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 15, 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, et al.,

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 FOR AMICI CURIAE ANIMAL

PROTECTION ORGANIZATIONS AND LAW

PROFESSORS IN SUPPORT OF RESPONDENTS

AND RESPONDENTS-INTERVENORS

---------------------------------♦--------------------------------REBECCA L. GARVERMAN

Clinical Fellow

HARVARD ANIMAL LAW

AND POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

rgarverman@law.harvard.edu

KATHERINE A. MEYER

Counsel of Record

Director

HARVARD ANIMAL LAW

AND POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

I.

INTRODUCTION ......................................

5

II. THE PORK PRODUCERS HAVE FAILED

TO STATE A PLAUSIBLE COMMERCE

CLAUSE CLAIM .......................................

6

III.

PROPOSITION 12 FURTHERS IMPORTANT PUBLIC BENEFITS FOR CALIFORNIA RESIDENTS ............................... 10

A. Pigs Are Complex, Social Animals Who

Display a Range of Behaviors and

Emotions .............................................. 11

B. The Confinement Practices Prohibited

by Proposition 12 Are Cruel, Inhumane, and Abusive .............................. 16

C. Proposition 12 Requires More Humane

Alternatives to These Cruel Confinement Systems for Pork Products Sold

in California ........................................ 36

IV.

THE LOCAL BENEFITS TO CALIFORNIANS ARE SUBSTANTIAL .................... 39

V.

THE STATES SHOULD BE PERMITTED

TO REGULATE IN THIS AREA ............... 46

ii

TABLE OF AUTHORITIES

Page

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009) .................. 4, 8, 9

Ass’n des Éleveurs de Canards et d’Oies du Quebec v. Bonta, 33 F.4th 1107 (9th Cir. 2022) .............41

Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013) .............41

Baldwin v. G.A.F. Seelig Inc., 294 U.S. 511 (1935)........ 40

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) ....... 40

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ... 4, 6, 8

Cavel Int’l, Inc. v. Madigan, 500 F.3d 551 (7th

Cir. 2007) .................................................................40

Chinatown Neighborhood Ass’n v. Harris, 794

F.3d 1136 (9th Cir. 2015) .........................................41

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ..................................40

Dobbs v. Jackson Women’s Health Org., 142

S. Ct. 2228 (2022) ....................................................39

Hughes v. Oklahoma, 441 U.S. 322 (1979) .................40

Meyer v. Nebraska, 262 U.S. 390 (1923) .......................7

Pa. Soc’y for the Prevention of Cruelty to Animals

v. Bravo Enters., 237 A. 2d 342 (Pa. 1968) ..............42

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).... passim

Rocky Mountain Farmers Union v. Corey, 913

F.3d 940 (9th Cir. 2019) ...........................................41

State v. Porter, 16 S.E. 915 (N.C. 1893) ......................42

iii

TABLE OF AUTHORITIES—Continued

Page

Trs. of Indiana Univ. v. Curry, 918 F.3d 537 (7th

Cir. 2019) .................................................................45

United States v. Lopez, 514 U.S. 549 (1995) ......... 40, 41

United States v. Stevens, 559 U.S. 460 (2010) ............41

Waters v. People, 46 P. 112 (Colo. 1896) ......................42

CONSTITUTIONAL PROVISIONS

Fla. Const. art. X, § 21 ................................................47

STATUTES

2008 O.J. L 47, art. 3, ¶ 4 ............................................36

Ariz. Rev. Stat. Ann. § 13-2910.07 (2006)...................47

Cal. Health & Safety Code § 25990.............. 3, 5, 35, 43

Cal. Health & Safety Code § 25991(e) ..................... 5, 7

Colo. Rev. Stat. § 35-21-203 (2020) .............................46

Colo. Rev. Stat. § 35-50.5-102 (2008) ..........................46

Mass. Gen. Laws ch. 129 App., §§ 1-2–1-3 (2016) ....... 47

Me. Rev. Stat. tit. 7, § 4020 (2009) ..............................47

Mich. Comp. Laws § 287.746 (2009)...........................46

Or. Rev. Stat. § 600.150 (2007) ...................................46

Or. Rev. Stat. § 632.835–850 (2019) ...........................46

iv

TABLE OF AUTHORITIES—Continued

Page

Ordonnance sur la Protection des Animaux

[Animal Protection Ordinance], Apr. 23, 2008,

SR 455, RS 455, art. 48 (Switz.)..............................36

R.I. Gen. Laws § 4-1.1-3 (2012) ..................................47

OTHER AUTHORITIES

A. Stolba & D. Wood-Gush, The Behaviour of

Pigs in a Semi-Natural Environment, 48 Animal Sci. 419 (1989) ............................................ 12, 13

Animal Legal Defense Fund, Investigation Reveals Cruelty and Neglect at Hormel Foods’

Pig Supplier, YouTube (May 25, 2016) https://

www.youtube.com/watch?v=z5VitkAhM7Y ............28

Claire Priest, Enforcing Sympathy: Animal Cruelty Doctrine After the Civil War, 44 Law &

Soc. Inquiry 136 (2019) ...........................................42

Creek Valley Critters, Pigs Playing, YouTube

Oct. 17, 2016), https://www.youtube.com/watch

?v=2lTZt1xaErQ ......................................................13

D.M. Broom, Stereotypies and Responsiveness

as Welfare Indicators in Stall-Housed Sows

(Brit. Soc’y Animal Prod., Paper No. 19, 1986)..... 34, 38

D.M. Broom et al., A Comparison of the Welfare

of Sows in Different Housing Conditions, 61

Animal Sci. 369 (1995) ...................................... 25, 38

Dale Miller, Turnaround Stall Worth a Second

Look, National Hog Farmer (Mar. 15, 2009) ..........36

v

TABLE OF AUTHORITIES—Continued

Page

Elodie F. Briefer et al., Classification of Pig Calls

Produced From Birth to Slaughter According

to Their Emotional Valence and Context of

Product, 12 Sci. Reps. 3409 (2022)..........................11

Facts on Veal Calves, Humane Soc’y Veterinary

Med. Ass’n, https://www.hsvma.org/facts_veal_

calves#.YunKiS1h1n5 (last visited Aug. 2,

2022) ........................................................................35

Farm Forward, The Dirt on Humane Washing

(2020) .......................................................................43

Fingertip Facts on Education in California, Cal.

Dep’t of Educ. (Mar. 30, 2022), https://www.

cde.ca.gov/ds/ad/ceffingertipfacts.asp .....................45

Friends of the Earth, The State of School Lunch

in California (Mar. 2021) ........................................44

Gudrun Illmann et al., Acoustical Mother-Offspring Recognition in Pigs (Sus scrofa domesticus), 139 Behaviour 487 (2002) ............................11

Humane Soc’y Veterinary Med. Ass’n, HSVMA

Veterinary Report: Welfare Concerns Associated with Intensive Farm Animal Confinement

Methods (n.d.) .................................................. passim

Inonge Reimert et al., Emotions on the Loose:

Emotional Contagion and the Role of Oxytocin

in Pigs, 18 Animal Cognition 517 (2015)................14

Iowa Investigation: Hawkeye Sow Centers (Hormel Supplier), Animal Outlook, https://animaloutlook.org/investigations/iowa-pigs/ (last

visited Aug. 4, 2022) .................................... 16, 17, 25

vi

TABLE OF AUTHORITIES—Continued

Page

J.H. Smith et al., The Preference of Pigs for Fresh

Air Over Ammoniated Air, 49 Applied Animal

Behav. Sci. 417 (1996) .............................................21

J.P. Tillon & F. Madec, Diseases Affecting Confined Sows: Data from Epidemiological Observations, 15 Annales de Recherches Vétérinaires

