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, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

BRIEF OF HISTORIANS THOMAS AIELLO

AND JOSHUA SPECHT AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

————

A. DAMI ANIMASHAUN

14 Wall Street, Suite 1603

New York, NY 10005

(929) 266-3971

SHAKEER RAHMAN

838 East 6th Street

Los Angeles, CA 90004

(323) 546-9236

SHELDON EISENBERG

Counsel of Record

COURTNEY ELGART

NAIRI SHIRINIAN

SULLIVAN & TRIGGS, LLP

1230 Montana Avenue

Suite 201

Santa Monica, CA 90403

(310) 451-8300

seisenberg@

sullivantriggs.com

Counsel for Amicus Curiae

August 15, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTION PRESENTED

Whether the Commerce Clause implicitly forbids a

state from regulating in-state sales of food originating

in conditions the state deems unhealthy, unsafe, or

immoral.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

i

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

iv

STATEMENT OF INTEREST ............................

1

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

1

ARGUMENT ........................................................

2

I. Since the Founding Era, states have

regulated local food sales to ensure safe

and healthy food for their citizens ...........

2

A. Inspection and Packing .......................

3

B. “Unwholesome” or Harmful Foods......

6

C. Moral Reform .......................................

10

II. States continued to lead the way on food

regulation through the industrial era ......

12

CONCLUSION ....................................................

19

(iii)

iv

TABLE OF AUTHORITIES

CASES

Page(s)

Austin v. Tennessee,

179 U.S. 343 (1900) ...................................

18

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

294 U.S. 511 (1935) ...................................

15

Eldred v. Ashcroft,

537 U.S. 186 (2003) ...................................

2

Missouri, K. & T. Ry. Co. v. Haber,

169 U.S. 613 (1898) ...................................

10

Missroon v. Waldo,

11 S.C.L. 76 (S.C. Const. App. 1819) ........

7

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ...................................

13

Nat’l Meat Ass’n v. Harris,

565 U.S. 452 (2012) ...................................

16

New York Tr. Co. v. Eisner,

256 U.S. 345 (1921) ...................................

2

Plumley v. Massachusetts,

155 U.S. 461 (1894) ............................. 14, 15, 17

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ...............................

1

Robertson v. California,

328 U.S. 440 (1946) ...................................

18

Savage v. Jones,

225 U.S. 501 (1912) ...................................

17

United States v. Lopez,

514 U.S. 549 (1995) ...................................

12

v

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. art. I...........................................

12

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

STATUTES AND LEGISLATION

21 U.S.C.A. § 7 (West) (repealed 1938) .......

16

A Digest of the Laws of New Jersey (1838) .

5

A Digest of the Laws of the State of Georgia

(1822) .........................................................

7

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

2

Laws Ind. 1907, ch. 206 (Burns’ Ann. St.

§ 16-1001 et seq.) .......................................

17

Pub. L. No. 59-384, 34 Stat. 768 (1906)

(repealed 1938) .......................................... 16, 17

Public Laws of the State of Rhode Island

and Providence Plantation (1844) ............

7

Public Statute Laws of the State of

Connecticut (1821) ....................................

11

645 The Laws of Maryland (1793) ...............

4

1 The Laws of the Commonwealth of

Massachusetts (1807) ............................... 6, 13

1 The Laws of the State of New York

(1802) .........................................................

11

5 The Laws of the State of New York

(1809) .........................................................

5, 6

1 The Laws of the State of New York

(1906) .........................................................

10

vi

TABLE OF AUTHORITIES—Continued

Page(s)

The Public Laws of the State of Rhode Island

and Providence Plantations (1798) ............

4

1 The Revised Code of the Laws of Virginia

(1819) .........................................................

6, 7

3 The Statutes at Large: Being a Collection

of All the Laws of Virginia from the First

Session of the Legislature in the Year

1619 (1823) ................................................

4

6 The Statutes at Large of Pennsylvania

(1902) .........................................................

11

14 The Statutes at Large of Pennsylvania

(1902) .........................................................

11

5 The Statutes at Large of South Carolina

(1839) .........................................................

7

2 The Statutes at Large of Virginia

(1819) .........................................................

5

1 The Statutes at Large of Virginia, From

October Session 1792 to December

Session 1806 (1835) ..................................

