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.

No. 21-468

IN THE

Supreme Court of the United States

________________

NATIONAL PORK PRODUCERS COUNCIL & AMERICAN

FARM BUREAU FEDERATION,

Petitioners,

v.

KAREN ROSS, IN HER OFFICIAL CAPACITY AS

SECRETARY OF THE CALIFORNIA DEPARTMENT OF FOOD

& AGRICULTURE, ET AL.,

Respondents.

________________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

________________

BRIEF OF AMICUS CURIAE ANIMAL

PROTECTION AND RESCUE LEAGUE, INC.

IN SUPPORT OF RESPONDENTS

________________

Bryan W. Pease

Counsel of Record

Pease Law, APC

3960 W. Point Loma Blvd.

Suite H-2562

San Diego, CA 92110

(619) 723-0369

bryan@peaselaw.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

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

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 3

I. Petitioners’ complaint fails to plausibly allege

lack of any local benefit, and Petitioners’ brief

provides no support for this unpleaded allegation 3

A.

Petitioners’ argument that States can have

no legitimate interest in banning products of

animal cruelty is supported by no authority and

is directly at odds with States’ rights to protect

public morals ....................................................... 5

B.

Unless prohibited from doing so by

Congress, States have a Tenth Amendment right

to ban the sale of products that harm public

morals................................................................... 9

II.

Petitioners

erroneously

conflate

Pike

balancing with the inapplicable per se rule against

discriminatory laws .............................................. 14

III. Petitioners rely on inapplicable caselaw

prohibiting discrimination against out of state

businesses ............................................................. 21

IV. Voters are aware of the extreme confinement

now commonly used in pork production, and

requiring California to allow the sale of such

products inflicts moral injury on the State .......... 23

ii

V.

There are also legitimate health and safety

concerns with the sale of products of extreme

animal confinement .............................................. 29

VI. The complaint does not plausibly allege

excessive extraterritorial effects and is internally

inconsistent ........................................................... 30

CONCLUSION ......................................................... 32

iii

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal (2009) 129 S. Ct. 1937 .................... 8

Ass'n des Éleveurs de Canards et d'Oies du Québec v.

Bonta (9th Cir. 2022) 33 F.4th 1107 .................... 18

Baldwin v. G.A.F. Selig, Inc. (1935)

294 U.S. 511 .........................................16, 17, 18, 20

Barrett v. State (1917) 220 N.Y. 423 ......................... 9

Bell Atlantic Corp. v. Twombly (2007)

550 U.S. 544 ............................................................ 8

Brown-Forman Distillers Corp. v. N.Y. State Liquor

Auth. (1986) 476 U.S. 573............................... 15, 16

C & A Carbone v. Town of Clarkstown (1994)

511 U.S. 383 .................................................... 21, 22

Collins v. Tri-State Zoological Park of W. Md., Inc.

(D.Md. 2021) 514 F. Supp. 3d 773 .......................... 6

Commonwealth v. Higgins (1931) 277 Mass. 191 ..... 6

Cook v. Marshall County (1905) 196 U.S. 261 .......... 9

Crosby v. Nat’l Foreign Trade Council (2000)

530 U.S. 363 .......................................................... 19

Crosby v. Nat'l Foreign Trade Council (2000)

530 U.S. 363 .......................................................... 19

Edgar v. MITE Corp. (1982) 457 U.S. 624 ................ 5

Energy & Env’t Legal Inst. v. Epel (10th Cir. 2015)

793 F.3d 1169 ........................................................ 20

iv

Field v. Barber Asphalt Paving Co. (1904)

194 U.S. 618 ............................................................ 9

Nat’l Foreign Trade Council v. Natsios

(1st Cir. 1999) 181 F.3d 38 ................................... 19

Pa. Soc. for Prevention of Cruelty to Animals v.

Bravo Enterprises, Inc. (1968) 428 Pa. 350 ............ 7

Pennsylvania Public Utility Com. v. Israel (1947)

356 Pa. 400, 1947 Pa. LEXIS 355 .......................... 7

Pike v. Bruce Church, Inc. (1970) 397 U.S. 137 ...... 22

Tenn. Wine & Spirits Retailers Ass'n v. Thomas

(2019) 139 S.Ct. 2449 .................................. 8, 10, 11

United States v. Stevens (2010) 559 U.S. 460 ........... 8

USA Recycling v. Town of Babylon (2d Cir. 1995)

66 F.3d 1272 .......................................................... 22

World-Wide Volkswagen Corp. v. Woodson (1980)

444 U.S. 286 .......................................................... 11

Statutes

7 U.S.C. § 4801 ......................................................... 11

Cal. Health & Safety Code § 25982 ......................... 20

Cal. Health & Safety Code § 25991 ......................... 13

Other Authorities

Bellush, Jewel, Milk Price Control: History of Its

Adoption (1933), New York History, Volume XLIII,

Proceedings of the New York State Historical

Association, Volume LX (1962) ............................ 17

California Secretary of State (2018)

https://vig.cdn.sos.ca.gov/2018/general/pdf/complet

e-vig.pdf ................................................................... 1

v

Foer, Jonathan Safran, Eating Animals 154 (2009

Kindle Edition) ...................................................... 30

Garbarino, James, Lost Boys: Why our Sons Turn

Violent and How We Can Save Them 54 (1999

Kindle Edition) ...................................................... 12

Matthew Scully, A Brief for the Pigs: The Case of

National Pork Producers Council v. Ross, National

Review (July 11, 2022),

https://www.nationalreview.com/2022/07/a-brieffor-the-pigs-thecase-of-national-pork-producerscouncil-v-ross/........................................................ 24

Robbins, John, Diet for a New America 25th

Anniversary Edition: How Your Food Choices

Affect Your Health, Your Happiness, and the

Future of Life on Earth

(2012 Kindle Edition)............................................ 25

Scully, Matthew. Dominion

(2002 Kindle Edition)............................................ 26

Simon, David Robinson, Meatonomics

(2013 Kindle Edition)............................................ 14

The American Catholic (2015) https://the-americancatholic.com/2015/05/17/lincoln-and-pigs/. .......... 13

Winders, Delcianna, Survey Says…Californians Can

Have Their Pork and Let Pigs Move (2021),

https://www.vermontlaw.edu/blog/animallaw/survey-says-califorians-can-have-pork-let-pigsmove. ..................................................................... 24

Rules

Federal Rule of Civil Procedure 8 ............................. 8

1

INTEREST OF AMICUS CURIAE1

Animal Protection and Rescue League, Inc.