195 (1984) ................................................................21

Jeremy N. Marchant & Donald M. Broom, Effect

of Dry Sow Housing Conditions on Muscle

Weight and Bone Strength, 62 Animal Sci. 105

(1996) .......................................................................30

Jeremy N. Marchant-Forde, The Welfare of Pigs

(2009) .......................................................................38

Jeremy N. Marchant-Forde, USDA Sow Welfare

Fact Sheet (2010) ............................................. passim

John J. McGlone, Review: Updated Scientific Evidence on the Welfare of Gestating Sows Kept

in Different Housing Systems, 29, Pro. Animal

Sci. 189 (2013) .........................................................31

John Webster, Animal Welfare: A Cool Eye Towards Eden (1995) ..................................................19

John Webster, Animal Welfare: Limping Towards Eden (2008) ..................................................39

Kristina Horback, Nosing Around: Play in Pigs,

2 Animal Behav. & Cognition 186 (2014) ...............12

vii

TABLE OF AUTHORITIES—Continued

Page

Leena Anil et al., Evaluation of The Relationship Between Injuries and Size of Gestation

Stalls Relative to Size of Sows, 221 J. Am. Veterinary Med. Ass’n 834 (2002) .............. 26, 28, 29, 30

Liu et al., A Comparison of the Behavior, Physiology, and Offspring Resilience of Gestating

Sows When Raised in a Group Housing System and Individual Stalls, 11 Animals 2076

(2021) ................................................................. 31, 34

Lori Marino & Christina M. Colvin, Thinking

Pigs: A Comparative Review of Cognition,

Emotion, and Personality in Sus domesticus,

28 Int’l J. Compar. Psych. (2015) ................ 11, 12, 14

Matthew Prescott, Your Pig Almost Certainly

Came from a Factory Farm, No Matter What

Anyone Tells You, Wash. Post (July 15, 2014) ........15

Our Supply Partners, West Coast Prime Meats,

https://westcoastprimemeats.com/wholesalepartners/ (last visited Aug. 2, 2022) .......................44

Pew Comm’n on Indus. Farm Animal Prot., Putting Meat on the Table: Industrial Farm Animal Production in America (2008) .........................22

Press Release, The Humane Soc’y of the U.S.,

The Humane Society of the United States Sues

World’s Largest Pork Producer for Misleading

Consumers (Oct. 18, 2021) ......................................33

Purchase of Locally Produced Foods, Cal. Dep’t

of Educ. (June 16, 2021), https://www.cde.ca.

gov/ls/nu/sn/mbcnp062018.asp ...............................45

viii

TABLE OF AUTHORITIES—Continued

Page

Richard Lutwyche, The Pig: A Natural History

(2019) ................................................................. 12, 13

Sci. Veterinary Comm., The Welfare of Intensively Kept Pigs (Sept. 30, 1997) .............................34

Secretary of State Alex Padilla, Statement of

Vote (Nov. 6, 2018) .....................................................5

The Harris Poll, Majority of Pork Buyers Show

Concern for Pig Welfare, Survey Shows (2020) ......43

The Humane Soc’y of the U.S., An HSUS Report:

Welfare Issues with Gestation Crates for Pregnant Sows (2013) ............................................... 25, 37

The Humane Soc’y of the U.S., Scientists and

Experts on Gestation Crates and Sow Welfare

(2012) ................................................................. 22, 23

UCSF Med. Ctr. Nutrition & Food Servs.,

UCSF Sustainable Foodservice: Annual Report (2013) ...............................................................45

World Organisation for Animal Health, Terrestrial Animal Health Code, ch.7.13.12 (2021) ..........37

Yuzo Koketzu & Ryosuke Iida, Farm Data Analysis for Lifetime Performance Components of

Sows and Their Predictors in Breeding Herds,

6 Porcine Health Mgmt. 1 (2020)............................18

REGULATIONS

9 C.F.R. § 317.2(c)(3) (2021) .................................. 43, 44

Ariz. Admin. Code R3-2-907 (2022) ............................47

ix

TABLE OF AUTHORITIES—Continued

Page

Farmed Animals Regulations 2007, SI 2007/2078,

sch. 8, ¶ 5 (Eng.) ......................................................35

The Welfare of Farmed Animals Regulations

2010, SI 2010/388, sch. 6 pt. 2, ¶ 5 (Scot.) ..............36

1

INTERESTS OF AMICI CURIAE1

Amici Curiae are a coalition of non-profit organizations and law school academics with longstanding

interests in preventing animal cruelty and promoting

humane treatment of farmed animals.

The San Francisco Society for the Prevention of

Cruelty to Animals (“SF SPCA”) is a non-profit animal

shelter offering protection to animals in need. SF

SPCA is the first cageless animal shelter in the U.S.,

with programs reaching 250,000 Californians each

year.

The San Diego Humane Society is a non-profit animal shelter dedicated to creating a more humane

world by advancing animal welfare. With five campuses in San Diego County, California, they care for

more than 40,000 animals each year.

Marin Humane is a non-profit animal shelter

dedicated to transforming lives through animal care,

humane education, and advocacy. Located primarily in

Marin County, with a foster-based program in Oakland, California, Marin Humane provides a variety of

services to over 10,000 animals a year, including

adoptions, fostering, and humane education. They strive

to prevent animal abuse, increase awareness about

1

All parties have provided written consent to the filing of

this brief. No counsel for any party in this case authored this brief

in whole or in part, and no person or entity other than amici or

counsel has made a monetary contribution to the preparation or

submission of this brief.

2

animal welfare, and empower community members to

make humane choices.

Mercy For Animals (“MFA”) is a non-profit organization dedicated to constructing a just and sustainable food system. MFA works to eliminate the worst

farming practices and animal suffering including

through corporate welfare reform, legislation and policy work, undercover investigations, education, and advocacy. MFA has over 3.5 million U.S. supporters,

including in California, who seek to promote a world

free of farmed animal cruelty and end the exploitation

of farmed animals for food.

Rise for Animals is a non-profit organization focused on promoting humane treatment of animals in

captivity.

The Justice for Animals Program at the University

of San Francisco’s School of Law instructs students on

how the legal system handles the mistreatment and

neglect of billions of animals in research labs, puppy

mills, roadside zoos, and factory farms.

Professor Taimie Bryant is a Professor of Law and

Faculty Director of the UCLA Animal Law and Policy

Small Grants Program. Professor Bryant has published extensively on animal law, and has worked on

several legislative reform projects involving animals in

California.

Professor Douglas A. Kysar is a Professor of Law

and co-director of the Law, Ethics and Animals Program

at Yale Law School. Professor Kysar has published

3

extensively on various animal law topics, including animal imprisonment.

Professor Rajesh Reddy is the Director of the Animal Law Program at Lewis & Clark Law School and

has worked on U.S. and international animal protection efforts. Lewis & Clark Law School’s Center for Animal Law Studies aims to advance animal protection

through the law, including by challenging inhumane

practices through its Farmed Animal Protection Project.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

A state statute that “regulates even-handedly”

must be upheld “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the

putative local benefits.” Pike v. Bruce Church, Inc., 397

U.S. 137, 142 (1970). Proposition 12, the California Initiative at issue, easily meets this balancing test. The

Initiative regulates even-handedly—it bans the sale in

California of all pork products, regardless of where they

were manufactured, if the animals used to make the

product were “confined in a cruel manner.” Cal. Health

& Safety Code § 25990(b)(2).

