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 12, 2022

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NO. 21-468

In the Supreme Court of the United States

NATIONAL PORK PRODUCERS COUNCIL &

AMERICAN FARM BUREAU FEDERATION,

Petitioners,

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 AMICI CURIAE

THE CENTER FOR A HUMANE ECONOMY,

ANIMAL WELLNESS ACTION,

AMERICANS FOR FAMILY FARMERS,

SPCA INTERNATIONAL, AND

THE CHRISTIAN ANIMAL RIGHTS ASSOCIATION

IN SUPPORT OF RESPONDENTS

SCOTT EDWARDS

KATHRYN SCHULTZ

THE CENTER FOR

A HUMANE ECONOMY

P.O. BOX 30845

BETHESDA, MD 20824

ANIMAL WELLNESS ACTION

611 PENNSYLVANIA AVE. S.E. #136

WASHINGTON, DC 20003

JESSICA L. BLOME

COUNSEL OF RECORD

GREENFIRE LAW, P.C.

P.O. BOX 8055

BERKELEY, CA 94710

(510) 900-9502

JBLOME@GREENFIRELAW.COM

AUGUST 12, 2022

SUPREME COURT PRESS

COUNSEL FOR AMICI CURIAE

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... iii

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

SUMMARY OF ARGUMENT .................................... 3

ARGUMENT ............................................................... 5

THE EXPANSIVE AND SWEEPING DORMANT

COMMERCE CLAUSE DOCTRINE THE

PETITIONERS ENVISION HAS NO BASIS IN

THE CONSTITUTION, AND SO PROPOSITION 12

SURVIVES JUDICIAL SCRUTINY .......................... 5

A. Originalist and Textualist Interpretations of the Constitution Hold That the

Dormant Commerce Clause Is a

Judicial Figment of the Imagination ......... 5

B. Petitioners’ Vision of a Sweeping

Dormant Commerce Clause Imperils the

American Institution of State

Autonomy and Sovereignty Enshrined

by the 10th Amendment ............................. 7

II. THE APPROPRIATE JURISPRUDENTIAL TEST

FOR PROPOSITION 12 IS THE PIKE BALANCING

TEST, UNDER WHICH PROPOSITION 12

SURVIVES ........................................................... 9

A. The Proper Test Under Which to

Analyze This Factual Scenario Is Pike,

Not Brown-Forman/Healy/Baldwin or

the “Extraterritoriality” Doctrine ................ 9

TABLE OF CONTENTS – Continued

Page

1. The Broad Manifestation of the

Extraterritoriality Doctrine that

Prohibits Statutes Having the

“Practical Effect” of Regulating Outof-State Commerce Is Unworkable ..... 11

2. In Any Case, Proposition 12 Does Not

Have the Effect of Regulating Outof-State Commerce .............................. 15

A. Contrary to Petitioners’ Claims,

Proposition 12 Has Multiple Legitimate

Purposes in Addition to Humane

Concerns .................................................... 18

1. Food Safety and Public Health

Concerns are the Quintessential

Legitimate State Interests Under

Pike and Its Progeny ........................... 19

B. California’s Interest in Public Health

and Consumer Safety Is Rationally

Tied to Proposition 12 ............................... 21

C. Petitioners and Their Amici

Fundamentally Misrepresent the

Economic Impacts of Proposition 12 ........ 23

CONCLUSION.......................................................... 33

iii

TABLE OF AUTHORITIES

Page

TABLE OF AUTHORITIES

CASES

Ass’n for Accessible Meds. v. Frosh,

887 F.3d 664 (4th Cir. 2018)................................ 11

Baldwin v. G.A.F. Seelig, Inc.,

294 U.S. 511 (1935) ........................... 4, 10, 16, 17

Bendix Autolite Corp. v. Midwesco Enterprises,

Inc., 486 U.S. 888 (1988) ..................................... 8

Bibb v. Navajo Freight Lines, Inc.,

359 U.S. 520 (1959) ..................................... 19, 30

Brown-Forman Distillers Corp. v.

New York State Liquor Auth.,

476 U.S. 573 (1986) ........................... 4, 10, 16, 17

Comptroller of Treasury of Maryland v.

Wynne, 575 U.S. 542 (2015) ........................ 5, 6, 7

Core-Mark Int’l, Inc. v. Montana Bd. of

Livestock, No. 15-35705, 2018 WL

5724046 (D. Mont. Nov. 1, 2018) ...................... 14

Edgar v. MITE Corp.,

457 U.S. 624 (1982) ........................................... 12

Energy and Environment Legal Institute v.

Epel, 793 F.3d 1169 (10th Cir. 2015) .... 10, 13, 17

Exxon Corp. v. Governor of Maryland,

437 U.S. 117 (1978) ........................................... 28

Gen. Motors Corp. v. Tracy,

519 U.S. 278 (1997) ............................................. 7

Healy v. Beer Inst., Inc.,

491 U.S. 324 (1989) ................................... passim

TABLE OF AUTHORITIES – Continued

Page

Hennington v. State of Georgia,

163 U.S. 299 (1896) ............................................. 9

Int’l Dairy Foods Ass’n v. Boggs,

622 F.3d 628 ...................................................... 31

Legato Vapors, LLC v. Cook,

847 F.3d 825 (7th Cir. 2017) ............................. 17

Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456 (1981) ............................................. 9

Mintz v. Baldwin,

289 U.S. 346 (1933) ............................................. 9

Nat’l Ass’n of Optometrists & Opticians v.

Harris, 682 F.3d 1144 (9th Cir. 2012) ................ 9

New State Ice Co. v. Liebman,

285 U.S. 262 (1932) ............................................. 8

People v. Superior Ct. (Pearson),

227 P.3d 858 (Cal. 2010) ................................... 18

Pharm. Research & Mfrs. of Am. v. Walsh,

538 U.S. 644 (2003) ................................. 6, 10, 11

Pharm. Research and Mfrs. v. Concannon,

249 F.3d 66 (1st Cir. 2001) ................................ 10

Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970) ............................. 3, 4, 15, 19

Pro. Engineers in California Gov’t v. Kempton,

155 P.3d 226 (Cal. 2007) ..................................... 18

Quill Corp. v. North Dakota,

504 U.S. 298 (1992) ........................................... 13

Raymond Motor Transp., Inc. v. Rice,

434 U.S. 429 (1978) ..................................... 30, 31

TABLE OF AUTHORITIES – Continued

Page

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018) ....................................... 13

Southern Pacific Co. v. Arizona,

325 U.S. 761 (1945) ............................... 16, 30, 31

Tennessee Wine & Spirits Retailers Ass’n v.

Thomas, 139 S. Ct. 2449 (2019) ........................... 7

CONSTITUTIONAL PROVISIONS

U.S. Const. art. I, § 8, cl. 3...................................... 6, 8

STATUTES

Cal. Health & Safety Code § 25990 et seq ................ 18

OTHER AUTHORITIES

Associated Press,

Popular Hard Seltzers to Be Scarcer in

Utah Under New Law, U.S. NEWS (Mar. 3,

2022), https://www.usnews.com/news/

business/articles/2022-03-03/popularhard-seltzers-to-be-scarcer-in-utah-undernew-law .............................................................. 14

Brannon P. Denning,

Extraterritoriality and the Dormant

Commerce Clause: A Doctrinal PostMortem, 73 LA. L. REV. 979 (2013) .................... 12

Cal. Sec’y of State,

Voter Information Guide 70 (2018), https:/

/vig.cdn.sos.ca.gov/2018/general/pdf/

complete-vig.pdf ................................................ 19

TABLE OF AUTHORITIES – Continued

Page

Chad DeVeaux,

One Toke Too Far: The Demise of the

Dormant Commerce Clause’s

Extraterritoriality Doctrine Threatens the

Marijuana-Legalization Experiment, 58

B.C. L. REV. 953 (2017)...................................... 12

Chris Dall,

FDA Reports Another Rise in Antibiotic

Sales for Livestock, University of

Minnesota Center for Infectious Disease

Research and Policy (Dec. 16, 2020),

https://www.cidrap.umn.edu/newsperspective/2020/12/fda-reports-anotherrise-antibiotic-sales-livestock ........................... 22

