Verified Program is just one
program geared toward certifying marketing claims.
Under the Federal Meat Inspection Act, the Food
Safety and Inspection Service (FSIS) must approve
product labels with animal-raising claims before they
are sold to ensure that they are truthful and not misleading. 92 These include animal welfare and
91 BBQ All Stars, Prairie Fresh USA Prime® Pork Butts,
https://tinyurl.com/52yc5k6h (last visited Aug. 2, 2022) (picture
enlarged for readability).
92 See 21 U.S.C. § 607(d); 9 C.F.R. § 412.1(c)(3) & (e).
26
environmental claims, such as “Humanely Raised,
Sustainably Farmed, and Raised with Environmental
Stewardship.” 93
For example, the agency requires that pork producers verify claims regarding the “environment in
which [pigs] were raised during their lifespan,” such
as a claim that a pork product is “Crate Free,” 94 like
this example from Perdue Farms’ Coleman Natural
Foods: 95
93 U.S. Dep’t of Agric., Food Safety and Inspection Serv., Labeling Guideline on Documentation Needed to Substantiate Animal Raising Claims for Label Submissions 7 (2019),
https://tinyurl.com/bdfrdyav.
94 Id. at 10.
95 Perdue Farms, Crate-Free Pork: What Crate-Free Means,
Pinterest, https://tinyurl.com/23nbpsxh.
27
“Crate free” pork generally means that neither
the pig, nor its parents, were housed in gestation
crates or farrowing crates. 96 FSIS will only approve a
crate-free label after the producer provides documentation describing the controls it uses to ensure animals are raised according to this claim, including “the
product tracing and segregation mechanism from
time of slaughter or further processing through packaging and wholesale or retail distribution” and “a
written description of the identification, control, and
segregation of non-conforming animals/product.” 97
Here is an example of crate-free pork sausage from
Perdue Farms’ Coleman Natural Foods ® 98:
96 Animal Welfare Institute, A Consumer’s Guide to Food
Labels and Animal Welfare, https://tinyurl.com/3eyazd4f (last
visited Aug. 2, 2022).
97 Labeling Guideline, supra note 93, at 10-11.
98 Coleman Natural Foods, Uncured Smoked Polish Kielbasa, https://tinyurl.com/3npctv7k (last visited Aug. 2, 2022)
(picture enlarged for readability).
28
“Crate-Free” is just one claim that must be approved by the FSIS. Others include living- and raising-conditions claims like Free Range, Not Confined,
Free Roaming, Pasture Fed, Pasture Grown, Meadow
Raised, and Pasture Raised. 99 Labeling meat with
any of those claims requires tracing and segregation
from the farm of origin to the point of sale.
Tracing and segregation are necessary to
meet retailer demands. Numerous large food companies, retailers, and packers have also insisted that
producers adhere to strict segregation and tracing
protocols to ensure that they are making accurate
claims to consumers about the pork they are sourcing.
There are many examples. Target committed to
eliminating gestation-crated pork from its supply
chain in 2012. 100 The company projects that by September 2022, the majority of all fresh pork sold at Target will be produced from open pen gestation
systems. 101 Marriott International has encouraged its
suppliers to “grow their supply of gestation crate-free
and group-housed pork,” and as of year-end 2019
“8.4% of pork purchased by hotels in the U.S., Canada, [the Caribbean, and Latin America] was classified as either gestation crate-free or group-housed.” 102
99 Labeling Guideline, supra note 93, at 10.
100 Target, Food Animal Welfare Commitments, https://tinyurl.com/2p8fxmxe (last visited Aug. 2, 2022).
101 Id.
102 Marriott International, 2020 Serve 360 Report: Sustainability and Social Impact at Marriott International 25, 54 (2020),
https://tinyurl.com/yvecabys.
29
In 2012, Sodexo announced that it would phase out
the use of gestation crates among its pork suppliers
by 2022, and required increased tracing throughout
its supply chain. 103 By May 31, 2020, “24% of [Sodexo’s] pork came from traceable reduced crate supply
chains, and a small amount from completely cratefree operations.” 104 Restaurant Brands International
Inc. (RBI), which owns Burger King, has eliminated
the use of gestation crates in its European and African markets, and expects gestation crates will be removed from its U.S., Canada, Australia, and New
Zealand markets in the near future. 105 Whole Foods
has “prohibited the use of gestation and farrowing
crates by all of [its] pork suppliers since 2003.” 106 The
Cheesecake Factory expects to transition “75% of [its]
pork supply to crate-free by the end of 2022.” 107
Chipotle refuses to serve pork from suppliers that use
gestation crates, 108 and recently announced an
103 Sodexo, Update on Animal Welfare in Our Responsible
Sourcing Strategy (Dec. 31, 2020), https://tinyurl.com/2p8de5h6.
104 Id.
105 Restaurant Brands International Inc., Animal Health &
Welfare, https://tinyurl.com/5n7s8w55 (last visited Aug. 2, 2022).