The Court of Appeals correctly held that Proposition 12 does not burden interstate commerce, thus

obviating the need for examining the local benefits.

Moreover, Petitioners Pork Producers failed to adequately

state a claim regarding the economic burden actually

imposed by the Initiative. Petitioners’ argument is

4

premised on the erroneous assertion that the Initiative

“effectively” requires group housing. Complaint ¶ 24.

However, although Pork Producers can opt to use

group housing as a means of satisfying the Initiative,

they can also satisfy the conditions of the Initiative by

using larger stalls. Yet, their Complaint fails to allege

that this option would cause them undue economic

harm that is “excessive” in relation to the local benefits

conferred by the Initiative. This failure to adequately

address the actual requirements of the Initiative renders Pork Producers’ Complaint implausible under

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Proposition 12 also confers important local benefits, long recognized as falling within the purview of

state regulation—the protection of the public health

and morals by prohibiting the in-State sale of products

produced via cruel confinement practices. The Initiative ensures that California residents, who overwhelmingly voted for this legislation, are not complicit in the

production of meat products by cruel means, and that

those Californians who wish to consume pork can do so

without contributing to such cruelty.

Contrary to the allegations made in Petitioners’

Complaint, the confinement practices prohibited by

Proposition 12 are demonstrably cruel and inhumane,

with highly detrimental impacts on the physical and

psychological welfare of female pigs. Pork Producers’

assertions that Proposition 12 will decrease sow welfare are unsubstantiated, factually implausible, and in

contravention of current scientific evidence, including

5

conclusions from the U.S. Department of Agriculture.

Accordingly, the Court of Appeals’ decision should be

affirmed.

---------------------------------♦---------------------------------

ARGUMENT

I.

INTRODUCTION.

In 2018, 63% of California voters enacted Proposition 12, the Farm Animal Confinement Initiative (“the

Initiative”). Secretary of State Alex Padilla, Statement

of Vote 16 (Nov. 6, 2018). The law prohibits the sale in

California of whole pork meat which is “the meat of a

covered animal who was confined in a cruel manner.”

Cal. Health & Safety Code § 25990(b)(2). “Confined in

a cruel manner” means “a manner that prevents the

animal from lying down, standing up, fully extending

the animal’s limbs, or turning around freely,” (the

“stand-up-turn-around” requirement”). Id. § 25991(e)(1).

Furthermore, the law imposes square footage requirements—e.g., breeding pigs must have at least “24 square

feet of usable floorspace per pig.” Id. § 25991(e)(3).

Pork Producers erroneously contend that Proposition 12 violates the Dormant Commerce Clause “under

this Court’s extraterritoriality and Pike . . . doctrines.”

Petitioners’ Brief (“Pet. Br.”) 19. However, Proposition

12 does not govern out of state practices. Instead, it prohibits the in-state sale of pork products resulting from

cruel confinement, regardless of where the product was

produced.

6

Moreover, Proposition 12 easily satisfies the balancing test of Pike:

[w]here the statute regulates even-handedly

to effectuate a legitimate local public interest,

and its effects on interstate commerce are

only incidental, it will be upheld unless the

burden imposed on such commerce is clearly

excessive in relation to the putative local benefits.

Pike, 397 U.S. at 142. Indeed, even if Proposition 12

burdens interstate commerce in a cognizable way,

those burdens are not “clearly excessive” in relation to

the significant local benefits at issue here. The Initiative prevents Californians from being complicit in promoting, encouraging, and condoning cruel confinement

practices they find abhorrent, and allows California

residents who wish to consume pork products to do so

without contributing to such practices.

II.

THE PORK PRODUCERS HAVE FAILED

TO STATE A PLAUSIBLE COMMERCE

CLAUSE CLAIM.

The Pork Producers have not “plausibly” alleged

sufficient facts to support their Commerce Clause

claims. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557

(2007). As the Court noted in Iqbal, in reviewing

whether a Complaint plausibly states a claim for relief,

the Court must start by examining the actual elements of the claim. 556 U.S. at 675. Here, those elements require the Pork Producers to allege (1) that the

7

Initiative, as written, will impose substantial economic

burdens on out-of-state pork producers, and (2) that

those burdens are “clearly excessive” in relation to the

local benefit to Californians. Pike, 397 U.S. at 142; see

also Meyer v. Nebraska, 262 U.S. 390, 400 (1923) (even

a state law that governs commerce extraterritorially

will be upheld if it bears a “reasonable relation” to the

legitimate exercise of the state’s police power).

Pork Producers’ Dormant Commerce Clause

claims are premised on the erroneous assertion that

Proposition 12 “effectively” requires the use of group

housing, Complaint ¶ 24, and that switching to group

housing will impose substantial economic burdens,

Complaint ¶¶ 279–350, and result in less humane

treatment of the animals, Complaint ¶¶ 153, 164, 203,

323, 391. Petitioners make the same argument in their

brief on the merits. See Pet. Br. at 47 (asserting that

“[s]ows in group housing experience more injuries and

fatalities than sows housed in breeding stalls because

they are exposed to aggression”).

However, nothing in Proposition 12 requires a sow

to be housed in group housing. Rather, the Initiative

simply bans the sale of products from a sow “confined

in a cruel manner,” i.e., a manner that does not allow

the animal to meet the stand-up-turn-around requirement, Cal. Health & Safety Code § 25991(e)(1), and

there are other ways to meet the actual requirements

of the Initiative—the most obvious being to house the

sows in larger individual stalls.

8

Because the Pork Producers’ principal arguments

are based on this incorrect statement of the Initiative’s

requirements, the vast majority of their allegations

about economic burden center on the cost of switching

to group housing, rather than the cost of housing sows

in larger pens.2 Hence, their Complaint fails to plausibly allege that the Initiative—as actually written—violates the Commerce Clause.

In fact, the Complaint also fails to explain why the

Initiative “effectively” requires the use of group housing, rather than larger stalls. See Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (a complaint that tenders “ ‘naked

assertion[s]’ devoid of ‘further factual enhancement’ ”

does not pass the plausibility test) (quoting Twombly,

550 U.S. at 557). As this Court explained in Iqbal, such

“conclusory” factual allegations are not to be accepted

by the reviewing court as a basis for stating a claim.

Id.; see also id. at 681 (“bare assertions” of facts that

amount to a “formulaic recitation of the elements” of

the claim are not sufficient) (quoting Twombly, 550

U.S. at 555).

This is particularly true here, where the main fact

relied on by the industry—that the Initiative requires

2

The sole exception is a single allegation in the Complaint

that “[f ]or farmers who do not employ group housing, going from

14-square-foot gestation stalls to 24 square feet of pen space per

sow would drive an estimated 42% reduction in sow inventory and

the same percentage increase of average fixed costs,” Complaint

¶ 70, and the related statement that “[m]embers would face additional penalties by taking this route,” because they could not deliver as many pigs to their suppliers. Id. ¶ 71.

9

the use of group housing—is contradicted by the Initiative’s plain language. Therefore, because Pork Producers have based the bulk of their claims on a false

premise, they have failed to meet the requisite plausibility standard. See Twombly, 550 U.S. at 554 (courts

should not engage in “false inferences” to find claims

plausible). Moreover, while the Complaint contains

several self-serving allegations that it is more humane

to house sows in stalls that prevent the animals from

even turning around, rather than in group housing,

Complaint ¶¶ 153, 164, 203, 323, 391––allegations

that are also implausible, see infra at III.B—the Complaint does not contain a single allegation that housing

sows in larger stalls is somehow less humane.