ConAgra,

Conagra Brands: Frequently Asked

Questions, https://www.conagrabrands.

com/frequently-asked-questions..................... 27

Ctrs. for Disease Control and Prevention,

About Antimicrobial Resistance, https://

www.cdc.gov/drugresistance/about.html .......... 21

Ctrs. for Disease Control and Prevention,

Antibiotic Resistance Threats in the

United States 28 (2019), https://www.cdc.

gov/drugresistance/pdf/threats-report/

2019-ar-threats-report-508.pdf ......................... 21

Dr. Elizabeth Cox,

Lessons About Proposition 12 from Recent

Pork Producer Visits, Cal. Dep’t of Food

and Agric. Animal Care Program 2 (July

vii

TABLE OF AUTHORITIES – Continued

Page

2022), https://www.cdfa.ca.gov/AHFSS/

pdfs/prop-12_pork_producer_visits.pdf ............ 25

Gerald R. Bodisch,

Economic Effects of State Bans on Direct

Manufacturer Sales to Car Buyers, U.S.

Dep’t of Just. (May 2009), https://www.

justice.gov/sites/default/files/atr/legacy/

2009/05/28/246374.pdf ...................................... 14

Hanbin Lee et al.,

Economics of Mandates on Farm

Practices: Lessons from Regulation of Pork

Sold in California, UC Davis Agric.

Workshop (Oct. 6, 2020), https://arefiles.

ucdavis.edu/uploads/filer_public/7f/7c/

7f7ca688-97724b3aaa871d9880a0b1ab/

pork_ag_econ_workshop_hanbin_lee.pdf ......... 28

Hormel Foods,

Hormel Foods Company Information

About California Proposition 12, https://

www.hormelfoods.com/newsroom/news/

hormel-foods-company-information-aboutcalifornia-proposition-12/ .................................. 26

Jack L. Goldsmith & Alan O. Sykes,

The Internet and the Dormant Commerce

Clause, 110 YALE L.J. 785 (2000)...................... 12

JBS USA,

About Our Company, https://

sustainability.jbssa.com/chapters/who-weare/about-our-company/ .................................... 30

viii

TABLE OF AUTHORITIES – Continued

Page

Jennifer Wang,

The Chinese Billionaire Whose Company

Owns Troubled Pork Processor Smithfield

Foods, FORBES (Apr. 16, 2020) .......................... 30

John P. Brooks & M.R. McLaughlin,

Antibiotic Resistant Bacterial Profiles of

Anaerobic Swine Lagoon Effluent, 38

JOURNAL OF ENVIRONMENTAL QUALITY

2431 (2009) ........................................................ 22

John P. Brooks et al.,

Microbial Ecology, Bacterial Pathogens,

and Antibiotic Resistant Genes in Swine

Manure Wastewater as Influenced by Three

Swine Management Systems, 57 WATER

RESEARCH 96 (2014)............................................ 22

Julian N. Eule,

Laying the Dormant Commerce Clause to

Rest, 91 YALE L.J. 425 (1982) ............................ 20

Katie Doherty,

Smithfield: on Track for Crate-Free Sows

by ’17, ARKANSAS DEMOCRAT GAZETTE

(Jan. 2013) ......................................................... 24

Kroger Co.

Animal Welfare Policy (Aug. 2021), https:/

/www.thekrogerco.com/wp-content/

uploads/2018/07/The-Kroger-Co_Animal

WelfarePolicy_2018-July.pdf ............................ 26

Melinda Wenner Moyer,

How Drug-Resistant Bacteria Travel from

the Farm to Your Table, SCIENTIFIC

AMERICAN (Dec. 1, 2016) ................................... 21

TABLE OF AUTHORITIES – Continued

Page

MERRIAM-WEBSTER,

https://www.merriam-webster.com/

dictionary/regulate (last visited Aug. 9,

2022). ................................................................. 15

Niman Ranch,

Frequently Asked Questions,

https://www.nimanranch.com/faq/ ..................... 29

North Country Smokehouse

Making Prop 12 Compliant Pork

Accessible, PR NEWS WIRE (Sept. 20,

2021), https://www.prnewswire.com/newsreleases/making-prop-12-compliant-porkaccessible-301380630.html ............................... 29

Peter C. Felmly,

Beyond the Reach of States: The Dormant

Commerce Clause, Extraterritorial State

Regulation, and the Concerns of Federalism,

55 MAINE L. REV. 467 (2003) ............................... 12

Smithfield Foods,

Smithfield Foods Recommends Its

Contract Growers Convert to Group

Housing for Pregnant Sows, GLOBE

NEWSWIRE (Jan. 7, 2014), https://www.

globenewswire.com/news-release/2014/01/

07/600779/10063123/en/Smithfield-FoodsRecommends-Its-Contract-GrowersConvert-to-Group-Housing-for-PregnantSows.html .......................................................... 24

TABLE OF AUTHORITIES – Continued

Page

Stephanie Strom,

McDonald’s Set to Phase Out Suppliers’

Use of Sow Crates, NEW YORK TIMES

(Feb. 13, 2012) ................................................... 26

Stop & Shop,

Farm Animal Welfare Policy,

https://stopandshop.com/pages/farmanimal-welfare-policy/ ....................................... 26

Target,

Food Animal Welfare Commitments,

https://corporate.target.com/

sustainability-ESG/environment/animalwelfare/food-animal-welfare ............................. 26

Tim Carman,

Pork Industry Gives Sows Room to Move,

THE WASHINGTON POST (May 29, 2012) ...... 26, 27

Tyson Foods,

Sow Housing, https://www.tysonfoods.

com/news/viewpoints/sow-housing ................... 24

Tyson Foods,

Tyson Foods Third Quarter 2021

Earnings August 9, 2021 at 9:00 a.m.

Eastern 15 (Aug. 9, 2021), https://s22.

q4cdn.com/104708849/files/doc_financials/

2021/q3/08-11-21_Tyson-Foods-080921.

pdf ...................................................................... 25

USDA Nat’l Agric. Stat. Serv.,

U.S. Hog Industry 3 (Mar. 2016) https://

www.nass.usda.gov/Publications/

Highlights/2016/HogIndustryHighlights_

No2016-1.pdf ..................................................... 29

TABLE OF AUTHORITIES – Continued

Page

Walmart

Animal Welfare (April 21, 2022), https://

corporate.walmart.com/esgreport/esgissues/animal-welfare........................................ 26

INTEREST OF AMICI CURIAE1

Amici are non-profit organizations united in their

interest in seeing Proposition 12 upheld by the Court

as a lawful exercise in a state’s power to regulate consumptives that end up on its citizens’ plates. When a

state has legitimate and serious concerns about the

humane treatment of the animals that form part of

our food chain, about food safety, and about public

health, it is appropriate for a state to regulate in the

way California has done.

Amicus the Center for a Humane Economy (the

Center) is a 501(c)(3) nonprofit headquartered in

Maryland. It is the first nonprofit of its kind, focusing

specifically on influencing the conduct of corporations

to forge a more humane economy. Its efforts include

corporate engagement, advocacy campaigns, consumer

education, and research and analysis of business practices. In a society where consumers, investors, and

stakeholders consistently report a preference for the

humane treatment of animals, the Center works to

make these desires for social responsibility a reality.