(APRL) is a 501(c)(3) nonprofit organization based in

San Diego, California which coordinated volunteer

efforts to gather thousands of signatures for

Proposition 12 and contributed over $25,000 to

promote its passage, including through printing

promotional literature and hiring a local campaign

coordinator to organize volunteers. APRL was also a

co-signer on the rebuttal argument in favor of

Proposition 12 in the California General Election

Official Voter Information Guide (VIG).2

APRL has an interest in ensuring that a duly

enacted law approved by nearly two thirds of

California voters, which APRL volunteers expended

hundreds of hours and tens of thousands of dollars

helping to pass, is not eliminated based on the fiction

that there is no local benefit to California.

1 Pursuant to this Court’s Rule 37.3(a), amicus affirms that all

parties have consented in writing to the filing of this brief.

Pursuant to Rule 37.6, amicus further affirms that no counsel

for any party authored this brief in whole or in part, and no

entity or person, aside from amicus, its members, or its counsel,

made any monetary contribution intended to fund the

preparation or submission of this brief.

2 California Secretary of State (2018)

https://vig.cdn.sos.ca.gov/2018/general/pdf/complete-vig.pdf,

p.71

2

SUMMARY OF ARGUMENT

Petitioners fail to ever allege in their complaint,

and fail to show in their briefing, that States lack any

local interest in banning the sale of products of animal

cruelty within their borders.

Animal cruelty statutes fall under the general

police power of the State to protect public morals.

Violating such laws is not a crime against animals,

which are not legal persons and have no legal rights,

but rather is a crime against the State. A ban on the

sale of products of animal cruelty is no different. The

legally cognizable interest is in people not being

exposed to the sale of products of cruelty by retailers

within the State.

The vast majority of California voters have made

a value judgment to require all consumers in

California to pay slightly more money for pork from

animals that were raised with enough room to move

and turn around. By virtue of economies of scale, this

means all consumers in the State will have access to

pork from more humanely raised animals at a lower

price than they would be able to purchase otherwise

as individual consumers. This is another clear local

benefit which Petitioners do not address at all.

Finally, there are health and safety benefits to not

consuming the flesh of animals that have been

crammed into such tiny spaces for their entire lives.

Absent Congressional action to the contrary, voters

have an absolute right to ban the sale of pork in their

State that is the product of intensive confinement

leading to such health, safety, and moral concerns.

3

ARGUMENT

I. Petitioners’ complaint fails to plausibly

allege lack of any local benefit, and Petitioners’

brief provides no support for this unpleaded

allegation

Petitioners and the United States argue

extensively that California voters can have no

legitimate interest in how animals are raised in

another State. However, this issue is not raised at all

in the pleadings. In fact, Petitioners’ complaint

contradicts this argument and takes the exact

opposite position by extensively alleging that extreme

confinement is somehow better for animal welfare,

and that this is why the putative local interest

advanced by Proposition 12 is outweighed by

extraterritorial effects. Pet.App. 202a, 215a-231a.

Petitioners’ allegations, in addition to being

implausible, are also irrelevant, as Proposition 12

does not regulate farms in other states. The issue here

is what types of products voters in California consider

to be morally acceptable for local retailers to sell and

profit from. Thus, Proposition 12 regulates the local

sale of products that voters deem cruel, not the

actions of farms in another state, which can choose to

supply or not supply the local retailers that are the

entities actually subject to the law.

Paragraph 465 of the complaint alleges,

“Proposition 12 places excessive burdens on interstate

commerce without advancing any legitimate local

interest.” Pet.App. 232a. This is the only time at all

that the complaint mentions “local interest” or “local

benefit.”

4

The complaint fails to ever even allege that there

is no local benefit in California to a law that regulates

sales in California. Instead, Petitioners improperly

conflate lack of an out of state animal welfare interest

with a local interest in regulating what types of

products may be sold in California, alleging in the

next paragraph, “Proposition 12 is not justified by any

animal-welfare interest.” Ibid.

Petitioners seem to believe that if they can

convince a federal court these allegations are true,

this would allow the court to overrule any local

concerns in California regarding the sale of such

products as being outweighed by alleged increased

costs to pork suppliers, even though these costs will

be borne by California consumers.

However, it is the voters of California who get to

determine whether sale of a product violates public

morals of the State, not a federal court. California

voters have done so in passing Proposition 12.

The law at issue only regulates sales in California

and not any conduct outside of California. Thus,

California’s undisputed lack of jurisdiction to regulate

actions outside of California is not only irrelevant but

also goes outside of the pleadings in a case that was

dismissed at the pleading stage with leave to amend—

which Petitioners failed and refused to do.

5

A. Petitioners’ argument that States can

have no legitimate interest in banning

products of animal cruelty is supported by

no authority and is directly at odds with

States’ rights to protect public morals

Petitioners cite no law to support their unpleaded

allegation that voters can have no local interest in

banning the sale of products of animal cruelty in their

State. Petitioners instead cite only to the California

Department of Food and Agriculture (CDFA) analysis

finding that consumers in California may take

comfort in knowing the pork products being sold in

the State were not produced with extreme animal

cruelty, and assert without any authority that this is

not a valid State interest. Pet.Br. 36 (“its concern for

the ‘moral satisfaction, peace of mind, social approval’

of its citizens is not within the police power. Pet. App.

75a,” citing to CDFA analysis, and providing no

authority for the “not within the police power”

contention.)

Thus, Petitioners contend without any authority

whatsoever that the State can have no local interest

in ensuring consumers within its borders have this

protection and peace of mind.

The United States repeatedly makes the same

contention as well and relies on Edgar v. MITE Corp.