Nor could Petitioners plausibly make such an allegation. As this Court explained in Iqbal, in determining whether allegations are plausible, the reviewing

court must “draw on its judicial experience and common sense.” 556 U.S. at 679 (emphasis added). Applying

that standard here, there simply is no validity to the

proposition that keeping a sentient animal for most of

her life in a stall that prohibits her from even turning

around is humane. Indeed, applying the Court’s “experience and common sense,” surely the members of this

Court would not accept such an allegation about a dog,

cat, or guinea pig—even though arguably it might be

easier to feed those animals and administer veterinary

treatment if they were so confined. This same “common

sense” requires rejection of the notion that these animals—who are also sentient, highly intelligent, naturally inquisitive, curious, and active—are somehow

10

treated more humanely by being confined in a way that

prevents them from even turning around in their crates

for their entire reproductive lives.

Because the Pork Producers have based their arguments on a demonstrably incorrect, and highly selfserving, reading of the Initiative, their claim for relief

is simply not “plausible” under Twombly and Iqbal.

III. PROPOSITION 12 FURTHERS IMPORTANT

PUBLIC BENEFITS FOR CALIFORNIA RESIDENTS.

The local benefits furthered by the Initiative are

substantial. By voting for the Initiative, Californians

proclaimed that they do not condone cruel confinement

practices, and do not want to be complicit in promoting

or encouraging such practices with respect to pork

products sold in their state. Further, without Proposition 12, Californian consumers who wish to eat pork

products have no way of ensuring that such products

have been produced without the use of extreme confinement. See infra IV. Therefore, these consumers

must either entirely forego eating such products—including, e.g., bacon for breakfast—or consume food produced through the inhumane treatment of animals, an

option they find morally repugnant. Therefore, it is

readily apparent that Proposition 12 serves the important local purposes of protecting the public health,

ensuring that Californians are not complicit in the inhumane treatment of animals, and allowing consumers to consume more humanely produced pork.

11

A. Pigs Are Complex, Social Animals Who

Display a Range of Behaviors and Emotions.

To demonstrate the significant local benefits at issue here, it is important to recognize the physical and

behavioral characteristics of pigs. Although scientists

are only beginning to understand the full extent of pig

cognition and emotional perception, behavioral studies

document that pigs are highly intelligent and emotionally sensitive. See generally Lori Marino & Christina

M. Colvin, Thinking Pigs: A Comparative Review of

Cognition, Emotion, and Personality in Sus domesticus, 28 Int’l J. Compar. Psych. 1 (2015). When piglets

are born, mothers can identify their offspring by voice.

See Gudrun Illmann et al., Acoustical Mother-Offspring

Recognition in Pigs (Sus scrofa domesticus), 139 Behaviour 487, 496 (2002). As they grow older, piglets develop a full repertoire of vocalizations, which scientists

have isolated and paired with different needs and

fears, such as requests for food, alarm calls, or distress.

See Elodie F. Briefer et al., Classification of Pig Calls

Produced From Birth to Slaughter According to Their

Emotional Valence and Context of Product, 12 Sci.

Reps. 3409, 3410, 3413 (2022).

12

A pig, with her piglets, at a farm sanctuary. Photo: JoAnne McArthur / We Animals Media

After learning to communicate with each other,

pigs develop an interest in play—they carry balls and

sticks, play fight with each other, and scamper and roll

in open fields. Kristina Horback, Nosing Around: Play

in Pigs, 2 Animal Behav. & Cognition 186, 187–192

(2014). These behaviors are strikingly like those exhibited by dogs, and studies of pig behavior repeatedly

note the overlap in cognitive and emotive capacities between these two species. See, e.g., Marino & Colvin, supra, at 7, 9–12, 14–15, 18.

Pigs search for food by rooting in soil with their

snouts. Richard Lutwyche, The Pig: A Natural History

76–77 (2019). This behavior is instinctive and a crucial

means by which pigs stimulate their senses and satisfy

their curiosity. Id.; see also A. Stolba & D. Wood-Gush,

The Behaviour of Pigs in a Semi-Natural Environment,

13

48 Animal Sci. 419, 419 (1989). Rooting also allows pigs

to create wallows where they can play and bathe. Lutwyche, supra, at 77.

A pig rooting at a farm sanctuary. Photo: Jo-Anne

McArthur / We Animals Media

In farms where they have room to roam, pigs will

frolic and move in energetic bounds, much like a dog at

play. See Lutwyche, supra, at 110; see also Creek Valley

Critters, Pigs Playing, YouTube 0:00–0:56 (Oct. 17,

2016), https://www.youtube.com/watch?v=2lTZt1xaErQ.

14

Visitors play with rescued pigs at a farm sanctuary.

Photo: Jo-Anne McArthur / We Animals Media

Pigs also have advanced analytic and empathetic

capacities, with a highly developed cognitive and

emotional understanding of their world. See Marino

& Colvin, supra, at 16; see also Inonge Reimert et al.,

Emotions on the Loose: Emotional Contagion and the

Role of Oxytocin in Pigs, 18 Animal Cognition 517, 526

(2015). Adult pigs express what is known in psychology

as emotional contagion—the ability to notice and respond to the emotional state of others. Reimert et al.,

supra, at 517, 526. Pigs are thus acutely aware of their

emotional environment and respond to the pleasure or

distress of their companions. Id.

15

Pigs in fields of chamomile at a farm sanctuary. Photo:

Jo-Anne McArthur / We Animals Media

Contrary to how they are treated by large industrial pork producers, pigs are not inanimate widgets in

a manufacturing process. See, e.g., Matthew Prescott,

Your Pig Almost Certainly Came from a Factory Farm,

No Matter What Anyone Tells You, Wash. Post (July 15,

2014) (quoting the National Hog Farmer: “The breeding sow should be thought of, and treated as, a valuable

piece of machinery whose function is to pump out baby

pigs like a sausage machine.”). Rather, pigs are highly

intelligent, curious, empathetic, social beings. As such,

they deserve to at least be allowed to turn around in

their enclosures. That is all that is required by the Initiative at issue here.

16

B. The Confinement Practices Prohibited

by Proposition 12 Are Cruel, Inhumane,

and Abusive.

Contrary to the Pork Producers’ assertions that its

local impacts are “flimsy,” Pet. Br. 47, Proposition 12

ensures that pork sold in California does not result

from intensive confinement systems that harm pigs

both physically and psychologically. Conventional “gestation stalls” or “crates”––which violate Proposition

12’s requirements and are the individual stalls currently lauded by Pork Producers––“immobiliz[e] breeding pigs in barren metal crates barely wider than their

bodies.” Iowa Investigation: Hawkeye Sow Centers (Hormel Supplier), Animal Outlook, https://animaloutlook.

org/investigations/iowa-pigs/ (last visited Aug. 4, 2022).

A breeding pig in a gestation crate in Hawkeye Sow

Center, Iowa. Photo: Animal Outlook

17

These crates are so small and restrictive that they

prevent the pigs from being able to turn around or express natural behavior. Id.; Humane Soc’y Veterinary

Med. Ass’n, HSVMA Veterinary Report: Welfare Concerns Associated with Intensive Farm Animal Confinement Methods 2 (n.d.) (hereinafter HSVMA) (noting

that gestation crates “are too small for the pigs to turn

around or take more than a step forward or backwards”).