Amicus Animal Wellness Action (AWA), a 501(c)(4)

nonprofit headquartered in Washington, D.C., works

to promote animal welfare by advocating for the passage and enforcement of laws that protect animals from

cruelty. AWA advocated for Proposition 12 and both it

and the Center have encouraged companies to source

1 All parties have consented to this filing. No counsel for a party

authored this brief either in whole or in part. No person other

than amici and their counsel made a monetary contribution to

the preparation and submission of this brief.

products from humanely raised animals, rather than

from producers who rely on extreme confinement as a

routine husbandry method.

Amicus Americans for Family Farmers (AFF) is a

501(c)(3) nonprofit dedicated to preserving family farms

and rural communities. AFF promotes policies that

support strong and vibrant rural communities, sustainable food systems, opportunities for family farmers,

the availability of safe and healthy food for all, and

responsible farming practices. AFF President Donna

Krudwig began advocating against the use of gestation

crates in animal agriculture in 2002 and was involved

in gathering signatures during the initiative petition

process for Proposition 2 in 2008 and for Proposition

12 in 2018.

Amicus SPCA International (SPCAI) was founded

in the United States in 2006 to advance the safety and

well-being of animals around the world. SPCAI runs

major domestic and international initiatives, including

a Shelter Support Fund in over sixty countries, rescuing

soldiers’ animals in Baghdad, Afghanistan, Lebanon,

Georgia, and elsewhere, and providing critical veterinary supplies to organizations on almost every continent.

SPCAI also works to educate concerned citizens about

a variety of animal welfare issues and promotes the

improved treatment of animals through government

policy around the globe – whether those animals be

companion animals like dogs and cats, or farmed

animals like the sows of Proposition 12.

Amicus the Christian Animal Rights Association

(CARA), a non-profit 501(c)(3) organization, is a nondenominational Christian and Bible-based ministry

dedicated to advocating for, protecting, and defending

the rights of all sentient animals. CARA supports and

encourages Christian animal rights activists around the

world and educates fellow Christians on the importance

of caring for animals and animal issues.

SUMMARY OF ARGUMENT

Petitioners have an outsized vision of the dormant

Commerce Clause. Instead of an appropriately tailored

limit on states’ protectionist impulses, petitioners

imagine a behemoth that major corporations can set

upon state laws that they deem adverse to their own

business interests.

The Constitution, however, contains no such

Goliath. Originalist and textualist interpretations argue

that today’s dormant Commerce Clause should not

even exist as a legal doctrine: it has no textual support,

was not intended by the Founders, and clashes with our

federalist system. And even if the dormant Commerce

Clause is rationally borne of the Commerce Clause,

the superpowered version that petitioners depict is

not only a departure from earlier jurisprudence, it is

also an affront to state autonomy, liberty, and authority.

What petitioners are asking this Court to do is to

strike down a law democratically enacted by the most

populous state with the largest economy in the Union

to financially benefit a handful of giant food conglomerates – two of the largest of which are foreign-owned,

see infra pp. 31-32. That, under any analysis, cannot be

what the framers of the Constitution envisioned.

When selecting the appropriate means of analysis

for Proposition 12, the Pike v. Bruce Church, Inc., 397

U.S. 137 (1970), balancing test emerges as the proper

doctrinal choice, not the “extraterritoriality” analysis

or the Baldwin/Brown-Forman/Healy strain of case

law. Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935);

Brown-Forman Distillers Corp. v. New York State

Liquor Auth., 476 U.S. 573 (1986); Healy v. Beer Inst.,

Inc., 491 U.S. 324 (1989) (plurality opinion).

This is because Proposition 12 does not directly

regulate out-of-state activity, nor does it have the

practical effect of doing so. Proposition 12 also does

not control prices, either directly or by “inevitable

effect”; indeed, expert analysis has revealed that pork

prices outside of California will hardly be affected.

Rather, the Pike test is ideally suited to a law that

was passed for reasons including the consumption

of humanely treated animals, food safety, and public

health. An honest assessment balancing the law’s

legitimate purposes against what economic experts

repeatedly demonstrate is a minimal impact on interstate commerce leads to the conclusion that Proposition

12 should be upheld. Otherwise, the judiciary not only

scorns the clear will of Californian voters, it also

imperils a wide range of other state laws expressing

citizens’ and state legislatures’ political wills.

ARGUMENT

THE EXPANSIVE AND SWEEPING DORMANT

COMMERCE CLAUSE DOCTRINE THE PETITIONERS

ENVISION HAS NO BASIS IN THE CONSTITUTION,

AND SO PROPOSITION 12 SURVIVES JUDICIAL

SCRUTINY.

Petitioners’ argument, at its core, insists that the

Constitution prohibits a state from regulating products

purchased within the boundaries of that state when

those state-enacted prerogatives have even a marginal

impact on interstate commerce. Under petitioners’

unbridled view, there are few state laws that could

survive such scrutiny. But thankfully the Constitution

does not do so and was never intended to do so.

A. Originalist and Textualist Interpretations

of the Constitution Hold That the Dormant

Commerce Clause Is a Judicial Figment

of the Imagination.

“The fundamental problem with our negative

Commerce Clause cases is that the Constitution does not contain a negative commerce

clause. It contains only a Commerce Clause.”

Former Justice Antonin Scalia in Comptroller of

Treasury of Maryland v. Wynne, 575 U.S. 542, 572

(2015) (Scalia, J., dissenting).

The champion of originalist and textualist Constitutional interpretation, former Justice Scalia, was

famously skeptical of the dormant, or “negative,”

Commerce Clause. His primary criticisms can be

summarized in three parts, which provide an overview of textualist and originalist criticisms of the

doctrine.

First, there is no foundation for the concept in the

language of the Constitution itself. Pharm. Research &

Mfrs. of Am. v. Walsh, 538 U.S. 644, 674-75 (2003)

(Scalia, J., concurring) (“[A]s I have explained elsewhere,

the negative Commerce Clause . . . [has] no foundation

in the text of the Constitution”); Wynne, 575 U.S. at

572 (Scalia, J., dissenting) (calling the dormant

Commerce Clause “a judicial fraud”). The Commerce

Clause empowers Congress to “regulate commerce . . .

among the several States.” U.S. Const. art. I, § 8, cl. 3.

To an originalist and textualist, the language of this

affirmative grant of power does not and cannot convey

a seemingly unlimited restriction on the regulatory

authority of states.

Second, today’s dormant Commerce Clause has

evolved far past its earlier manifestations and no longer

represents what was originally invoked. Id. (Scalia, J.,

dissenting) (“The negative Commerce Clause applied

today has little in common with the negative Commerce

Clause of the 19th century, except perhaps for incoherence”). Justice Thomas, an even stronger critic of the

doctrine, has called the doctrine “virtually unworkable,”

id. at 578 (Thomas, J., dissenting), and, echoing former

Justice Scalia’s originalism, has envisioned the “surprise

[of] those who penned and ratified the Constitution”

upon glimpsing “how far [the Court’s] negative

Commerce Clause jurisprudence has departed from

the actual Commerce Clause.” Id. at 579 (Thomas, J.,

dissenting).

Third, former Justice Scalia constantly warned

of the dangers of gratuitous judicial intrusion into

matters rightfully within the States’ domains. Id. at

572 (Scalia, J., dissenting) (characterizing the dormant

Commerce Clause as “a judge-invented rule under which

judges may set aside state laws that they think impose

too much of a burden upon interstate commerce”); Gen.

Motors Corp. v. Tracy, 519 U.S. 278, 312 (1997) (Scalia,

J., concurring) (again describing the doctrine as an

“unjustified judicial intervention not to be expanded

beyond its existing domain”). In a similar criticism

of the overreach of judicial authority into state affairs

when it comes to dormant Commerce Clause jurisprudence, in Tennessee Wine & Spirits Retailers Ass’n

v. Thomas, 139 S. Ct. 2449, 2484 (2019) (Gorsuch, J.,

and Thomas, J., dissenting), Justice Gorsuch remarked

that “the regulation of alcohol wasn’t left to the

imagination of a committee of nine sitting in

Washington, D.C., but to the judgment of the people

themselves and their local elected representatives.”