106 Frances Flower, No Gestation Crates for Our Pigs, Whole
Foods Market (Mar. 22, 2012), https://tinyurl.com/4fjarm9u.
107 The Cheesecake Factory, 2021 Corporate Social Respon-
sibility Report 35, https://tinyurl.com/bdhdzvra (last visited Aug.
2, 2022).
108 Candice Choi, Chipotle: No Pork at a Third of Restaurants, Associated Press (Jan. 13, 2015), https://tinyurl.com/mttm3ntz.
30
investment in RFID technology to better trace source
ingredients. 109
All of these examples show that segregation and
tracing are a reality in the modern pork market.
IV. The Pork Industry Can Use Existing Tracing
And Segregation Methods To Supply
Prop 12-Compliant Pork.
Existing animal identification systems—such as
RFID ear tagging—can be used to identify specific
pigs and store information on whether the pig’s
mother was housed in a manner consistent with
Prop 12.
As described above, ear tags are already used to
identify individual pigs, their health history, feeding
history, and interstate movement. 110 These tags already capture information relevant to specialty products like “grass-fed” or “hormone free,” as well as
information about humane farming practices, like a
pig’s mother’s housing, for “crate-free” pork. 111
109 Chipotle, Chipotle Tests RFID Technology for Traceability (Mar. 31, 2022), https://tinyurl.com/226sj2x3.
110 See U.S. Dep’t of Agric., Animal and Plant Health Inspec-
tion Serv., Official Eartags: National Uniform Eartagging System (June 25, 2018), https://tinyurl.com/5czt7c3x.
111 See Greg Krahn, Precision Technology’s Role in R&D,
Nat’l Hog Farmer (Apr. 1, 2021), https://tinyurl.com/yc6f45yd
(“Through tracking and verification, improvements in swine welfare can be made and will meet future pork production stakeholders and consumer expectations. Development and
implementation of these technologies improves the transparency
31
Tracking Prop 12-compliant pork using RFID ear
tags, and even other lower-tech tracing methods like
tattoos, would be an exceedingly minor adjustment to
the data already tracked by the pork industry, and
would not be a substantial burden on interstate commerce.
Once data on Prop 12 compliance is associated
with a particular pig, it is entirely possible to segregate that pig from others. Many pig farmers already
segregate pigs under contracts with packers and others to meet the needs of specific market segments. 112
These same approaches will allow farmers to separate
and trace Prop 12-compliant litters. 113
and overall sustainable future of animal agriculture.”); see also
Joel L. Greene, Cong. Rsch. Serv., R40832, Animal Identification
and Traceability: Overview and Issues 7 (2010), https://tinyurl.com/ye75d6b5 (“When consumers seek meat, eggs, or milk
from animals raised according to specified organic, humane
treatment, or environmental standards, ID and traceability can
help firms verify production methods.”).
112 Madec, supra note 48, at 534 (“A growing number of pork
producer networks…have, as a rule, a partnership with the
slaughter/processing company that separates the pigs for the
[program] in question by groups.”).
113 Petitioners are incorrect in suggesting that tracing Prop
12-compliant pork “would involve knowing” how each breeding
sow “was housed at all times,” throughout its entire life. Pet. Br.
16-17 n.7. While current technology would surely allow for processing and storage of that information, pork is compliant with
Prop 12 if it is derived from the offspring of sows that were provided sufficient space during a specific production cycle. Cal.
Dep’t of Food & Agric. Animal Health & Food Safety Servs., Proposed Regulations Animal Confinement 35 (May 28, 2021),
32
Similarly, packers’ existing processes of identifying groups and individual pigs for slaughter—including carcass tagging, tattoos, and trolley tracking—can
be leveraged to both trace and segregate Prop 12-compliant meat products at the packing facility. Today,
packing facilities already have processes to associate
ear tags and other physical identifiers, like tattoos,
from slaughter to the packaging of the finished product, allowing tracing even for particular cuts of pork.
All stakeholders in the supply chain can thus capture and track Prop 12-compliant pork throughout a
pig’s life cycle. Indeed, it is possible through tattoos
used in packing plants for producers to identify from
a single cut of meat all available data about that product, including the breeding farm where the pig was
born and the housing system used for sows at that
farm. 114
Newer technological advances like blockchain
technology offer even more possibilities for efficiently
identifying and tracking individual pigs and pork
products. Walmart’s recent blockchain pilot illustrates how Prop 12-compliant pork could be traced
across the supply chain. In partnership with IBM,
Walmart announced a project in October 2016 to
“trace pork sold in its China stores” and “the origin of
mangos sold in Walmart’s US stores” using
https://tinyurl.com/4zdp4jsb; see id. at 33 (“A new production cycle for sows begins when each litter of piglets is weaned.”).