A breeding pig in a gestation crate in Nebraska. Photo:

Animal Legal Defense Fund

The United States Department of Agriculture

(“USDA”) has further found that “simple movements

such as standing up or lying down may be difficult if

the sow is large, because the dynamic space requirements needed to carry out these posture changes are

greater than the static space requirements.” Jeremy N.

Marchant-Forde, USDA Sow Welfare Fact Sheet 1 (2010)

(hereinafter USDA). Breeding sows spend most of

their reproductive lives in crates, starting from when

they are first bred at around seven-months-old, see

18

Complaint ¶ 58(a), until they are culled or slaughtered

which happens, on average, between one and three

years of age. Yuzo Koketzu & Ryosuke Iida, Farm Data

Analysis for Lifetime Performance Components of Sows

and Their Predictors in Breeding Herds, 6 Porcine

Health Mgmt. 1, 4 (2020).

These sows have grown too big for the crates they are

kept in. Photo: Jo-Anne McArthur / Animal Equality /

We Animals Media

19

A bruised and bloody pregnant pig cannot comfortably

lie down in her gestation crate. Photo: Animal Legal

Defense Fund

Most gestation crates have no bedding materials,

meaning sows have no thermal protection, which, in

turn, can cause systemic stress due to the cold, and

may cause, or exacerbate, injuries. John Webster, Animal Welfare: A Cool Eye Towards Eden 148 (1995).

20

Pigs in gestation crates on a filthy floor. Photo: Mercy

for Animals

Pigs in gestation crates without any bedding materials. Photo: Mercy for Animals

21

The tiny size of gestation crates forces the animals

to urinate and defecate where they stand and the floors

of crates are often partially or fully slatted, with waste

falling into a pit below. USDA, supra, at 1. This means

that sows are housed directly above their own excrement, which exposes them to high levels of ammonia

and increases the prevalence of respiratory diseases.

See J.H. Smith et al., The Preference of Pigs for Fresh

Air Over Ammoniated Air, 49 Applied Animal Behav.

Sci. 417, 418 (1996); J.P. Tillon & F. Madec, Diseases

Affecting Confined Sows: Data from Epidemiological

Observations, 15 Annales de Recherches Vétérinaires

195, 198 (1984).

This sow’s cage has accumulated urine and feces, which

she is forced to lie in. Photo: Jo-Anne McArthur / Essere

Animali / We Animals Media

Experts in animal welfare science have consistently identified gestation crates as one of the most

22

inhumane forms of animal confinement. Donald Broom,

a Professor in University of Cambridge’s Department

of Veterinary Medicine has identified “the close confinement of sows in [crates] or tethers” as “one of the

most extreme examples of cruelty to an animal.” The

Humane Soc’y of the U.S., Scientists and Experts on

Gestation Crates and Sow Welfare 3 (2012) (hereinafter

HSUS 2012).

A sow in a gestation crate awaits insemination. Photo:

Andrew Skowron / We Animals Media

The Pew Commission on Industrial Farm Animal

Protection concluded that, “the most intensive confinement systems, such as . . . hog gestation pens . . . prevent the animal from a normal range of movement and

constitute inhumane treatment.” Pew Comm’n on Indus. Farm Animal Prot., Putting Meat on the Table:

Industrial Farm Animal Production in America 38

(2008). A video of pigs confined to crates in a pig farm

23

graphically illustrates the cruelty of these conditions.

See www.dropbox.com/s/fckwxut7qodic0p/WAM5532.

mp4?dl=0.

Pigs scream in gestation crates in a newly built industrial farm. Photo: Jo-Anne McArthur / We Animals Media

As explained by Ian Duncan, the Emeritus Chair

in Animal Welfare at University of Guelph:

In my opinion, the practice of keeping sows in

gestation crates for most of their pregnancy is

one of the cruelest forms of confinement devised by humankind. Sows are intelligent, inquisitive animals who naturally spend their

time rooting, foraging and exploring their environment. . . . All of this is completely denied

them by gestation crates and leads to enormous frustration.

HSUS 2012, supra, at 4.

24

A sow looks through the bars of a gestation crate.

Photo: Andrew Skowron / We Animals Media

A sow lies on the floor of a gestation crate. Photo: Andrew Skowron / We Animals Media

25

Breeding pigs physically and mentally suffer from

such intensive confinement. See Animal Outlook, supra, https://animaloutlook.org/investigations/iowa-pigs/

(video evidence at seconds 0:42 through 1:12 showing

the intensive confinement of Iowan pigs in gestation

crates). The USDA’s own report found that “the balance of data shows sows in [conventional gestation]

stalls to have more problems” than sows in group housing. USDA, supra, at 2. Studies have further shown

that a “high incidence of health problems [including

death] require[s] stall-housed sows to be removed”

from production, compared with a very low incidence

of health problems in group housing. D.M. Broom et

al., A Comparison of the Welfare of Sows in Different

Housing Conditions, 61 Animal Sci. 369, 382 (1995).

Gestation crates “reduce cardiac function, alter body

conformation, reduce bone strength and make[ ] posture changes more difficult.” USDA, supra, at 2. Intensive confinement causes overgrown hooves in sows,

making walking more difficult. The Humane Soc’y of

the U.S., An HSUS Report: Welfare Issues with Gestation Crates for Pregnant Sows 3 (2013) (hereinafter

HSUS 2013); see also Animal Outlook, supra, https://

animaloutlook.org/investigations/iowa-pigs/ (video evidence at minutes 1:13 through 1:22 showing a sow having difficulty walking with overgrown hooves).

26

A breeding sow with overgrown hooves from intensive

confinement. Photo: Jo-Anne McArthur / Animal Equality / We Animals Media

“Immobilization, a byproduct of the cage’s small

size, atrophies sows’ muscles and bones, making the

most basic movements difficult.” HSVMA, supra, at 2.

As the size of the sow increases during pregnancy, sows

in gestation crates experience increasingly severe discomfort. Leena Anil et al., Evaluation of The Relationship Between Injuries and Size of Gestation Stalls

Relative to Size of Sows, 221 J. Am. Veterinary Med.

Ass’n 834, 834 (2002).

Gestation crates are typically placed side by side

within facilities to maximize production (and profits),

which means sows must extend their limbs into adjacent crates while lying down, thus risking getting

stepped upon. Id. at 836.

27

A sow’s feet and ears stick into her neighbors’ crate

when she tries to lie down. Photo: Jo-Anne McArthur /

Animal Equality / We Animals Media

Another sow’s feet and ears sticking into her neighbors’ crates as she tries to lie down. Photo: Andrew

Skowron / We Animals Media

28

Sows in gestation crates often experience injuries

and soreness from rubbing against the bars of the

crates, or even from standing or lying down on the barren floors. Anil et al., supra, at 836.

A pig with a pressure sore from being housed in intensive confinement. Photo: People for the Ethical Treatment of Animals

“Skin lesions attributed to pressure, such as decubital ulcers, are more common in stalls.” USDA, supra,

at 2; see also Animal Legal Defense Fund, Investigation

Reveals Cruelty and Neglect at Hormel Foods’ Pig Supplier, YouTube (May 25, 2016) https://www.youtube.com/

watch?v=z5VitkAhM7Y (video showing pigs at a factory farm in Nebraska suffering from sores and other

physical ailments due to intensive confinement at seconds 0:06 through 0:30).

29

A close-up of a pressure sore on a crated pig. Photo:

Direct Action Everywhere

A severely irritated and inflamed pig backside from intensive confinement. Photo: Direct Action Everywhere

The slatted floors of gestation crates often have

sharp corners that can injure pigs’ exposed limbs, or

other body parts when they slip in the crates. Anil et

30

al., supra, at 836. Per the USDA, “[l]ameness appears

to be higher for sows in stalls.” USDA, supra, at 2.