(1982) 457 U.S. 624, 644 for support. U.S.Br. 10, 20.

However, Edgar is inapposite.

The United States selectively quotes the sentence

fragment, “has no legitimate interest in protecting,”

and then misleadingly inserts the words, “the welfare

of animals located outside the State.” Ibid. The actual

quote from Edgar is, “While protecting local investors

6

is plainly a legitimate state objective, the State has no

legitimate interest in protecting nonresident

shareholders.” Edgar, 457 U.S. 624, 644, emphasis

added. Here, the animals are not the shareholders.

The shareholders here—i.e. the people the law is

intended to protect—are California residents, who

voters do not want being exposed to the sale of certain

products of animal cruelty in their State.

Just as the State has an interest in protecting local

investors, it also has an interest in protecting local

consumers, in this case from being exposed to the sale

of products within the State which the general

electorate has deemed to be products of animal

cruelty.

The United States goes on to assert without any

support that the cruelty “occurs entirely outside

California and has no impact within California.”

U.S.Br. 11, emphasis added. This presumes that the

only purpose of animal cruelty statutes is to protect

animals, which is not correct. Animal cruelty statutes

derive from the State’s general police power over

health, safety, and welfare to protect people from

being exposed to immoral behavior.

Thus, animal cruelty laws are “directed against

acts which may be thought to have a tendency to dull

humanitarian feelings and to corrupt the morals of

those who observe or have knowledge of those acts.”

Collins v. Tri-State Zoological Park of W. Md., Inc.

(D.Md. 2021) 514 F. Supp. 3d 773, 781, citing

Commonwealth v. Higgins (1931) 277 Mass. 191, 194.

“A legislative proscription, such as that found in

the cruelty to animals statute, is declarative of public

policy and is tantamount to calling the proscribed

7

matter prejudicial to the interests of the public.” Pa.

Soc. for Prevention of Cruelty to Animals v. Bravo

Enterprises, Inc. (1968) 428 Pa. 350, 237.

“When the Legislature declares certain conduct to

be unlawful it is tantamount in law to calling it

injurious to the public.” Pennsylvania Public Utility

Com. v. Israel (1947) 356 Pa. 400, 1947 Pa. LEXIS

355, ***6.

California voters have deemed it harmful to public

morals for retailers in California to profit from the

sale of meat derived from pigs confined for their entire

lives in crates too small to turn around in or even

move. This is not an issue of California seeking to

regulate conduct that occurs outside of the State, but

rather to protect public morals in California by

regulating what products local retailers may sell.

Petitioners’ entire argument in their brief—which

is only referenced in passing in a single, boilerplate

sentence of their 470-paragraph complaint—is that

there can be no local benefit to a law prohibiting the

sale of products in a State that voters in that State

have deemed to have been cruelly produced. Pet. App.

232a, ¶465.

Perhaps recognizing States do have an interest in

avoiding the harm to public morals that can be caused

by allowing the sale of products of extreme animal

cruelty within the State, Petitioners spend a great

deal of their brief and the majority of their underlying

complaint arguing that confining animals in cages

barely larger than their bodies for their entire lives is

actually more humane than the alternative.

8

The United States does not take a position on

whether Petitioners’ allegations are correct, but

asserts that because Petitioners have made such

allegations, the case must be allowed to survive the

pleading stage. U.S.Br. 5. However, Petitioners must

allege facts not merely showing that they may be

right, but that no reasonable person could think

otherwise. States are allowed to make value

judgments with which others may disagree.

Petitioners fail to plead facts plausibly meeting

that demanding standard and thus fail to overcome

the Iqbal/Twombly pleading standard under Federal

Rule of Civil Procedure 8. Bell Atlantic Corp. v.

Twombly (2007) 550 U.S. 544, Ashcroft v. Iqbal (2009)

129 S. Ct. 1937.

Claiming there can be no moral concerns with

refusing to allow animals to move or turn around for

their entire lives defies common sense. Alleging that

a State’s view to the contrary is irrational is not a

plausible allegation.

Even if the Court were to find Petitioners’

allegations plausible, voters and their representatives

are entitled to determine what constitutes a product

of cruelty that harms public morals if allowed to be

sold in their State. United States v. Stevens (2010) 559

U.S. 460, 476 (recognizing “there may be ‘a broad

societal consensus’ against cruelty to animals,” and

that there is also “substantial disagreement on what

types of conduct are properly regarded as cruel.”)

States are entitled to “ensure that retailers comply

with local laws and norms.” Tenn. Wine & Spirits

Retailers Ass'n v. Thomas (2019) 139 S.Ct. 2449,

2477. In this case, as evidenced by 63% of California

9

voters approving Proposition 12, the local laws and

norms are that certain products should not be sold

within the State that are derived from such extreme

confinement of animals.

B. Unless prohibited from doing so by

Congress, States have a Tenth Amendment

right to ban the sale of products that harm

public morals

The Tenth Amendment provides the general police

power of the State. “The police power is not to be

limited to guarding merely the physical or material

interests of the citizen. His moral, intellectual and

spiritual needs may also be considered.” Barrett v.

State (1917) 220 N.Y. 423, 428.

“The right of a State in the exercise of the police

power to make regulations which indirectly affect

interstate commerce has been frequently sustained.”

Field v. Barber Asphalt Paving Co. (1904) 194 U.S.

618, 623.

Police power may be lawfully resorted to for the

purpose of preserving public health, safety and

morals; a large discrimination is necessarily

vested in the legislature to determine what the

public interests require and what measures are

necessary for the protection of such interests.

Cook v. Marshall County (1905) 196 U.S. 261, 268.

The United States dismissively refers to the sale

ban at issue here as having “no in-state impact based

on a philosophical objection.” U.S.Br. 11. In fact, the

United States uses the phrase “philosophical

objection,” or some variation after “philosophical,”

such as position, disagreement, opposition, or

10

position, a total of seven times in its brief, in a

disparaging way, as if the fact that voters have a

moral objection to the sale of a certain type of product

occurring within their State means nothing.

However, a “philosophical objection,” i.e. a moral

objection, is an in-state impact. Absent a directive

otherwise from Congress, California voters do not

have to tolerate products of animal cruelty being sold

in their State.