B. Petitioners’ Vision of a Sweeping Dormant

Commerce Clause Imperils the American

Institution of State Autonomy and Sovereignty Enshrined by the 10th Amendment.

Petitioners and their amici frame Proposition 12

as part of an existential socio-cultural struggle. On

the contrary, Proposition 12 instead represents the

constitutional and lawful exercise of a state’s police

power over consumptives sold within state borders in

a manner that reflects the State’s time-honored position

as a laboratory of democracy in our federalist system.

Such a state-based laboratory is precisely what

the founders envisioned when they crafted the Tenth

Amendment. As former Justice Brandeis famously

warned in New State Ice Co. v. Liebman, 285 U.S.

262, 311 (1932) (Brandeis, J., dissenting), “[t]o stay

experimentation in things social and economic is a

grave responsibility. Denial of the right to experiment

may be fraught with serious consequences to the

nation.” He further praised federalism by describing

how, in this system, “a single courageous state may, if

its citizens choose, serve as a laboratory . . . This Court

has the power to prevent an experiment. . . . But, in

the exercise of this high power, we must be ever on our

guard, lest we erect our prejudices into legal principles”

(emphasis added).

Petitioners argue that we ought to be concerned

about Balkanization, Pet’rs’ Br. 22, 24, 30. But this

strain of argument fails, for Balkanization can be

resolved by acts of Congress – and indeed this is precisely what the Constitution envisions in its Commerce

Clause when the Legislature is empowered to “regulate

commerce . . . among the several States.” U.S. Const.

art. I, § 8, cl. 3; Bendix Autolite Corp. v. Midwesco

Enterprises, Inc., 486 U.S. 888, 897 (1988) (Scalia, J.,

concurring) (“Weighing the governmental interests of

a State against the needs of interstate commerce is,

by contrast, a task squarely within the responsibility

of Congress, see U.S. Const., Art. I, § 8, cl. 3, and ‘ill

suited [sic] to the judicial function.’” (Citation omitted)).

However, in this case, Congress has elected to do nothing

on farm animal welfare, and with that choice, it has

invited the states to address that omission in the law.

What cannot be solved by acts of Congress, however, and what threatens the precious balance of state

and federal government far more than Proposition 12, is

the erosion of federalism by a turbocharged dormant

Commerce Clause.

II. THE APPROPRIATE JURISPRUDENTIAL TEST FOR

PROPOSITION 12 IS THE PIKE BALANCING TEST,

UNDER WHICH PROPOSITION 12 SURVIVES.

Should the Court conduct a full dormant Commerce

Clause analysis of Proposition 12 despite the absence

of textual support for the Clause, it should employ the

balancing test from the seminal Pike v. Bruce Church,

Inc., 397 U.S. 137, rather than the “extraterritoriality”

doctrine, borne from the Baldwin/Brown-Forman/Healy

line of cases. Baldwin, 294 U.S. 511; Brown-Forman,

476 U.S. 573; Healy, 491 U.S. 324 (plurality opinion).

A. The Proper Test Under Which to Analyze

This Factual Scenario Is Pike, Not BrownForman/Healy/Baldwin or the “Extraterritoriality” Doctrine.

This case offers the quintessential set of facts for

the Pike balancing test. Pike is the standard test for

state laws that concern public health (e.g., Nat’l Ass’n

of Optometrists & Opticians v. Harris, 682 F.3d 1144,

1154-55 (9th Cir. 2012) (upholding state law prohibiting opticians from selling prescription eyewear at optometrist and ophthalmologist locations); public health

in relation to animal agriculture (e.g., Mintz v. Baldwin,

289 U.S. 346, 349-50 (1933) (upholding state’s partial

ban on cattle importation to protect against contagious

disease)); and even ethical or philosophical preferences

– such as conservation (e.g., Minnesota v. Clover Leaf

Creamery Co., 449 U.S. 456, 461-62 (1981) (upholding

statute to reduce plastic)) and religious sentiment

(e.g., Hennington v. State of Georgia, 163 U.S. 299,

303-05 (1896) (upholding Georgia law banning freight

train running on the Christian Sabbath)).

In contrast, the extraterritoriality doctrine, as

exemplified by the Baldwin/Brown-Forman/Healy line

of cases, has been wielded to invalidate state laws that

either:

control or regulate out-of-state prices, or

tie in-state to out-of-state prices, whether

explicitly or by “‘inevitable effect,’” Pharm.

Research & Mfrs. of Am. v. Walsh, 538 U.S.

at 669 (quoting Pharm. Research and Mfrs.

v. Concannon, 249 F.3d 66, 81-82 (1st Cir.

2001)), or,

regulate commerce occurring wholly outside

state borders, or, have the “practical effect”

of doing so. Healy, 491 U.S. at 332.

This Court’s most recent decision addressing the

extraterritoriality doctrine only considered the first

manifestation and ignored the second. Indeed, in

Pharmaceutical Research & Manufacturers of America

v. Walsh, this Court stated that the Baldwin/BrownForman/Healy rule only concerns state legislation

that: 1) “regulate[s] the price of any out-of-state transaction, either by its express terms or by its inevitable

effect”; or 2) “t[ies] the price of [] in-state products to

out-of-state prices.” Pharm. Research & Mfrs. of Am.

v. Walsh, 538 U.S. at 669 (quoting Pharm. Research

and Mfrs. v. Concannon, 249 F.3d at 81-82). Justice

Gorsuch made the same observation in Energy and

Environment Legal Institute v. Epel (“EELI”) when

rejecting a dormant Commerce Clause challenge to a

Colorado renewable energy law. EELI, 793 F.3d 1169,

1173 (10th Cir. 2015).

Proposition 12, however, has no such “inevitable

effect” on extra-California prices, for two reasons.

First, careful and unbiased analysis by agricultural

economic experts makes mincemeat of petitioners’

and amici’s unsupported and conclusory arguments

that Proposition 12 will raise pork prices nationwide.

Agric. and Res. Econ. Professors’ Br. 5-6 (calling petitioners’ claims “flawed as a reflection of basic economic

incentives [and] factually implausible,” and stating

that implementation of Proposition 12 will raise prices

for Californian consumers but have “marginal” collateral

effect on out-of-state pork prices).

Second, a statute having the “inevitable effect” of

direct regulation of out-of-state prices and transactions

is qualitatively distinct from a statute that, while

directly regulating in-state transactions, has a collateral

and incidental effect on prices out of state. Many state

laws have collateral effects on economic activity elsewhere outside the state. Compare Ass’n for Accessible

Meds. v. Frosh, 887 F.3d 664, 674 (4th Cir. 2018) (holding

a Maryland statute directly regulating the prices of

out-of-state transactions invalid), cert. denied, 139 S.

Ct. 1168 (2019) with Pharm. Research & Mfrs. of Am.

v. Walsh, 538 U.S. 644, 669 (upholding Maine statute

providing regulations on drug pricing where state

regulated only with reference to in-state transactions,

even if there were collateral effects out of state).

1. The Broad Manifestation of the

Extraterritoriality Doctrine that

Prohibits Statutes Having the

“Practical Effect” of Regulating Outof-State Commerce Is Unworkable.

The “practical effect” dicta is unwieldy and unworkable in the modern age, where extraterritorial effects

are inevitable with a broad swath of legitimate state

expressions of their police powers.2 See, e.g., Brannon

P. Denning, Extraterritoriality and the Dormant

Commerce Clause: A Doctrinal Post-Mortem, 73 LA. L.