Pigs in conventional gestation crates have “lower

immune function and higher disease incidence than

[pigs in] group housing.” USDA, supra, at 2. “Lack of

exercise and decreased water consumption [in crates]

greatly increases the risk of urinary tract infections.”

HSVMA, supra, at 2.

Sows also experience detrimental psychological

impacts from confinement in gestation crates. “[C]onfinement [in gestation crates] result[s] in alteration or

prevention of many of the sow’s normal behaviours, increases in abnormal behaviour and in various other indicators of poor welfare.” Jeremy N. Marchant &

Donald M. Broom, Effect of Dry Sow Housing Conditions on Muscle Weight and Bone Strength, 62 Animal

Sci. 105, 105 (1996). Sows housed in gestation crates

are more likely to exhibit stereotypic behavior—a wellrecognized indication of psychological distress—including biting the bars on crates and engaging in repetitive vacuum chewing (chewing without anything

in their mouths).

31

Some sows spend significant periods of time biting the

bars of their crates, a symptom of psychological distress. Photo: Mercy for Animals

A 2021 study found that, “[d]uring the whole pregnancy period, the frequency of empty chewing behavior

in gestating sows housed in [gestation crates] was significantly higher than that of sows in [group housing].”

Liu et al., A Comparison of the Behavior, Physiology,

and Offspring Resilience of Gestating Sows When

Raised in a Group Housing System and Individual

Stalls, 11 Animals 2076, 2079 (2021); see also John J.

McGlone, Review: Updated Scientific Evidence on the

Welfare of Gestating Sows Kept in Different Housing

Systems, 29 Proc. Animal Sci. 189, 195 (2013) (“[T]he

stereotypies directed to objects such as bars and feeders [was] greater among stalled sows compared with

group-penned sows.”); HSVMA, supra, at 2 (“Sows often resort to stereotypic behaviors, such as repetitively

32

chewing the bars of the cage. This is indicative of psychological distress.”).

A distressed sow biting the bars of her gestation crate.

Photo: Direct Action Everywhere

33

A pig bites her crate. Photo: Jo-Anne McArthur / We

Animals Media for The Guardian

In fact, many pigs “gnaw on the bars of their crates

until their mouths bleed.” Press Release, The Humane

Soc’y of the U.S., The Humane Society of the United

States Sues World’s Largest Pork Producer for Misleading Consumers (Oct. 18, 2021).

34

Blood and bloody bars on gestation crates at a Virginia

factory farm. Photo: The Humane Society of the United

States

Unresponsiveness in breeding pigs is another behavioral indication of poor welfare. Studies show that,

over time, crated sows become less responsive to external stimuli, including water poured on their backs, and

even squeals from piglets. D.M. Broom, Stereotypies

and Responsiveness as Welfare Indicators in StallHoused Sows 2 (Brit. Soc’y Animal Prod., Paper No. 19,

1986). The European Scientific Veterinary Committee

found that such inactivity and unresponsiveness is abnormal, and likely an indication of clinical depression.

Sci. Veterinary Comm., The Welfare of Intensively Kept

Pigs 93 (Sept. 30, 1997); see also Liu et al., supra, at 4

(“[T]he stress hormone (ACTH, A, COR) level of gestating sows housed in [gestation crates] was higher than

35

that of gestating sows housed in [group housing]

throughout the whole gestation period.”); https://www.

dropbox.com/s/3t0bi16zo6wzo3e/WAM15859.mp4?dl=0

(a video of a sow snorting in a gestation crate). The

USDA has also concluded that “[p]roductivity, using

measures of sow reproductive output, shows no advantages for stalls.” USDA, supra, at 2 (emphasis

added). Nevertheless, pork producers persist in using

these extreme, abusive, confinement systems to fit as

many pigs as possible into small spaces and maximize

their potential profit.3

For all these reasons, other industrialized countries, including England, Scotland, and Switzerland,

have banned the use of gestation crates. Farmed Animals Regulations 2007, SI 2007/2078, sch. 8, ¶ 5

(Eng.) (requiring that a “pig must be free to turn round

without difficulty at all times” and accommodations

3

Proposition 12 further prevents the cruel confinement of

veal calves and egg-laying hens for veal and eggs destined for California. Cal. Health & Safety Code § 25990(b)(1), (3)–(4). “Veal

crates are small, individual cages used to confine newborn calves

prior to their slaughter. Both the size of the crates and a tether at

the calves’ necks prevent them from turning around.” HSVMA,

supra, at 3. “Calves can be so crippled from confinement that they

have to be helped into the truck or trailer on the way to the

slaughter plant.” Facts on Veal Calves, Humane Soc’y Veterinary

Med. Ass’n, https://www.hsvma.org/facts_veal_calves#.YunKiS1h1n5

(last visited Aug. 2, 2022). Battery cages are “small wire enclosures crowding up to ten hens in single units that are frequently

stacked in egg production” and are “widely regarded as inhumane

for many reasons.” HSVMA, supra, at 1. “The small size of the

cage affords each hen, on average, only 67 square inches of space—

less space than the area of a single sheet of letter-sized paper—

on which to live her entire life.” Id.

36

must be constructed to allow the pig to “stand up, lie

down and rest without difficulty” except during farrowing and in the week prior to farrowing); The Welfare of

Farmed Animals Regulations 2010, SI 2010/388, sch. 6

pt. 2, ¶ 5 (Scot.) (same); Ordonnance sur la Protection

des Animaux [Animal Protection Ordinance], Apr. 23,

2008, SR 455, RS 455, art. 48 (Switz.) (requiring that

sows must be housed in groups except during the period of lactating or mating). The European Union has

also greatly restricted the use of gestation crates. See

2008 O.J. L 47, art. 3, ¶ 4.4

C. Proposition 12 Requires More Humane

Alternatives to These Cruel Confinement Systems for Pork Products Sold

in California.

More humane alternatives to gestation crates are

available and economically viable. HSVMA, supra, at

3. To begin with, farmers can choose to house their pigs

in larger stalls. Larger individual stalls, referred to as

“turnaround stalls,” are larger than customary gestation crates and have swinging wall dividers that allow

the sow to turn around. Dale Miller, Turnaround Stall

Worth a Second Look, National Hog Farmer (Mar. 15,

2009).

Another option—group housing—allows “groups

of up to several dozen sows [to be] housed together in

4

In sharp contrast to what is allowed in the U.S., the E.U.

only allows the use of gestation crates for a period of four weeks

during sow pregnancies. See 2008 O.J. L 47, art. 3, ¶ 4.

37

indoor pens, sometimes with deep litter allowing for

access to bedding materials, and [the] freedom to move

and the opportunity to socialize.” HSUS 2013, supra,

at 6. According to the World Organisation for Animal

Health, “[s]ows and gilts . . . are social animals and

prefer living in groups, therefore pregnant sows and

gilts should preferably be housed in groups.” World

Organisation for Animal Health, Terrestrial Animal

Health Code, ch.7.13.12 (2021).