Petitioners’ reference to the Pork Promotion,

Research, and Consumer Information Act, 7 U.S.C.

§ 4801(a)(2) is misdirection and actually highlights

that there is no federal preemption, as Congress could

have passed a law preempting local sale bans as part

of this set of laws but did not. Pet.Br. 8-9.

The United States also quotes Tenn. Wine, supra,

139 S.Ct. 2449, 2460 for the unremarkable holding

that, “without the dormant Commerce Clause, we

would be left with a constitutional scheme that those

who framed and ratified the Constitution would

surely find surprising.” The Framers would also find

it surprising that instead of traditional farms, we now

have massive, consolidated factory farms that cram

animals into cages too small to move or turn around.

Even more surprising would be an argument that

States that have a moral objection to such extreme

confinement must be required by the Constitution to

allow the sale of products of such extreme

confinement to be sold within their State, even though

Congress has been silent on the topic.

Tenn. Wine was about protectionism for in-state

businesses, which has always been held to be a

violation of the dormant Commerce Clause. Ibid (“it

11

would be strange if the Constitution contained no

provision curbing state protectionism.”)

As Petitioners would have it, despite California

having banned such confinement by farms within its

borders, California must nonetheless allow its local

retailers to profit from the sale of products that

California voters have a moral objection to. This turns

Tenn. Wine’s disallowance of protectionism on its

head. Instead of stopping protectionism, such a ruling

would actually require California to put its in-state

farms at a disadvantage, by allowing only out of state

producers to access to a market that in-state

producers are not allowed to cater to.

The United States also makes a passing reference

to World-Wide Volkswagen Corp. v. Woodson (1980)

444 U.S. 286, 293 to selectively quote four words:

“sovereignty of each State.” U.S.Br. 20. World-Wide

Volkswagen had nothing to do with sale of a product

in a state that was produced in another state. It was

about personal jurisdiction over an out of state

resident in order to issue a judgment. The ruling was,

“we find in the record before us a total absence of

those affiliating circumstances that are a necessary

predicate to any exercise of state-court jurisdiction.

Petitioners carry on no activity whatsoever in

Oklahoma.” Id. at 295.

Proposition 12, in contrast, applies only to

retailers in California selling products of extreme

animal cruelty that California voters find inflicts

moral injury upon the people of the State. Petitioners’

purported “members” remain free to do whatever they

wish in their own States, subject to those States’ laws

12

and federal law.3 Proposition 12 only places a

restriction on retailers in California. Cal. Health &

Safety Code § 25991(o).

Sending conflicting messages about treatment of

animals—for instance, that dogs should be treated

humanely, but that pigs can be locked in cages too

small to move or turn around, and that local

businesses are free to profit from this cruelty—can

have damaging impacts on public morals. And this

harm is what voters are entitled to address.

With their emotional retardation and great

difficulty recognizing the feelings of others, it’s

no wonder that animal abuse is common among

kids with difficult attachment histories…From

the perspective of a troubled boy, our society

has rather ambiguous moral standards about

the treatment of animals. This helps create a

moral space for cruelty by boys who seem to

lack the regular emotional feedback systems

that cause most children to stop the hurting

once they receive the victim’s signals of distress

and pain.

Garbarino, James, Lost Boys: Why our Sons Turn

Violent and How We Can Save Them 54 (1999 Kindle

Edition).

The benefit to people of not being exposed to

products of animal cruelty is highlighted in the

following anecdote about President Lincoln:

Petitioners are not pork producers but rather lobbying

organizations that claim those they lobby for have been injured,

and that this gives them both associational and direct standing.

3

13

Lincoln and other attorneys were riding on the

old Eighth Judicial Circuit when they passed by

a pig caught firmly in a mud mire. The poor pig

was squealing piteously, slowly sinking to its

doom. Lincoln and his fellow attorneys rode by.

After about a mile Lincoln stopped. He couldn’t

get that pig out of his mind. Turning back he

rescued the pig using two boards, the pig

getting him muddy in the process and ruining

the new suit he was wearing. Lincoln noted

that by freeing the pig from the mire, he had

also freed him from his conscience, and that

was worth a suit.

The American Catholic (2015) https://theamerican-catholic.com/2015/05/17/lincoln-and-pigs/.

It was irrelevant in this anecdote that the pig was

likely to eventually be slaughtered and eaten. The

issue was the effect of the pig’s needless suffering in

the interim on someone who was aware of it, in this

case Lincoln. California voters similarly do not wish

to be exposed, or have the people of their State

exposed, to the sale of products of animal suffering

that could corrupt public morals and dull

humanitarian feelings.

People are informed and concerned about

animal farming methods, and in surveys

assessing shoppers’ attitudes toward factory

farming, a majority of respondents prefer

practices that are more humane. Beyond the

weighty ethical questions, thanks to recent

research, we can also now quantify and

monetize consumer sentiment toward animal

farming. For example, agricultural economists

14

F. Bailey Norwood and Jayson Lusk show in

their 2011 book, Compassion by the Pound, that

consumers are actually willing to spend their

own, real money—in average amounts ranging

from $23 to $57 per thousand animals—to

improve farm animals’ lives. Factory farming

often exacts a toll on animals in the form of pain

and stress, and because humans care about

how animals are treated, we suffer too.

Simon, David Robinson, Meatonomics 134-135

(2013 Kindle Edition), emphasis added.

Individual consumers may determine they cannot

afford to pay significantly higher prices for specially

produced, cage free pork. However, when asked

whether everyone in the State should be required to

pay slightly higher prices so that all consumers in the

State have access to only pork from pigs that have

been given enough space to move and turn around,

voters overwhelmingly approved Proposition 12. More

affordable humanely raised pork due to economies of

scale is another clear local benefit that Petitioners

completely fail to address.

II.

Petitioners erroneously conflate Pike

balancing with the inapplicable per se

rule against discriminatory laws

Petitioners wish for the Court to strike down a law

duly enacted by millions of voters that bans the sale

of certain products in their State. In order to justify

this extreme incursion into the sovereignty of

individual States, which could never survive Pike

balancing given the State’s general police power to

protect public health, safety, and morals, Petitioners

instead attempt to invoke the per se rule against

15

discriminatory

or

protectionist

laws

while

misleadingly framing the issue as Pike balancing.