4

OTHER AUTHORITIES

Carl L. Alsberg, “Progress In Federal

Food Control,” in Mazyck P. Ravenel

(ed.), A Half Century of Public Health

(1921) ................................................... 13, 14, 16

Curtis P. Nettels, The Emergence of a

National Economy, 1775–1815 (1962) .....

3, 5

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Deborah Blum, The Poison Squad: One

Chemist’s Single-Minded Crusade for

Food Safety at the Turn of the Twentieth

Century (2019) ..........................................

15

Gergely Baics, Is Access to Food a Public

Good? Meat Provisioning in Early New

York City, 1790–1820, 39 J. Urb. Hist.

645 (2021) ..................................................

7

James Young, Pure Food: Securing the

Federal Food and Drugs Act of 1906

(1989) .........................................................

14

Joshua Specht, Red Meat Republic: A Hoofto-Table History of How Beef Changed

America (2019) ..........................................

1

Lorine Swainston Goodwin, The Pure Food,

Drink, and Drug Crusaders, 1879–1914

(1999) .........................................................

13

M.L. Byrn, Detection of Fraud and

Protection of Health: A Treatise on the

Adulteration of Food and Drink (1852) ....

8, 9

Marc Law, The Origins of State Pure Food

Regulation, 63 J. Econ. Hist. 1103 (2003) ...

14

Michael McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. Chi. L. Rev.

1484 (1987) ................................................

13

Neal D. Fortin, Food Regulation: Law,

Science, Policy, and Practice (2017) ......... 12, 16

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Peter Barton Hutt, A History of Government Regulation of Adulteration and

Misbranding of Food, 39 Food, Drug, &

Cosmetic L.J. 2 (1984) ..............................

12

Ruth Clifford Engs, The Progressive Era’s

Health Reform Movement (2003) .............

14

Sarah F. McMahon, A Comfortable Subsistence: The Changing Composition of Diet

in Rural New England, 1620–1840, 42

Wm. & Mary Q. 26 (1987) .........................

3, 8

Thomas Aiello, Jim Crow’s Last Stand:

Nonunanimous Criminal Jury Verdicts

in Louisiana (2015) ...................................

1

Thomas Hoskins, What We Eat: An Account

of the Most Common Adulterations of

Food and Drink (1861) .............................. 9, 10

Thurman B. Rice, The Hoosier Health

Officer: A Biography of Dr. John N.

Hurty and the History of the Indiana

State Board of Health to 1925 (1941) ......

15

Upton Sinclair, The Jungle (1906)...............

16

U.S. Dep’t of Health and Human Services,

Reducing Tobacco Use: A Report of the

Surgeon General (2000) ............................ 17, 18

Wallace F. Janssen, America’s First Food

and Drug Laws, 30 Food, Drug, Cosmetic

L.J. 665 (1975) ..........................................

3

ix

TABLE OF AUTHORITIES—Continued

Page(s)

William J. Novak, The People’s Welfare:

Law and Regulation in NineteenthCentury America (1996) ........................... 10-11

STATEMENT OF INTEREST

Amicus curiae Thomas Aiello is Professor of History

at Valdosta State University in Valdosta, Georgia. His

2015 book Jim Crow’s Last Stand: Nonunanimous

Criminal Jury Verdicts in Louisiana was cited in

Ramos v. Louisiana, 140 S. Ct. 1390, 1417–1418

(2020) (Kavanaugh, J., concurring).

Amicus curiae Joshua Specht is Assistant Professor

of History at the University of Notre Dame. He is the

author of Red Meat Republic: A Hoof-to-Table History

of How Beef Changed America (2019).

Amici are academic historians with professional

expertise in how states have regulated food, farming,

consumption, and commerce from the Founding Era

until today. Marshaling amici’s professional research,

this brief aims to provide an accurate and thorough

historical perspective to inform this Court’s analysis of

the Commerce Clause’s meaning and context.1

SUMMARY OF ARGUMENT

Since the time of the Commerce Clause’s ratification, states have regulated the sale of food and other

products within their borders in order to protect the

health, safety, and morals of their citizens. These

regulations included bans on local sales of unsafe or

unhealthy agricultural products and ingredients, along

with detailed inspection standards concerning the

production and processing of meat sold inside a state’s

borders, no matter where the meat originated. Indeed,

1

No counsel for a party authored this brief in whole or in part,

or made a contribution to fund the preparation or submission of

this brief. The Open Philanthropy Project is the only person or

entity that made a contribution to fund the preparation of this

brief. This brief is filed with the written consent of the parties.