REV. 979, 998-99 (2013) (criticizing the Healy dicta for

a “lack of a limiting principle that would prevent it

from curtailing legitimate state regulatory power”);

Jack L. Goldsmith & Alan O. Sykes, The Internet and

the Dormant Commerce Clause, 110 YALE L.J. 785,

806 & n. 90 (2000) (describing the infamous Healy and

Edgar v. MITE Corp., 457 U.S. 624 (1982), extraterritoriality dicta as “overbroad”); Peter C. Felmly, Beyond

the Reach of States: The Dormant Commerce Clause,

Extraterritorial State Regulation, and the Concerns of

Federalism, 55 MAINE L. REV. 467, 514 (2003) (criticizing

the lower courts for failing to constrain the Healy dicta

and thereby invalidating state laws with only nominal

out-of-state effects – effects that are “inevitable” in the

modern age).

Former Justice Scalia also characterized the expansive extraterritoriality doctrine suggested by the

“practical effect” dicta in Healy’s majority opinion as

“dubious.” Healy, 491 U.S. at 345 (Scalia, J., dissenting).

“The difficulty with this [more expansive analysis],”

he wrote, “is that innumerable valid state laws affect

pricing decisions in other States . . . I do not think our

Commerce Clause jurisprudence should degenerate

into disputes over degree of economic effect.” Id.

2 Most legal academics in this arena believe this expansive

version of the extraterritoriality doctrine to either be already

obsolete law, or flawed law deserving of being overruled. Chad

DeVeaux, One Toke Too Far: The Demise of the Dormant

Commerce Clause’s Extraterritoriality Doctrine Threatens the

Marijuana-Legalization Experiment, 58 B.C. L. REV. 953, 959 n.

42 (2017) (reviewing the myriad academics taking this position).

But that is precisely what dormant Commerce

Clause jurisprudence will become should this Court

rely on Healy’s dicta – dicta that has been implicitly

and explicitly condemned by innumerable academics

and scholars. It will set the stage for a vast overreach

of federal judicial power into the affairs of the

individual States. As Justice Gorsuch commented in

EELI, “After all, if any state regulation that ‘control[s]

. . . conduct’ out of state is per se unconstitutional,

wouldn’t we have to strike down state health and

safety regulations that require out-of-state manufacturers to alter their designs or labels?” EELI, 793 F.3d

at 1175.

State legislation that could fall under such an

expansive and unlimited reading of the extraterritoriality doctrine include:

●

State laws imposing taxes on out-of-state

online purchases, upheld in South Dakota v.

Wayfair, Inc., 138 S. Ct. 2080, 2099 (2018)

(recognizing the “unsound” and “incorrect”

decision of Quill Corp. v. North Dakota, 504

U.S. 298 (1992) and overruling Quill);

●

State laws restricting the sale of alcoholic

beverages, such as Utah’s S.B. 132, which

sets a limit at 4.0% by weight and allows

only state-run stores to sell alcohol above

that, or Utah’s newest “clampdown” on

beverages that have commonly used flavor

additives containing “trace amounts” of ethyl

alcohol. Associated Press, Popular Hard

Seltzers to Be Scarcer in Utah Under New

Law, U.S. NEWS (Mar. 3, 2022), https://www.

usnews.com/news/business/articles/2022-03-

03/popular-hard-seltzers-to-be-scarcer-inutah-under-new-law.

●

State bans on the direct sale of cars from

manufacturers to consumers3;

●

Labelling laws and consumer protection laws,

see, e.g., Int’l Dairy Foods Ass’n v. Boggs, 622

F.3d 628, 649-50 (6th Cir. 2010) (holding that

Ohio’s dairy labelling law prohibiting labelling

milk products sold in Ohio as “No Hormones,”

“Hormone Free, “No Artificial Hormones,” etc.,

did not violate the dormant Commerce Clause

despite dairy industry’s arguments that the

law in effect imposed labelling requirements

nationally and the law was not supported by

science);

●

Milk expiration laws, such as that of Montana,

which requires that any milk sold in the

state be pasteurized within the previous 288

hours – which in effect prevents out-of-state

milk producers from being able to sell in state,

and which is substantially more stringent than

all other states’ laws. Yet it was upheld in

court when challenged for an undue burden

on commercial speech. Core-Mark Int’l, Inc.

v. Montana Bd. of Livestock, No. 15-35705,

2018 WL 5724046, *at 5 (D. Mont. Nov. 1,

2018).

3 See Gerald R. Bodisch, Economic Effects of State Bans on

Direct Manufacturer Sales to Car Buyers 1-2 U.S. Dep’t of Just.

(May 2009), https://www.justice.gov/sites/default/files/atr/legacy/

2009/05/28/246374.pdf.

2. In Any Case, Proposition 12 Does Not

Have the Effect of Regulating Outof-State Commerce.

Moreover, Proposition 12 does not have the practical effect of regulating out-of-state commerce. To

have such an effect means more than merely exerting

a collateral impact on consumers or products in other

states. For example, a host of state environmental

regulations affect consumers elsewhere, but they cannot

be said to regulate out-of-state commerce. MERRIAMWEBSTER defines “regulate” as “to govern or direct

according to rule.” Regulate, MERRIAM-WEBSTER, https:

//www.merriam-webster.com/dictionary/regulate (last

visited Aug. 9, 2022). California’s rule only applies to

sales taking place in the state, and nowhere else.

Businesses may choose to sell or not to sell Proposition

12-compliant pork in California.

Instead, when courts have found that state legislation has effectively created extraterritorial regulation,

the legislation in question has imposed a nearly literal

impediment to interstate commerce due to physical

constraints, unfeasibility, or impossibility because of

mutually exclusive state regulatory regimes. As the

Court explained in Healy, “The critical inquiry is

whether the practical effect of the regulation is to

control conduct beyond the boundaries of the State.”

Healy, 491 U.S. at 336 (emphasis added). It added that

in this inquiry the Court should “consider[] how the

challenged statute may interact with the legitimate

regulatory regimes of other States and what effect would

arise if not one, but many or every, State adopted

similar legislation.” Id.

For example, while it is properly considered to be

a primordial iteration of a Pike-esque balancing test

rather than as part of the Baldwin/Brown-Forman/

Healy line, the case Southern Pacific Co. v. Arizona,

325 U.S. 761, 775 (1945), is instructive in that the

Court used the term “practical effect” when striking

down an Arizona law regulating the length of train

cars. In 1945, between 93% to 95% of Arizona train

traffic was from other states. Id. at 771. Arizona’s law

would have required the dismantling and rebuilding

of all train cars when crossing into and out of Arizona.

In this way, the law would quite literally have impeded

the free flow of interstate commerce. Id. at 773. The

lower court had also found that not only was there

almost no evidence supporting the safety rationale for

the regulation, but that there was evidence that the

rule decreased safety on the railroad. Id. at 779.

Amici argue that should Proposition 12 stand,

any state will be empowered to regulate the industry

of another state. Nat’l Ass’n Mfrs. et al. Br. 19 (“If

California can assert legal control over out-of-state

meat production, then Indiana can do the same when

it comes to Kentucky’s e-cigarette manufacturers, and

North Dakota can regulate New York’s art transactions.”).

But the assertion that the survival of Proposition

12 will enable states to regulate one another is

predicated on a plainly flawed analogy. California is

not attempting to regulate the pork industry –

California is regulating pork products that are sold

within California. Likewise, Indiana can certainly

constitutionally regulate e-cigarettes being sold within

Indiana – even if it happened to impact e-cigarette

manufacturers residing in Kentucky – so long as it

was for a legitimate purpose (e.g., public health and

safety), and so long as it was not directly regulating

the minute details out-of-state operations. See Legato

Vapors, LLC v. Cook, 847 F.3d 825, 827 (7th Cir. 2017)

(striking down Indiana law that directly imposed strict

requirements on the specific “design and operation

of out-of-state production facilities, including requirements for sinks, cleaning products, and even the

details of contracts with outside security firms and

the qualifications of those firms’ personnel,” but also

clarifying that that “the Constitution leaves Indiana

ample authority to regulate in-state commerce in . . .

e-cigarettes . . . For example, the Act’s prohibitions on

sales to minors, its requirements for child-proof

packaging, ingredient labeling, and purity . . . pose no

inherent constitutional problems”).

