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
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No. 21-468
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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.