An example of group housing that complies with Proposition 12. Photo: JYGA Technologies

While the pork industry alleges that Proposition

12’s square footage requirement lacks a scientific basis,

Complaint ¶¶ 376–388, and will decrease sow welfare,

Complaint ¶¶ 389–410, studies show that increased

space is directly correlated with increased sow welfare

38

and behavior. See Jeremy N. Marchant-Forde, The Welfare of Pigs 117 (2009); D.M. Broom et al., supra, at 384;

see generally D.M. Broom, supra. Although Pork Producers also allege that Proposition 12 harms sows by

increasing sow aggression, Complaint ¶¶ 393, 396–

397, these concerns are based, by the Producers’ own

admission, on experience with group housing offering

only sixteen to eighteen square feet of space per sow,

Complaint ¶ 162. By contrast, Proposition 12’s increased square footage requirement of twenty-four

square feet per sow would greatly minimize aggressive

interactions.

In fact, USDA research shows that, “[i]n group

housing, low levels of aggression are facilitated by . . .

housing the sows with greater than minimum recommended space allowances.” USDA, supra, at 2 (emphasis added). USDA scientist Dr. Jeremy Marchant-Forde

found that increased space is crucial, because “[a]s

space allowance decrease[s], the total number of aggressive interactions increase[s].” Marchant-Forde,

supra, at 118 (emphasis added). As John Webster,

Emeritus Professor at the University of Bristol, explains:

The case that sow stalls are good for welfare

is that they protect sows from injuries incurred through fighting . . . [r]est[ing] on the

premise that it is acceptable to prevent an undesirable pattern of behaviour by restricting

all forms of behaviour. It would be as valid to

claim that prisons would be so much more

39

manageable if all the inmates were kept permanently in solitary confinement.

John Webster, Animal Welfare: Limping Towards Eden

112 (2008) (emphasis added).

IV. THE LOCAL BENEFITS TO CALIFORNIANS ARE SUBSTANTIAL.

Contrary to the Pork Producers’ and Solicitor

General’s repeated characterization of the local benefit as merely a “philosophical” disagreement, e.g., Pet.

Br. 5; Solicitor General Amicus Br. 11, Californians

who voted for this Initiative have three valid interests

at stake—each of which is substantial and well within

the State’s power to regulate.

First, as others explain, there is a substantial interest in protecting consumers from unsafe and unhealthy

pork produced from intensively confined animals. See

Brief for Intervenor Respondents 36–41; see generally

Amicus Br. of Am. Public Health Ass’n et al.

Second, Californians have a moral objection to being complicit in the cruel, inhumane treatment of these

sentient animals—protection of which is well within

the purview of the State’s police powers. Indeed, if

questions of “profound moral and social importance”

are “unequivocally” left to the people to decide, Dobbs

v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2265

(2022), Californians should be able to decide not to be

complicit in such blatant cruelty to animals with respect to food products sold in their state. In fact, many

40

Courts, including this one, have found that a moral

value interest is a legitimate local benefit, particularly

in the animal cruelty context. “The traditional police

power of the States is defined as the authority to provide for the public health, safety, and morals” and this

Court has “upheld such a basis for legislation.” Barnes

v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991) (emphasis added). Indeed, even in Baldwin v. G.A.F. Seelig,

Inc., 294 U.S. 511 (1935), upon which Petitioners heavily rely, the Court noted that a state statute would survive a Commerce Clause challenge when it does no

more than “apply its domestic policy, rooted in its conceptions of morality and order. . . .” 294 U.S. at 528

(emphasis added).

In Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993), this Court discussed the

“legitimate governmental interests in protecting the

public health and preventing cruelty to animals.” Id. at

538 (emphasis added). Even earlier, in Baldwin, the

Court indicated that preventing the “evils springing

from uncared for cattle” would be a legitimate local

benefit. 294 U.S. at 524. Indeed, this Court has also

found that “the States’ interests in conservation and

protection of wild animals [are] legitimate local purposes similar to the States’ interests in protecting the

health and safety of their citizens,” Hughes v. Oklahoma, 441 U.S. 322, 337 (1979); see also Cavel Int’l, Inc.

v. Madigan, 500 F.3d 551, 557 (7th Cir. 2007) (“States

have a legitimate interest in prolonging the lives of animals that their population happens to like.”). As Justice Thomas explained in United States v. Lopez, 514

41

U.S. 549 (1995), “it seems to me that the power to

regulate ‘commerce’ can by no means encompass authority over . . . cruelty to animals, throughout the

50 States. Our Constitution quite properly leaves

such matters to the individual States, notwithstanding these activities’ effects on interstate commerce.” Id.

at 585 (Thomas, J., concurring) (emphasis added).5

In Pike, this Court observed that the outcome of

that case might have been different had the Court been

dealing with state legislation “where the propriety of

local regulation has long been recognized.” 397 U.S. at

143 (internal quotation omitted). Here, the state’s authority to regulate cruelty to animals with respect to

products sold in California—to safeguard the public

morals—is well established. As this Court recognized

in United States v. Stevens, 559 U.S. 460, 469 (2010),

“the prohibition of animal cruelty itself has a long

5

See also Ass’n des Éleveurs de Canards et d’Oies du Quebec

v. Bonta, 33 F.4th 1107, 1119 n.6 (9th Cir. 2022) (“A state’s interest in preventing animal cruelty is a legitimate matter of local

concern, even when that cruelty takes place outside the state.”)

(internal quotations omitted); Ass’n des Eleveurs de Canards et

d’Oies du Quebec v. Harris, 729 F.3d 937, 952 (9th Cir. 2013) (noting that “the State believed that the sales ban in California may

discourage the consumption of products produced by force feeding

birds and prevent complicity in a practice that it deemed cruel to

animals”); Chinatown Neighborhood Ass’n v. Harris, 794 F.3d

1136, 1147 (9th Cir. 2015) (“The purpose of the Shark Fin Law is

to conserve state resources, prevent animal cruelty, and protect

wildlife and public health. . . . These are legitimate matters of

local concern.”); Rocky Mountain Farmers Union v. Corey, 913

F.3d 940, 952 (9th Cir. 2019) (“[S]tates may regulate to minimize

the in-state harm caused by products sold in-state, a central aspect of the state sovereignty protected by the Constitution.”).

42

history in American law, starting with the early settlement of the Colonies.” See also, e.g., Pa. Soc’y for the

Prevention of Cruelty to Animals v. Bravo Enters., 237

A.2d 342, 348 (Pa. 1968) (“A legislative proscription,

such as that found in the cruelty to animals statute, is

declarative of the public policy and is tantamount to

calling the proscribed matter prejudicial to the interests of the public.”) (emphasis added); Waters v. People,

46 P. 112, 113 (Colo. 1896) (explaining that one “aim”

of that state’s anti-cruelty statute is “to conserve the

public morals”) (emphasis added); State v. Porter, 16

S.E. 915, 916 (N.C. 1893) (observing that the state’s

anti-cruelty code was, in part, “enacted to protect the

public morals”) (emphasis added); Claire Priest, Enforcing Sympathy: Animal Cruelty Doctrine After the

Civil War, 44 Law & Soc. Inquiry 136, 164 (2019) (noting that “cruelty occurring on private property, or

otherwise removed from direct observation . . . was

equally offensive to decency and public morals as cruelty occurring on the streets”) (emphasis added).

Thus, the state of California has a substantial interest in ensuring that its citizens do not contribute to

the cruelty of animals that end up in its markets—a

subject that has long been the province of state legislation—regardless of where those products originate.

The citizens of California do not want to be complicit

in patronizing or condoning the abuse and cruel treatment of these intelligent, social animals.