The United States does the same and engages in

aggressive burden shifting by stating, “respondents

cited no precedent of this Court holding that one

State’s bare philosophical disagreement with the

public policy of other States, concerning activities

outside the regulating State’s borders, qualifies as a

legitimate local interest under Pike.” U.S.Br. 20.

However, Petitioners are the side who must

produce some authority that “philosophical

disagreement”—i.e. a moral objection—is not a

sufficient local interest for banning sale of a product.

Neither Petitioners nor the United States have done

so. Petitioners did not even allege this in their

complaint, but are now making this argument for the

first time before this Court.

Petitioners erroneously argue their position is

supported by Brown-Forman Distillers Corp. v. N.Y.

State Liquor Auth. (1986) 476 U.S. 573, which holds

that a law requiring one State’s permission before a

liquor seller can reduce prices in another State, is

unconstitutional. Brown-Forman was a price control

case and is nothing like the present case, which does

not require Petitioners’ purported members to take

any action in another State. This argument also

conflates Pike balancing with the per se rule against

extraterritorial price control laws.

Pork producers could open pig farms inside or

outside of California that comply with Proposition 12

and sell their products in California. Or they could not

do so at all. There is nothing requiring current pork

16

producers operating as they are currently to sell their

products in California.

In Brown-Forman, the issue was not that

producers could only sell a certain type of product in

New York. Rather, it was that New York wanted to

impose its own price control scheme outside of New

York, such that producers had to ask permission from

New York before they could lower prices in another

State. Thus, the sale of the particular alcohol in New

York was not objectionable at all—rather the only

thing that was objectionable was the price that was

being charged to distillers in another State. In the

present case, in contrast, the actual product being

sold is something California voters take issue with,

and voters find the sale of such products to be

offensive to the public morals of the State and

harmful to health and safety.

Petitioners and the United States also repeatedly

refer to a hypothetical example in Baldwin v. G.A.F.

Selig, Inc. (1935) 294 U.S. 511 of conditioning sale of

a product on a certain wage scale being met in another

State being impermissible. This is an example of

another type of price control law. However, this is

very different from the sale of a product itself being

considered harmful or offensive to public morals.

In Baldwin, New York tried to justify its milk price

control law based on sanitation reasons. Baldwin

referred to a number of hypothetical examples of laws

that could cause milk producers in other States to

have more money which could then theoretically be

used to provide better sanitation. Baldwin found that

such laws in New York that are intended to cause

milk producers in other States to have more money is

17

too attenuated a link to be supported by New York’s

interest in having milk produced in sanitary

conditions be sold within its borders, which was the

only interest asserted by New York in Baldwin.

Thus, the State’s interest in milk being produced

in sanitary conditions was too attenuated from the

law at issue, which was a price control law and

nothing else. This is a completely separate issue from

confining animals in cages too small to turn around.

Sellers in California profiting from the sale of such

products harms public morals in California, according

to the voters. The purpose of Proposition 12 is not to

control prices.

A hypothetical minimum wage law as described in

Baldwin, based entirely on economics, could not

escape being protectionist at its core and intended to

control the price of a product for no reason other than

protecting in in-state markets. This was in fact the

only purpose of the actual law at issue in Baldwin.

Bellush, Jewel, Milk Price Control: History of Its

Adoption (1933), included in New York History,

Volume XLIII, Proceedings of the New York State

Historical Association, Volume LX (1962).

The cost of living as well as the required minimum

wage varies widely between and even within States,

as many cities also have their own minimum wage.

Conditioning sale of a product in one State on a

certain minimum wage being paid in another State

could be nothing other than an invalid price control

law, as it is unrelated to any interest in the State

where the product is being sold other than controlling

prices, which is an invalid purpose. Baldwin, supra,

294 U.S. 511, 524.

18

In contrast, a product made by cruelly confining

animals in cages where they cannot move or turn

around is a moral issue, not a price control issue.

California voters are concerned that the pork industry

routinely confines pigs in cages too small to turn

around or move for their entire lives, and 63% voted

to ban the sale of such products within their State.

Only Congress has the power to preempt such a State

law and has not done so.

The amicus brief of Hudson Valley Foie Gras

(HVFG)4 attempts to expand the minimum wage

hypothetical to other labor laws and treatment of

workers in another State generally, and claims that

because California has no jurisdiction over conditions

for workers in another State, it also can have no

interest in banning the sale of certain products based

on how animals are treated to make them.

As part of its hypotheticals, HVFG repeatedly

asserts the State’s only interest in passing such laws

would be to “influence” actions in another State.

HVFG Br. 6-8. However, Petitioners have not alleged

this is a purpose of Proposition 12, nor is there any

evidence that this is such a purpose. Variations of the

word “influence” only appear in paragraphs 173, 367,

HVFG force feeds ducks by machine to enlarge their livers to

over 12 times normal size, and then sells the grossly enlarged,

sickly livers as “foie gras.” Ass'n des Éleveurs de Canards et

d'Oies du Québec v. Bonta (9th Cir. 2022) 33 F.4th 1107, 1131.

California has banned products of such cruel force feeding. Cal.

Health & Safety Code § 25982. HVFG selectively quotes the

statute and misleadingly omits the word “force” before “feeding,”

to make it seem as though California is arbitrarily attempting to

regulate how much food ducks can be fed to allow the product to

be sold in California. HVFG Br. 5.

44

19

and 375 of the complaint, and none refer to the

purpose of Proposition 12. Pet.App. 187a, 217a, 219a.

HVFG relies on Nat’l Foreign Trade Council v.

Natsios (1st Cir. 1999) 181 F.3d 38, 69, aff’d sub nom.

Crosby v. Nat’l Foreign Trade Council (2000) 530 U.S.