Unlike Indiana in Legato, California does not

require certain specific facilities, manufacturing processes, cleaning plans, security, contract decisions,

etcetera. California merely requires that, for a sow’s

offspring’s meat to be sold in California, the sow must

be afforded a minimally humane space in which to spend

virtually her entire life. Proposition 12 also does not

require a certain method of housing through which to

achieve this minimum space. How a producer does so

is entirely up to the individual pork producer: they

have their choice of methods, equipment, facilities,

design, cleaning processes, contractual arrangements,

and more.

In sum, to apply petitioners’ over-expansive vision

of the Baldwin/Brown-Forman/Healy line of cases to

Proposition 12 would be to fundamentally change that

strain of jurisprudence. No longer would the extraterritoriality principle represent, as Justice Gorsuch has

described, the “most dormant” of dormant Commerce

Clause doctrines. EELI, 793 F.3d at 1172.

A. Contrary to Petitioners’ Claims, Proposition 12 Has Multiple Legitimate Purposes

in Addition to Humane Concerns.

From its inception, the plain language of Proposition 12 offered multiple rationales for its enactment.

Section 2 of the text of the proposed law makes explicit

that the aim of the act “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.” Prop. 12, § 2; codified at

Cal. Health & Safety Code § 25990 et seq. (Emphasis

added.)

Because California ballot initiatives like Proposition 12 are placed on the state ballot through direct

voter initiative rather than the legislative process, there

is no legislative history. But just as legislative history

informs us of legislators’ intent, the Californian Official

Voter Information Guide – drafted by the State

Attorney General, the Legislature, and the Legislative

Analyst’s Office – offers insight into voters’ minds

when they cast their ballots for Proposition 12.

According to Californian case law, for the purposes of

statutory construction, voter intent has the same role

as legislative intent, when it comes to initiatives. Pro.

Engineers in California Gov’t v. Kempton, 155 P.3d

226, 239 (Cal. 2007). And courts look not only to the plain

language of the initiative, but also ballot materials

such as ballot summaries and arguments like those

present here. People v. Superior Ct. (Pearson), 227

P.3d 858, 862 (Cal. 2010).

The brief Quick-Reference Guide to Proposition

12 dedicates equal space to the two primary rationales

for Proposition 12: the consumption of products from

animals treated humanely, and food safety for consumers. Cal. Sec’y of State, Voter Information Guide

70 (2018), https://vig.cdn.sos.ca.gov/2018/general/pdf/

complete-vig.pdf.

The portion of the Voter Information Guide that

supplies more extensive arguments for and against

each proposition4 included a third rationale. In this

section, each of the three purposes was again described

with equally large paragraphs of text. First, the aim

of the law is to “prevent cruelty to animals.” Id. at 70.

Second, to “protect our families from food poisoning.” Id.

Third, to “help family farmers” and create job growth.

Id.

1. Food Safety and Public Health

Concerns are the Quintessential

Legitimate State Interests Under

Pike and Its Progeny.

While petitioners show disdain for the health and

safety interests of California and Californians, those

very concerns have long been quintessential ‘legitimate

state interests’ in dormant Commerce Clause jurisprudence. Indeed, there is such a strong tradition of

these police powers exemplifying valid state interests

under Commerce Clause and Pike analyses that they

are treated with a presumption of legitimacy and subject

to a test akin to rational basis (i.e., a minimum level

of scrutiny). See Bibb v. Navajo Freight Lines, Inc., 359

U.S. 520, 524 (1959) (“[Laws that are] safety measures

carry a strong presumption of validity when challenged

4 This portion is composed of submissions from the stakeholders

for and against Proposition 12, rather than from the State.

in court. . . . Policy decisions are for the state legislature,

absent federal entry into the field.”)

Petitioners and their amici pejoratively frame

Proposition 12 as a “moral crusade,” Pac. Legal Found.

Br. 4, 15, and as mere “philosophical preferences,”

Pet. Br. 5. But such hyperbolic language ignores a

central truism of law-making: most laws are at their

core an expression of substantive political, moral,

societal, cultural, or philosophical preferences. Even

the most evidence-driven statutes, like vehicle or food

safety laws, are still an implicit articulation of a

philosophical preference: namely, the value of life, and

the acceptable degrees of risk to life. In this way, statutes

are often borne from moral, ethical, and philosophical

preferences – and the choice of these preferences

is properly within the purview of a state’s citizens,

rather than international or domestic corporations or

this Court. See Julian N. Eule, Laying the Dormant

Commerce Clause to Rest, 91 YALE L.J. 425, 442 n.89

(1982) (“the choice between competing substantive

political values must be made by representatives of

the people rather than by unelected judges”).

States began formulating animal anti-cruelty

laws hundreds of years ago, and these laws are now part

of the fabric of state governance. They address countless

concerns, including malicious cruelty, dogfighting

and cockfighting, puppy mills, wildlife trafficking,

farm animal welfare, and more. However, there are no

federal animal welfare standards for the care of

animals on the farm, leaving the matter entirely to

the states to address the type of animal products they

want to have in stores and eaten by their citizens.

B. California’s Interest in Public Health and

Consumer Safety Is Rationally Tied to

Proposition 12.

California’s public health and consumer safety

rationales for Proposition 12 are legitimate and wellfounded. For example, close confinement of livestock,

like that common on modern industrial farms and

exemplified by gestation crates, necessitates the use

of prophylactic antibiotics. Melinda Wenner Moyer,

How Drug-Resistant Bacteria Travel from the Farm to

Your Table, SCIENTIFIC AMERICAN (Dec. 1, 2016). The

widespread use of antibiotics in farmed animals is a

significant driver of antibiotic resistance in the United

States. Id. These livestock operations become hyperactive breeding grounds for antibiotic-resistant pathogens which, in turn, can infect people through 1) the

consumption of the infected livestock tissues, and 2)

through waste from infected livestock entering the water

supply, which is then used to water crops that are

shipped to and eaten by consumers across the nation.

Ctrs. for Disease Control and Prevention, Antibiotic

Resistance Threats in the United States 28 (2019),

https://www.cdc.gov/drugresistance/pdf/threatsreport/2019-ar-threats-report-508.pdf.

Antibiotic resistance is considered an “urgent . . .

public health threat,” with the CDC estimating that

antibiotic-resistant pathogens infect more than 2.8

million Americans, and kill more than 35,000 Americans,

each year. About Antimicrobial Resistance, Ctrs. for

Disease Control and Prevention, https://www.cdc.gov/

drugresistance/about.html (last visited July 12, 2022).

While the FDA released voluntary “guidelines” a

decade ago discouraging the use of antibiotics for

growth promotion, they are still regularly overused in

industrial animal agriculture for “disease prevention

and control” – i.e., prophylactic use. Moyer, supra p.

22. And while antibiotic use in American poultry and

cattle has declined in recent years, attempts to

discourage the widespread use of antibiotics in the pork

industry have not been effective: use in swine has been

trending upwards. Chris Dall, FDA Reports Another

Rise in Antibiotic Sales for Livestock, University of

Minnesota Center for Infectious Disease Research and

Policy (Dec. 16, 2020), https://www.cidrap.umn.edu/

news-perspective/2020/12/fda-reports-another-riseantibiotic-sales-livestock. Indeed, the farmer who was

awarded the 2015 “America’s Pig Farmer of the Year”

by the NPPC commented, “I think you’ll find [mass

use of antibiotics] relatively normal in the industry.”

Id.