114 See, e.g., Fresh Pork Production at Smithfield Foods, supra note 28, at 00:00:15.
33
blockchain technology. 115 In 2011, China experienced
“massive pork mislabeling,” where pork products labeled “organic” actually were just regular pork. 116 The
blockchain pilot created a web-based interface to
track barcodes and labels that were uploaded to the
system by suppliers at different stages in the supply
chain. 117 The new system allowed Walmart to trace
“[i]nformation about farm origination, batch numbers, processing data, soil quality and fertilizers, and
even storage temperatures and shipping details” that
could “be uploaded on an e-certificate and linked to
the product package via a QR code.” 118 The pilot also
“reduced time for tracking mango origins from seven
days to 2.2 seconds.” 119 Wendy’s is also “test[ing] the
use of blockchain technology to track and trace some
of [its] Applewood Smoked Bacon through every step
of the supply chain.” 120
It is therefore not surprising that major pork producers, including some of the country’s largest
Hyperledger, How Walmart Brought Unprecedented
Transparency to the Food Supply Chain with Hyperledger Fabric
4 (2019), https://tinyurl.com/yckjfewk.
115
116 Reshma Kamath, Food Traceability on Blockchain:
Walmart’s Pork and Mango Pilots with IBM, 1 J. Brit. Blockchain Ass’n 47, 47 (June 12, 2018), https://tinyurl.com/2n7jjy94.
117 Hyperledger, supra note 115, at 5; see also Melanie Lee,
Wal-Mart’s Pork Scandal Highlights Struggles in China, Reuters (Oct. 14, 2011), https://tinyurl.com/2fzjcxuk.
118 Kamath, supra note 116, at 49.
119 Id. at 47.
120 Wendy’s, 2020 Corporate Responsibility Report 15 (2021),
https://tinyurl.com/y5f4tddy.
34
packers, have already explained that existing traceability systems can be used to produce and supply Prop
12-compliant pork. Hormel Foods confirmed it “is currently working with its supply chain to implement internal processes for segregation” of Prop 12-compliant
pork. 121 The company expects “a full range of compliant products to be available in both retail and foodservice.” 122 Perdue Farms’ Sioux-Preme Packing
Company “has prepared its packing facilities to segregate California compliant pork to the extent any of
its producers require packing for California bound
pork after January 1, 2022.” 123 JBS, Premium Iowa
Pork, and Smithfield have “demonstrated their commitment to production of Prop 12-compliant pork,” including through the use of segregation and tracing. 124
Numerous other pork producers and processors
have also said that their existing systems will allow
them to trace and segregate Prop 12-compliant pork
in some fashion, including: Clemens Food
121 Hormel Foods, Hogs, https://tinyurl.com/ycy39pd5 (last
visited Aug. 2, 2022).
122 Id.
123 Memorandum of Amicus Curiae Perdue Premium Meat
Co. at 9, Iowa Pork Producers Ass’n v. Bonta, No. 3:21-cv-3018
(N.D. Iowa Aug. 4, 2021), ECF No. 57.
124 Cox, supra note 66, at 1-2.
35
Group/Hatfield, 125 Coleman, 126 duBreton, 127 Tyson
Foods, 128 North Country Smokehouse, 129 Seaboard, 130
and Vande Rose Farms. 131
Given existing technologies and processes, pork
producers and others throughout the supply chain can
trace and segregate Prop 12-compliant pork without
any substantial burden or expense.
125 Hatfield, A Higher Standard of Animal Care, https://tinyurl.com/yc3vf58v (last visited Aug. 2, 2022).
Coleman Natural Foods, Frequently Asked Questions:
Claims & Certifications: Is Coleman Natural Pork Proposition
12 and Question 3 Compliant?, https://tinyurl.com/mryt4xxy
(last visited Aug. 2, 2022).
126
127 Swineweb, New Hampshire’s North Country Smokehouse: Making Prop 12 Compliant Pork Accessible (Sept. 21,
2021), https://tinyurl.com/ye2y4hth.
See Tyson Foods, Third Quarter 2021 Earnings 15
(2021), https://tinyurl.com/3wby2y5s.
128
129 North Country Smokehouse, Prop 12 Compliant Bacon
for Foodservice Professionals, https://tinyurl.com/npp2kyj2 (last
visited Aug. 2, 2022).
130 Tom Polansek, U.S. Pork Producer to Resume Shipments
to California After Farm Animal Law Delayed, Reuters (Feb. 8,
2022), https://tinyurl.com/bde2mayy (“Seaboard said it is converting some farms to comply with the law and expects to have
pork for sale to California this year that complies with Proposition 12.”).
131 Vande Rose Farms, LinkedIn, https://tinyurl.com/5n8ptnfb (last visited Aug. 2, 2022).
36
CONCLUSION
For the foregoing reasons, this Court should affirm the judgment of the court of appeals.
Respectfully submitted,
Melanie R. Hallums
Emanuel Powell
ORRICK, HERRINGTON &
SUTCLIFFE LLP
1152 15th Street N.W.
Washington, D.C.
20005
August 4, 2022
Elizabeth R. Moulton
Counsel of Record
ORRICK, HERRINGTON &
SUTCLIFFE LLP
405 Howard Street
San Francisco, CA 94105
(415) 773-5700
emoulton@orrick.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.