363, in which Massachusetts implemented economic

sanctions on businesses that did business with the

country of Burma due to human rights abuses. HVFG

Br. 7. Thus, Massachusetts was not banning products

that were directly the result of human rights abuses,

but was imposing its own economic sanctions on

businesses that did business with Burma.

Proposition 12 does not impose economic

sanctions. Rather, Proposition 12 bans specific

products from being sold in the State that the State

has a direct moral objection to. The increased costs of

providing animals more space will then be borne by

purchasers in California.

In affirming Natsios, this Court explicitly declined

to address the First Circuit’s ruling that the law

violated the dormant Foreign Commerce Clause,

which is analogous to the dormant Commerce Clause.

Crosby v. Nat'l Foreign Trade Council (2000) 530 U.S.

363, 374, fn. 8. Instead, this Court affirmed on the

ground that Congress had already passed its own

sanctions against Burma, and the “statute conflicts

with federal law at a number of points by penalizing

individuals and conduct that Congress has explicitly

exempted or excluded from sanctions.” Id. at 378.

This Court further found the law “undermines the

President’s capacity, in this instance for effective

diplomacy…they compromise the very capacity of the

20

President to speak for the Nation with one voice in

dealing with other governments.” Id. at 381.

The need for Petitioners and amici to rely on

inapplicable price control and protectionism cases as

well as States imposing economic sanctions against

businesses that do business with a foreign

government, while disingenuously claiming that this

all somehow falls under Pike balancing, shows that

there is a gaping whole in Petitioners’ position.

Petitioners’ entire argument is premised on

seeking to move past the pleading stage to prove that

the putative local benefits of Proposition 12 are

outweighed by its extraterritorial effects. But,

realizing that this will be impossible, Petitioners

instead attempt to invoke the inapplicable per se rule

against discriminatory or price control laws.

In another case, the Tenth Circuit arrived at a

similar conclusion as the Ninth Circuit here, ruling “it

isn’t a price control statute, it doesn’t link prices paid

in Colorado with those paid out of state, and it does

not discriminate against out-of-staters.” Energy &

Env’t Legal Inst. v. Epel (10th Cir. 2015) 793 F.3d

1169, 1173.

“EELI reads Baldwin, Brown-Forman, and Healy

as standing for a (far) grander proposition than we do.

Exploiting dicta in Healy, EELI contends that these

cases require us to declare ‘automatically’

unconstitutional any state regulation with the

practical effect of ‘control[ling] conduct beyond the

boundaries of the State.’” Energy & Env't Legal Inst.

v. Epel (10th Cir. 2015) 793 F.3d 1169, 1174.

21

III. Petitioners rely on inapplicable caselaw

prohibiting discrimination against out of state

businesses

Petitioners and the United States also rely on C &

A Carbone v. Town of Clarkstown (1994) 511 U.S. 383,

which only prohibited discrimination against out of

state businesses.

The issue in C&A Carbone was the town using a

local ordinance to steer business to a waste plant in

order to pay for construction of the plant, thus openly

discriminating against out of state interests for purely

economic reasons. Id. at 393.

The United States selectively quotes a passage

and inserts the words “over animals welfare” in it.

U.S.Br. 11. The sentence preceding the one quoted by

the United States was, “Nor may Clarkstown justify

the flow control ordinance as a way to steer solid

waste away from out-of-town disposal sites that it

might deem harmful to the environment.” C & A

Carbone, 511 U.S. 383, 393.

Purported “harm to the environment” was not an

interest actually asserted by the town in C & A

Carbone, but the Court was simply cautioning the

town that it could not manufacture some other reason

regarding some occurrence in another State to justify

steering business to its disposal site. Once the waste

leaves one State, that State is not free to dictate to

another State how to process it.

C & A Carbone held that the town could enact

“uniform safety regulations enacted without the

object to discriminate. These regulations would

ensure that competitors like Carbone do not

22

underprice the market by cutting corners on

environmental safety.” Ibid.

Here, California has enacted a ban on the sale of

certain products within the State. The State is not

attempting to regulate what happens to a product

after it leaves the State, as in C & A Carbone, or even

before it comes into the State, which does not have to

occur at all. Rather, California is regulating the exact

opposite—whether a product may be sold within its

jurisdictional bounds.

The Second Circuit Court of Appeals distinguished

C & A Carbone in a case in which the town did not

discriminate against out of state competitors but

instead evenhandedly prohibited all garbage haulers

from participating in the market. USA Recycling v.

Town of Babylon (2d Cir. 1995) 66 F.3d 1272, 1283.

The law at issue there also easily overcame Pike v.

Bruce Church, Inc. (1970) 397 U.S. 137 (“Pike”)

balancing. USA Recycling at 1286-1287.

Proposition 12 is more like the law at issue in USA

Recycling, which did not discriminate between in

state and out of state commerce, and is nothing like

the law at issue in C & A Carbone.

As this Court has previously held, the relevant

inquiry in a dormant Commerce Clause analysis of a

State law is “to determine whether it regulates

evenhandedly with only incidental effects on

interstate commerce, or discriminates against

interstate commerce.” Fulton Corp. v. Faulkner

(1996) 516 U.S. 325, 331 (cleaned up.)

Proposition 12 applies equally to the sale of pork

products wherever they are from. Any effects on

23

interstate commerce are only incidental to the State’s

overriding interest in protecting public health, safety,

and morals.

IV.

Voters are aware of the extreme

confinement now commonly used in pork

production, and requiring California to allow

the sale of such products inflicts moral injury

on the State

Consumers are by now very much aware of cruelty

involved in modern day pork production, as evidenced

by the overwhelming vote in favor of Proposition 12.

There are many articles and best selling books that go

into detail about how this industry now operates,

which underscores that States have a legitimate local

interest in protecting public morals by banning the

sale of products of this cruelty that its citizens are

aware of.

A widely circulated photo of what one of these

intensive confinement cages looks like is seen below

from a Vermont Law School website:

Winders, Delcianna, Survey Says…Californians

Can Have Their Pork and Let Pigs Move (2021),

24

https://www.vermontlaw.edu/blog/animallaw/survey-says-califorians-can-have-pork-let-pigsmove.