Furthermore, there is scientific evidence published

by USDA researchers that concludes that the pathogens

found from animals at sow and nursery farms statistically had much more antibiotic resistance than did

those found at finisher farms (where pigs are brought

to grow to slaughter weight). John P. Brooks et al.,

Microbial Ecology, Bacterial Pathogens, and Antibiotic

Resistant Genes in Swine Manure Wastewater as

Influenced by Three Swine Management Systems, 57

WATER RESEARCH 96 (2014). This was related to the fact

that sow and nursery farms had the highest antibiotic

use – likely due to the extremely close confinement,

unsanitary conditions, and concomitant poor health of

the animals. John P. Brooks & M.R. McLaughlin,

Antibiotic Resistant Bacterial Profiles of Anaerobic

Swine Lagoon Effluent, 38 JOURNAL OF ENVIRONMENTAL

QUALITY 2431 (2009). The young pigs gestating in and

nursing from sows crawling with various strains

antibiotic-resistant pathogens likely become infected

with those same pathogens. Thus, it stands to reason

that attempts to enhance the living conditions of sows,

and improving their health overall, will lead to less

antibiotic resistance in not only the sows but also in

their offspring – offspring that end up on a Californian’s

dinner plate.

In May of 2021, the California Department of Food

and Agriculture (CDFA) published the first formal

draft regulations to implement Proposition 12. Pet.

App. 47a et seq. The CDFA conducted a standardized

regulatory impact analysis (SRIA) of the proposed

regulations. While in the Initial Statement of Reasons

accompanying the SRIA, the CDFA stated that “the

law was not primarily written with the concern or

benefit of human food-borne illness, worker safety

. . . etc.,” Pet. App. 76a, the CDFA soon revised its

proposed regulations, stating, “[t]he Department

recognizes that text of the Proposition 12 ballot

initiative, as approved by voters . . . stated that the

initiative’s purpose was ‘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.’” Pet. Reply App. 74a.

C. Petitioners and Their Amici Fundamentally Misrepresent the Economic Impacts

of Proposition 12.

As discussed above, a neutral amicus brief filed in

this action describes the petitioners’ economic arguments as “fundamentally flawed” and “factually

implausible.” Agric. and Res. Econ. Professors’ Br. 1,

5, 24.

Part of the reason for this is that the industry has

already been switching to gestation crate-free housing.

Californian voters acted in a manner consistent with

the affirmative corporate pledges of the biggest food

retailers in the nation. Many companies have promised

their consumers that they will forbid sourcing pork or

eggs from operations that confine the sows or hens in

extreme ways. See infra pp. 27-28.

In 2013, Smithfield, the largest pork supplier

to the United States’ domestic market, announced

that nearly forty percent of sows in the company’s

United States-based farms were group-housed. Katie

Doherty, Smithfield: on Track for Crate-Free Sows by ’17,

ARKANSAS DEMOCRAT GAZETTE (Jan. 2013).

By 2014, the number of Smithfield sows out of

crates had risen above fifty percent, and Smithfield

was asking its contract farmers to do the same.

Smithfield Foods Recommends Its Contract Growers

Convert to Group Housing for Pregnant Sows, Globe

Newswire (Jan. 7, 2014), https://www.globenewswire.

com/news-release/2014/01/07/600779/10063123/en/

Smithfield-Foods-Recommends-Its-Contract-GrowersConvert-to-Group-Housing-for-Pregnant-Sows.html.

Both Smithfield and Hormel Foods aim to end the

use of gestation crates. See Doherty, supra pp. 25-26.

Tyson Foods stated that as of December 2018, over

half of all sows on farms supplying to Tyson were

group-housed, “and [they] expect this number to grow.”

Sow Housing, Tyson Foods, https://www.tysonfoods.

com/news/viewpoints/sow-housing (last visited Aug. 9,

2022).

The pork industry has been supplying gestationcrate free pork to the market for years, due to corporate

and consumer buyers’ demand for it. Indeed, it is

“relatively straightforward,” according to the farmers

and processors themselves: in a recent veterinarian

report released by the CDFA, “farmers and processors

. . . told [the veterinarian] that tracing pigs throughout the pig production cycle is relatively straightforward because farmers 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).” Dr. Elizabeth Cox,

Lessons About Proposition 12 from Recent Pork

Producer Visits, Cal. Dep’t of Food and Agric. Animal

Care Program 2 (July 2022), https://www.cdfa.ca.gov/

AHFSS/pdfs/prop-12_pork_producer_visits.pdf.

This echoes the assurances that the President

and CEO of Tyson Foods, Donnie King, emphatically

gave to investors and stakeholders in 2021: “Tyson is

currently aligning incentivizing suppliers where appropriate. We can do multiple programs simultaneously,

including Prop 12 . . . we can certainly provide the raw

material to service our customers in that way.” Tyson

Foods, Tyson Foods Third Quarter 2021 Earnings

August 9, 2021 at 9:00 a.m. Eastern 15 (Aug. 9, 2021),

https://s22.q4cdn.com/104708849/files/doc_financials/

2021/q3/08-11-21_Tyson-Foods-080921.pdf.

These “premium pork products” mentioned above

by farmers and processors are in high demand because,

long before Proposition 12 came to any ballot, many of

the biggest corporate buyers of pork publicly stated

their intent to only use pork from sows housed outside

gestation crates. This includes:

●

McDonald’s5

●

Walmart6

●

Hormel Foods7

●

Burger King8

●

Safeway9

●

Wendy’s10

●

Kroger11

●

Stop & Shop12

●

Target13

5 Stephanie Strom, McDonald’s Set to Phase Out Suppliers’ Use

of Sow Crates, NEW YORK TIMES (Feb. 13, 2012).

6 Animal Welfare, Walmart (April 21, 2022), https://corporate.

walmart.com/esgreport/esg-issues/animal-welfare.

7 Hormel Foods Company Information About California Proposition

12, Hormel Foods, https://www.hormelfoods.com/newsroom/news/

hormel-foods-company-information-about-california-proposition12/ (last visited Aug. 4, 2022).

8 Tim Carman, Pork Industry Gives Sows Room to Move, THE

WASHINGTON POST (May 29, 2012).

9 Id.

10 Id.

11 Animal Welfare Policy, Kroger Co. (Aug. 2021), https://www.

thekrogerco.com/wp-content/uploads/2018/07/The-Kroger-Co_

AnimalWelfarePolicy_2018-July.pdf.

12 Farm Animal Welfare Policy, Stop & Shop, https://stopandshop.

com/pages/farm-animal-welfare-policy/ (last visited Aug. 4, 2022).

13 Food Animal Welfare Commitments, Target, https://corporate.

target.com/sustainability-ESG/environment/animal-welfare/foodanimal-welfare (last visited Aug. 4, 2022).

●

ConAgra14

●

Denny’s15

The fatal inconsistency in petitioners’ position is

laid bare by the following: when grocery chain and big

box corporations demand that only gestation cratefree pork may be sold in their stores, the industry

willingly and voluntarily responds by making the

necessary shifts in production to maintain supply, yet

when a duly elected state legislature acting on the votes

of its citizens enacts the same standards, petitioners

come before this Court claiming that providing the

state with compliant pork will cause the collapse of the

national pork supply chain. If pork producers can supply

crate-free pork to tens of thousands of McDonald’s

outlets – to say nothing of the dozens of other companies

across the nation with tens of thousands of their own

outlets – then it can supply California’s market. Here,

the industry’s argument quickly falls like a hypocritical

house of cards.

Petitioners have also failed to offer any unbiased

expert-backed analyses to support their economic

catastrophizing. Conclusory references to one’s own

virtually unsupported16 allegations in one’s own com-

14 Conagra Brands: Frequently Asked Questions, ConAgra,

https://www.conagrabrands.com/frequently-asked-questions

(last visited Aug. 4, 2022).

15 Carman, supra note 8.

16 The only economic expert cited by petitioners spent three years

in academia and has since been employed by petitioners in some

capacity. Pet. App. 341a. He bases his conclusions on “observation”

and a few sources, rather than the extensive analysis demonstrated

in Agric. and Res. Econ. Professors’ Br., and errs in the 13% estimate

plaint do not provide sufficient support for their prophesies. And tellingly, one expert that amici cite,

Hanbin Lee, at State Pork Producer Ass’ns et al. Br.