Third, Californians who wish to eat pork do not

want to eat products that were produced through such

cruel and inhumane practices. In fact, according to a

43

2020 survey, gestation crates were deemed an unacceptable practice by two-thirds of Americans (66%),

and nearly three-quarters of Americans (73%) “would

be more likely to buy pork products from a company

that is committed to ending the confinement of pregnant pigs than from one that is not.” The Harris Poll,

Majority of Pork Buyers Show Concern for Pig Welfare,

Survey Shows 5 (2020). Yet, without the protection conferred by the Initiative, Californians have no way to

avoid pork products resulting from such intensive confinement.6

Proposition 12 provides Californian consumers who

wish to purchase pork in the state with an assurance

that it has not been produced by cruel confinement

practices. Without Proposition 12, these Californians

have no guarantee that they can identify in-state pork

products that were not produced via cruel, morally offensive means. Even though the uncontested portion

of Proposition 12 ensures that pork produced in California meets the law’s confinement standards, Cal.

Health & Safety Code § 25990(a), federal law does not

require disclosure of the manufacturer’s location on

the label of a meat product. See 9 C.F.R. § 317.2(c)(3)

6

Although some products are voluntarily certified by third

parties as “humane,” most independent certifications “deceive

consumers by branding as humane products from animals raised

in intensive confinement.” Farm Forward, The Dirt on Humane

Washing 3 (2020). In fact, the “Animal Welfare Approved” certification is the only certification that avoids certifying products from

“animals raised in intensive confinement,” id. at 18, something

that the average consumer would not know without doing extensive independent research.

44

(2021) (regulations under the Federal Meat Inspection

Act require only that the label specify a “manufacturer,

packer, or distributor”) (emphasis added). Thus, as long

as the product is distributed in California, the label

need not identify its state of origin. Id.

Furthermore, absent Proposition 12, consumers

eating in restaurants, schools, and hospitals in California have no opportunity to ensure that the pork they

are eating was not produced by cruel methods.

Restaurant suppliers in California source meat

from all over the country. See, e.g., Our Supply Partners, West Coast Prime Meats, https://westcoastprime

meats.com/wholesale-partners/ (last visited Aug. 2, 2022)

(a major Californian meat supplier which sources pork

from numerous suppliers across the country); see also

Br. Retail Litigation Center et al. Amici Curiae Supp.

Pet’rs 12 (discussing how U.S. restaurants use 15,000

distribution centers located across the country). Absent Proposition 12, California consumers who dine in

these establishments have no way of ensuring their

meat was produced without the use of cruel confinement methods.

A 2021 study found that California school meals,

with only four percent of plant-based menu entrees,

rely largely on meat. Friends of the Earth, The State of

School Lunch in California 8 (Mar. 2021). Moreover,

from 2018–2019, California schools purchased 2.5 million pounds of pork through the USDA Foods program,

id. at 9, which obtains pork products from many states

other than California. See id. In fact, in 2015, barely

45

half of California’s schools purchased locally sourced

food products. See Purchase of Locally Produced Foods,

Cal. Dep’t of Educ. (June 16, 2021), https://www.cde.

ca.gov/ls/nu/sn/mbcnp062018.asp; Fingertip Facts on

Education in California, Cal. Dep’t of Educ. (Mar. 30,

2022), https://www.cde.ca.gov/ds/ad/ceffingertipfacts.asp.

Thus, children who are served pork products in school

cannot avoid eating pork that was produced through

cruel and inhumane confinement practices.

Similarly, without Proposition 12, Californians

who are served pork products in hospitals also cannot

avoid eating products produced by such cruel practices.

Pork purchases by the Nutrition and Food Services department at the University of California at San Francisco Medical Center alone were 11,925 pounds (9.6%

of purchases) in 2010 and 45,839 pounds (17.4% of purchases) in 2013. UCSF Med. Ctr. Nutrition & Food

Servs., UCSF Sustainable Foodservice: Annual Report

5–6 (2013).

Thus, Proposition 12 has an enormous impact on

California by ensuring that the pork Californians consume in-state is both healthy and free of at least some

of the taint of animal cruelty. Proposition 12 presents

more than just a philosophical determination regarding animal cruelty—it is a state’s effort to protect the

personal eating habits of its residents. Indeed, even

more so than for other practices to which people may

object on moral grounds, see, e.g., Trs. of Indiana Univ.

v. Curry, 918 F.3d 537, 542–43 (7th Cir. 2019) (upholding a ban on the sale of fetal tissue where the State

law was grounded in ethical concerns), the morally

46

offensive practices at issue here directly affect those

Californians who wish to eat pork products. In any

event, because Pork Producers failed to address these

substantial local benefits in their Complaint, let alone

allege that the economic burdens about which they

complain are “clearly excessive” in relation to those local benefits, Pike, 397 U.S. at 142 (emphasis added),

their Complaint fails to state a claim for relief under

the Commerce Clause.

V.

THE STATES SHOULD BE PERMITTED

TO REGULATE IN THIS AREA.

Finally, amici emphasize the importance of allowing states to decide these questions of great moral significance, with due regard for federal legislative

supremacy and individual constitutional safeguards.

Proposition 12, and laws like it, allow states to protect

their populaces from products that are cruelly produced and harmful to public health. See, e.g., Colo. Rev.

Stat. § 35-21-203 (2020) (Colorado statute forbidding

use of battery cages by 2025 and banning in-state sale

of products from battery cage systems by 2025); Colo.

Rev. Stat. § 35-50.5-102 (2008) (Colorado statute forbidding use of gestation crates in-state by 2018); Mich.

Comp. Laws § 287.746 (2009) (Michigan statute phasing out use of gestation crates by 2020 and prohibiting

use of, or in-state sale of, products produced from battery cages by 2025); Or. Rev. Stat. § 600.150 (2007) (Oregon statute banning use of gestation crates by 2012);

Or. Rev. Stat. § 632.835–850 (2019) (Oregon statute

banning use of battery cages in-state and banning

47

in-state sale of products from battery cage systems by

2024); Mass. Gen. Laws ch. 129 App., §§ 1-2–1-3 (2016)

(Massachusetts statute prohibiting in-state use of gestation crates, battery cages, and veal crates, and instate sale of products from such systems, by 2022); R.I.

Gen. Laws § 4-1.1-3 (2012) (Rhode Island statute forbidding use of gestation crates in-state by 2013); Ariz.

Rev. Stat. Ann. § 13-2910.07 (2006) (2006 Arizona statute phasing out in-state use of gestation crates by

2012); Ariz. Admin. Code R3-2-907 (2022) (Arizona regulations forbidding use of battery cages and banning

in-state sale of products from battery cage systems by

2025); Me. Rev. Stat. Ann. tit. 7, § 4020 (2009) (Maine

statute banning in-state use of gestation crates by

2011); Fla. Const. art. X, § 21 (a 2002 ballot measure

amended the Florida constitution to phase out in-state

use of gestation crates by 2008).

Failure to recognize the important local benefits

conferred by these laws would be antithetical to this

Court’s long-standing history of accepting the traditional police powers of states to legislate for the public

health and welfare, as well as to protect the public morals by reducing cruelty to animals.

---------------------------------♦---------------------------------

CONCLUSION

For the foregoing reasons, the Court should affirm

the holding of the Court of Appeals. Should the Court

nevertheless find that Petitioners have stated a claim

upon which relief might be granted, this case should be

48

remanded to the trial court for further proceedings on

the merits of that claim.

Respectfully submitted,

KATHERINE A. MEYER

Counsel of Record

Director

HARVARD ANIMAL LAW

AND POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

REBECCA L. GARVERMAN

Clinical Fellow

HARVARD ANIMAL LAW

AND POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

rgarverman@law.harvard.edu

Counsel for Amici Curiae

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.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.