And this photo that appeared in the National

Review recently:

Matthew Scully, A Brief for the Pigs: The Case of

National Pork Producers Council v. Ross, National

Review (July 11, 2022), https://www.nationalreview

.com/2022/07/a-brief-for-the-pigs-thecase-of-nationalpork-producers-council-v-ross/.

These intensive confinement systems first began

coming into use in the 1970s. In a 1976 issue of

Farmer and Stockbreeder, the following letter

appeared from a pig farmer:

May I dissociate myself completely from any

implication that this is a tolerable form of

husbandry? I hope many of my colleagues will

join me in saying that we are already tolerating

systems of husbandry which, to say the least of

it, are downright cruel… Cost effectiveness and

25

conversion ratios are all very well in a robot

state; but if this is the future, then the sooner I

give up both farming and farm veterinary work

the better.

An Enquiry into the Effects of Modern Livestock

Production on the Total Environment (London: The

Farm and Food Society, 1972), p.12, as quoted in

Robbins, John, Diet for a New America 25th

Anniversary Edition: How Your Food Choices Affect

Your Health, Your Happiness, and the Future of Life

on Earth 72 (2012 Kindle Edition).

The same year, the following letter appeared in

the factory farming journal Confinement from a

retired farm veterinarian:

More and more I find myself developing an

aversion to the snow-balling trend toward total

confinement of livestock… If we regard this

unnatural environment as acceptable, what

does it portend for mankind itself?… How can a

truly human being impose conditions on lower

animals that he would not be willing to impose

on himself? Freedom of movement and

expression should not be the exclusive domain

of man…What (then) of human behavior (in the

future)? Will it sink to the nadir of contempt for

all that is naturally bright and beautiful? Will

all of us become tailbiters without recognizing

what we have become?

A. Koltveit, Confinement (November-December

1976), p.3, as quoted in Robbins, 71-72.

“These two letters were written in 1976, just as

total-confinement systems for pork production were

26

gathering steam. Since then, despite the pleas of

these and other warning voices, the trend has

continued: more total confinement, more frustration

of all the animals’ natural urges, more farming by

automation and technology, more drugs, and more

assembly-line pork.” Robbins, 72-73.

In 1967 there were more than a million hog

farms in the country; today there are about

114,000, all of them producing more, more,

more to meet market demand. About 80 million

of the 95 million hogs slaughtered each year in

America, according to the National Pork

Producers Council, are intensively reared in

mass-confinement farms, never once in their

time on earth feeling soil or sunshine.

Genetically designed by machines, inseminated

by machines, fed by machines, monitored,

herded, electrocuted, stabbed, cleaned, cut, and

packaged by machines—themselves treated

like machines “from birth to bacon”—these

creatures, when eaten, have hardly ever been

touched by human hands.

Scully, Matthew. Dominion 29 (2002 Kindle

Edition).

Small farmers, as seen from Smithfield, are

hopelessly undisciplined, hopelessly behind the

curve in consumer tastes. In Mr. Poulson’s

analogy, to persist in small-scale farming today

is like trying to make cars in one’s own

backyard, refusing to automate and mass

produce and get with the global program.

Smithfield, he tells me, is like the Ford Motor

of livestock agriculture. “Our farms are run by

27

Ph.D.’s, guys in white coats. We’re the biggest

company, and big is not bad. Big is efficient. If

you wanted to add a couple of dollars to the

price of a pork chop at the counter, you can do

it very quickly. You can put them at free range.”

Id, 255.

A mix of tolerance and pity describes the

Smithfield attitude toward the traditional

farmer. They’ll let him linger on awhile,

sponging off the government until his affairs

are in order and he is ready to face his final

extinction. At the same time they do not mind

at all if consumers still think of their own

corporate operations as small farms like the

ones Smithfield has been systematically killing

off. They understand the deep sentimental

value of family farming, with its connotations

of land stewardship and decent treatment of

animals. That’s why so many of our meat labels

still bear the images of happy little farms with

animals grazing afield. That’s why the New

Agriculture still trades on the reputation of the

old with its countrified corporate brand names,

all of this “Murphy Family Farms,” “Clear Run

Farms,” “Sun-nyland,” and “Patrick’s Pride”

when the more apt designations would be

Murphy Factory Farms, Never Run Farms,

Sunlessland, and Patrick’s Shame.

Id., 256.

The sows each weigh 500 pounds. The crates

are seven feet long, and in width less than twice

the length of my 14-inch legal pad. Not much

room, is there? I ask. How can they even lie

28

down on their sides? Gay gives a baffled shrug,

like it’s some kind of trick question or she has

honest to God just never thought of it before. “I

don’t know. They just do.” The answer can be

seen in the swollen legs of the sows standing or

trying to stand. To lie on their sides, a powerful

inclination during months of confinement in

twenty-two inches of space, they try to put their

legs through the bars into a neighboring crate.

Fragile from the pigs’ abnormally large weight,

and from rarely standing or walking, and then

only on concrete, their legs get crushed and

broken. About half of those pigs whose legs can

be seen appear to have sprained or fractured

limbs, never examined by a vet, never splinted,

never even noticed anymore.

Id, 267.

We keep walking. Sores, tumors, ulcers, pus

pockets, lesions, cysts, bruises, torn ears,

swollen legs everywhere. Roaring, groaning,

tail biting, fighting, and other “Vices,” as

they’re called in the industry. Frenzied chewing

on bars and chains, stereotypical “vacuum”

chewing on nothing at all, stereotypical rooting

and nest building with imaginary straw. And

“social defeat,” lots of it, in every third or fourth

stall some completely broken being you know is

alive only because she blinks and stares up at

you like poor NPD 50-421, creatures beyond the

power of pity to help or indifference to make

more miserable, dead to the world except as

heaps of flesh into which the AI rod may be

stuck once more and more flesh reproduced.

29

When they have conquered the “stress gene,”

maybe the Ph.D.’s and guys in white coats can

find us a cure for the despair gene, too.

Id. 267-268.

V.