21, is done so in the carefully wrought vacuum that

was needed as Hanbin Lee is one of the expert

academics whose research concludes that Proposition

12 will have only a marginal effect on the pork market

outside California. E.g., Hanbin Lee, Richard J. Sexton,

& Daniel A. Sumner, Economics of Mandates on Farm

Practices: Lessons from Regulation of Pork Sold in

California, UC Davis Agric. Workshop (Oct. 6, 2020),

https://arefiles.ucdavis.edu/uploads/filer_public/7f/7c/

7f7ca688-97724b3aaa871d9880a0b1ab/pork_ag_econ_

workshop_hanbin_lee.pdf (demonstrating that most

pork producers will not enter the Proposition 12compliant market; a significant quantity of domestic

pork is in products not covered by Proposition 12; and

the impact of Proposition 12 on consumers outside of

California is negligible). Petitioners’ amici purposely

avoid Lee’s ultimate findings by citing to a cherrypicked sentence, disregarding his conclusions. State

Pork Producer Ass’ns et al. Br. 21.

Furthermore, this Court has emphasized that the

dormant Commerce Clause protects interstate commerce, not interstate commercial firms. Exxon Corp.

v. Governor of Maryland, 437 U.S. 117, 127-28 (1978)

(holding that, despite the Maryland statute’s burden

falling entirely on interstate firms, with no local

producers or refiners, that the statute does not violate

the dormant Commerce Clause).

of California’s share of demand due to failure to account for

exported product, see Agric. and Res. Econ. Professors’ Br. 9 & n.9.

At worst, Proposition 12 may incidentally burden

some – but certainly not all – interstate commercial

entities; specifically, those that house their breeding

sows in extremely small and inhumane gestation crates.

A number of large companies, however, are already in

compliance with Proposition 12, and can easily begin

supplying California with product.

For example, the pork sold by Niman Ranch, a

firm that gets pork product from over 750 family farms

across the nation, is already compliant with Proposition

12. Frequently Asked Questions, Niman Ranch, https:

//www.nimanranch.com/faq/ (last visited Aug. 9, 2022).

So is the pork sold by large producer duBreton

and its subsidiary North Country Smokehouse, as

well as countless other farms and producers across the

nation (“a massive shift”). Making Prop 12 Compliant

Pork Accessible, PR NEWS WIRE (Sept. 20, 2021), https:

//www.prnewswire.com/news-releases/making-prop12-compliant-pork-accessible-301380630.html.

While petitioners attempt to paint a picture of

struggling Midwest family farmers burdened by the

alleged increased costs of raising Proposition 12compliant pigs, in reality, giant conglomerates own

and control most pork production in the United States.17

What’s more, some of the biggest conglomerates in

domestic pork production are foreign-owned.

17 In 2012, only 5% of the hog and pig operations by number held

68% of the inventory; in other words, a very small number of

large corporate industrial farms controlled over two-thirds of

swine production. And that trend of corporate consolidation has

been growing for decades. USDA Nat’l Agric. Stat. Serv., U.S.

Hog Industry 3 (Mar. 2016) https://www.nass.usda.gov/Publications/

Highlights/2016/HogIndustryHighlights_No2016-1.pdf.

Smithfield Foods – the owner of one in four hogs

in the United States – is a wholly owned subsidiary of

WH Group, a Chinese billionaire’s company. Jennifer

Wang, The Chinese Billionaire Whose Company Owns

Troubled Pork Processor Smithfield Foods, FORBES

(Apr. 16, 2020).

Another top producer in the United States is JBS

USA, which despite its name is a wholly owned

subsidiary of a Brazilian company. About Our Company,

JBS USA, https://sustainability.jbssa.com/chapters/

who-we-are/about-our-company/ (last visited July 28,

2022) (“JBS USA Pork is the second-largest fresh pork

producer in the U.S. . . .”).

This Court should not invalidate Proposition 12

to benefit foreign-owned corporations that are at the

helm of the pork industry: such a decision cannot

possibly be in line with the true purpose of the

dormant Commerce Clause doctrine.

Lastly, not only is Proposition 12’s true economic

impact far less than petitioners portray it to be, its

qualitative effect on interstate commerce is also

distinguishable from that of laws struck down under

the dormant Commerce Clause.

For example, often when the Court finds that one

state’s law is a substantial impediment to interstate

commerce, the case involves laws that are completely

anathema to cross-nation commercial activity. See,

e.g., discussion of So. Pac. Co. v. Arizona, 325 U.S. 761

supra p. 17; Bibb, 359 U.S. 520, 529 (holding that

Illinois law requiring trucks to have unique mudguard

unconstitutional because it would paralyze the travel

of goods across country); Raymond Motor Transp.,

Inc. v. Rice, 434 U.S. 429, 446-57 (1978) (holding that

a Wisconsin law banning trucks over fifty-five feet

long on state highways unconstitutional due to the

state’s failure to produce any evidence supporting its

safety rationale and experts’ adverse opinions as well

as extreme impact on nationwide interstate freight

transport); but cf. Int’l Dairy Foods Ass’n v. Boggs, 622

F.3d 628, 649-50 (holding that Ohio’s dairy labelling

law prohibiting labelling milk products sold in Ohio

as “No Hormones,” “Hormone Free, “No Artificial

Hormones,” etc., did not violate the dormant Commerce

Clause despite dairy industry’s argument that it, in

effect, imposed Ohio labelling regulations across the

country and created barriers in the free flow of interstate commerce).

In this way, laws on the in-state sale or labelling

of products impact interstate commerce in a qualitatively and quantitatively different manner than laws

that require the use of different vehicles or equipment

upon crossing state borders. Proposition 12 is analogous

to the Ohio dairy labelling law of Boggs: it may be

annoying for a corporation to comply, because products

sold in California may need to be separated from those

sold elsewhere, but the corporation can choose to sell

in California or not. (And, as discussed above, plenty

of suppliers already segregate different types of pork.)

The freights of Southern Pacific Co. v. Arizona that

are bound by the national railway system, however,

cannot choose to grow wings to avoid crossing into a

particular state to meet its demands. Nor can the

trucks of Raymond Motor Transportation grow and

shrink according to which state they enter along the

Interstate Highway System during their lengthy

journeys. But pork producers can segregate premium,

organic, humane, pasture-raised, or Proposition 12-

compliant pork from other pork, as labels in grocery

stores amply demonstrate, and producers can also

choose where they peddle their products.

In sum, should this Court create a new standard

by which dormant Commerce Clause cases are judged

and, moreover, assign more weight to expert-negated

claims than to direct analyses from experts themselves,

then this Court will expand the dormant Commerce

Clause’s power far beyond its current prudential

borders. Should that happen, this Court must then

anticipate a slew of dormant Commerce clause challenges to a host of current state laws that have welldocumented adverse out-of-state economic impacts, such

as anti-immigration laws, public health laws, consumer

and public safety laws, reproductive health laws,

labelling laws, and many, many more.

CONCLUSION

The judgment of the Ninth Circuit should be

upheld.

Respectfully submitted,

JESSICA L. BLOME

COUNSEL OF RECORD

GREENFIRE LAW, P.C.

P.O. BOX 8055

BERKELEY, CA 94710

(510) 900-9502

JBLOME@GREENFIRELAW.COM

SCOTT EDWARDS

KATHRYN SCHULTZ

THE CENTER FOR A HUMANE ECONOMY

P.O. BOX 30845

BETHESDA, MD 20824

ANIMAL WELLNESS ACTION

611 PENNSYLVANIA AVE. S.E. #136

WASHINGTON, DC 20003

COUNSEL FOR AMICI CURIAE

AUGUST 12, 2022

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.