There are also legitimate health and

safety concerns with the sale of products of

extreme animal confinement

There are also health and safety concerns from

raising animals in such extreme confinement, which

Petitioners are well aware of:

These excessively stressed animals have the

industry worried, not because of their welfare,

but because, as mentioned earlier, “stress”

seems to negatively affect taste: the stressed

animals produce more acid, which

actually works to break down the animals’

muscle in much the same way acid in our

stomachs breaks down meat.

The National Pork Producers Council, the

policy arm of the American pork industry,

reported in 1992 that acid-ridden, bleached,

mushy flesh (so-called “pale soft exudative” or

“PSE” pork) affected 10 percent of slaughtered

pigs and cost the industry $69 million.

By 2002, the American Meat Science

Association, a research organization set up by

the industry itself, found that more than 15

percent of slaughtered pigs were yielding PSE

flesh (or flesh that was at least pale or soft or

exudative [watery], if not all three).

30

Foer, Jonathan Safran, Eating Animals 154

(2009 Kindle Edition), emphasis added.

In addition to considering pork produced by

extreme confinement to be immoral to sell in

California, voters also have legitimate health and

safety concerns regarding consumption of the flesh

of such intensively confined animals.

VI.

The complaint does not plausibly allege

excessive extraterritorial effects and is

internally inconsistent

Proposition 12 does not disadvantage or attempt

to regulate any out-of-state businesses. The

businesses subject to the law are grocery stores in

California that are required to source from suppliers

that meet Proposition 12’s space requirements.

Petitioners allege, “Consumer demands from

purchasers of pork to increase space for sows during

gestation has led roughly 28% of the industry to

convert from individual gestation stalls to group

housing.” Pet.App. 186a, ¶160.

Petitioners do not allege there has been any

problem determining which pigs were raised in group

housing to be able to sell pork labeled as such to

consumers who want it. Petitioners have presented no

authority for why a sovereign State has any less right

than individual consumers for demanding a certain

type of product for moral reasons.

Paragraph 162 of the complaint alleges, “Group

housing generally provides around 16 to 18 square

feet per sow,” compared to the 24 square feet required

by Proposition 12. Pet.App. 186a.

31

Thus, all the industry would have to do to adjust

some group housing for supplying to California

retailers would be to include 25% fewer sows in each

group pen. This would hardly rise to the level of

impermissible downstream effects.

The absurdly tight quarters 18 square feet

provides is likely the source of the aggression and

sanitation issues described by Petitioners that can

occur in group housing. This can be solved by simply

not cramming so many animals into the same pen.

Paragraph 111 alleges there are 125 million hogs

slaughtered annually, “at a total gross income of $26

billion annually.” Pet.App. 180a. The few hundred

million dollars in capital improvements Petitioners

allege would be needed is only around 1% of this $26

billion, and is a one-time cost. Pet.App. 209a. A onetime, one-percent cost is not sufficient to outweigh a

sovereign State’s right to regulate what products may

be sold within its borders as an issue of public health,

safety, and morals.

Paragraph 126 alleges, “Producers who contract

with packers do not sell directly to wholesalers or

consumers.” Pet.App. 181a. This is an admission that

the producers are not impacted by the law at all. The

retailers in California who ultimately must seek out

cage-free pork to sell are the businesses subject to the

law. Producers can cater to these requests or not, just

as they do with any consumer demand.

Paragraph 128 claims, “Pork is a particularly

difficult product to trace throughout the supply chain

because of the multiple and segmented steps in the

production process.” Pet.App. 181a. Yet this is

inconsistent with Petitioners’ other allegations that

32

28% of the industry has transitioned to group housing

in response to consumer demand. Pet.App. 186a,

¶160.

Paragraph 209 alleges, “Proposition 12’s

requirements were driven by activists’ conception of

what qualifies as ‘cruel’ animal housing, not by

consumer purchasing decisions or scientifically based

animal welfare standards.” Pet.App. 192a. Petitioners

claim this group housing is actually worse for animal

welfare than individual confinement, due to fighting

and sanitation issues, but this is logically the result

of cramming too many animals into group pens,

where they still cannot move or turn around without

touching the sides of the pen or another animal.

Thus, the 24 square feet of space required by

Proposition 12 allows the same group housing

demanded by consumers, and addresses the welfare

concerns raised by Petitioners of simply cramming

animals into groups with the same miserly amount of

space. Again, this is not an impermissible

downstream effect when weighed against a State’s

right to ban the sale of products that voters deem to

be morally unacceptable.

CONCLUSION

In claiming that States can have no legitimate

interest in how animals are treated to create a

product that is sold within the State, Petitioners seek

to abrogate the States’ general police power to protect

public health, safety, and morals.

Proposition 12 does not regulate anything that

occurs outside of California. The portion of

Proposition 12 challenged in this case only imposes a

33

requirement on retailers within California to ensure

that pork these businesses sell is not from animals

that were cruelly confined.

Animal cruelty laws fall under the general police

power of States to protect public morals, and violating

such laws is a crime against the State and not against

animals, which do not have legal rights. Accordingly,

the relevant inquiry is the harm to society by the act

being regulated, not the harm to animals.

Thus, Petitioners’ allegations that extreme

confinement of animals is somehow better for animal

welfare are not only implausible, but they are also

irrelevant. The only relevant inquiry is whether the

voters of California believe allowing the sale of pork

from pigs that could not move or turn around inflicts

moral injury on the State. The overwhelming majority

of voters do believe this, as shown by passing

Proposition 12.

Because Petitioners have not plausibly alleged

that Proposition 12 imposes extraterritorial effects

that far outweigh its purported local benefit,

Petitioners instead attempt to lump this case in with

price control and protectionism cases. However,

because this is clearly not a price control or

protectionism case, Petitioners do so in a

disingenuous manner, intended to disguise their

challenge as an ordinary Pike balancing test.

Accordingly, the judgment of the court of appeals

should be affirmed.

34

August 15, 2022

Respectfully submitted,

Bryan Pease

Counsel of Record

Pease Law, APC

3960 W. Point Loma Blvd.

Suite H-2562

San Diego, CA 92110

(619) 723-0369

bryan@peaselaw.org

Counsel for Amicus Curiae

Animal Protection and

Rescue League, Inc.