2

during the Founding Era and for the Nation’s first

century, the power to regulate food in these ways was

exercised almost entirely by the states. And even

during the industrial era, as Congress began to legislate in this field, states still led the way in channeling

local concerns into local regulatory standards. Laws

like this have always meant that food producers

who pursue business in multiple states must choose

whether to adapt their production, processing, and

sourcing methods to those states’ standards. Like

those numerous and longstanding state laws, Proposition

12 simply regulates which products may be sold within

California’s borders. The Court should not construe

the Commerce Clause to cast doubt on such a wellestablished form of state marketplace regulation.

ARGUMENT

I. Since the Founding Era, states have

regulated local food sales to ensure safe

and healthy food for their citizens.

Local standards safeguarding sales of foods are as

old as the Republic. Throughout the Founding Era,

the states that debated and ratified the Commerce

Clause frequently enacted regulations governing the

sale of food and other goods based on concerns about a

product’s production, quality, and morality. This

Court has frequently looked to this type of “history and

precedent” to determine the Constitution’s meaning.

Eldred v. Ashcroft, 537 U.S. 186, 187 (2003). This is

because “a page of history is worth a volume of logic.”

New York Tr. Co. v. Eisner, 256 U.S. 345, 349 (1921).

In this case, Founding Era legislative practice confirms that the Commerce Clause does not bar states

from regulating local food sales in a manner that

evenhandedly impacts all who pursue commerce in the

state.

3

Throughout the Founding Era, states both imported

food to feed their citizens and exported it to sustain

their industries. See Curtis P. Nettels, The Emergence

of a National Economy, 1775–1815 (1962). And during

this period, states enacted detailed regulations governing local sales of food, regardless of whether the

food was imported or locally produced. This included

inspection and production standards for cured

meat and fish, as well as laws restricting sales of

“unwholesome” or harmful provisions, particularly

fresh meat and dairy products.

A. Inspection and Packing

In the Founding Era, states enacted detailed

inspection requirements governing the packing and

processing of foods, especially for salted meat and fish

that traveled interstate in barrels. These laws prevented “spoilage and contamination” in “barrels used

to store and ship foods domestically” and ensured that

barrels, which were typically purchased intact, contained precisely what was promised. Wallace F.

Janssen, America’s First Food and Drug Laws, 30

Food, Drug, Cosmetic L.J. 665, 666–67 (1975). These

regulations governed a large share of American meat

consumption, since “salt beef and pork dominated the

meat diet in most families” throughout “the late

eighteenth and early nineteenth centuries.” Sarah F.

McMahon, A Comfortable Subsistence: The Changing

Composition of Diet in Rural New England, 1620–

1840, 42 Wm. & Mary Q. 26, 36 (1987). And laws

establishing packing, weight, and quality standards

for these barrels necessarily required producers to

conform their production methods accordingly, as the

cost of selling food to a state’s citizens.

For example, in 1791, less than three years after

Virginia ratified the Commerce Clause, it began to

4

require that each barrel of salted pork sold in the

Commonwealth contain 204 pounds of pork. 3 The

Statutes at Large: Being a Collection of All the Laws

of Virginia from the First Session of the Legislature in

the Year 1619, p. 261 (1823). The same law also

mandated that each barrel have at least “twelve hoops

thereon.” Ibid. The next year, a new enactment made

the standards even more detailed and also specified

that the law applied to “[a]ll beef and pork exposed to

sale or barter within this commonwealth in barrels,

whether the same be packed here or imported from

Carolina, or any other place.” 1 The Statutes at Large

of Virginia, From October Session 1792 to December

Session 1806, p. 173 (1835) (emphasis added).

Other states followed suit. In 1793, Maryland

amended a prior inspection statute to require that

beef and pork imported to Georgetown be inspected.

645 The Laws of Maryland, ch. 21, p. 13 (1793).

Recognizing that the prior statute “impose[d] no

penalty on persons offering salted provisions for sale

in said town, except for exportation,” the legislature

required inspection of all beef or pork regardless of

origin before the meat could be sold in Georgetown.

Ibid. Likewise, in 1798, Rhode Island enacted comprehensive inspection standards for meat sold in the

state. Beef and pork were required to be of “a good

quality” and packed in either full barrels (which had

to contain 200 pounds) or half barrels (100 pounds).

The Public Laws of the State of Rhode Island and

Providence Plantations, p. 509 (1798). The act also

required that barrels of beef and pork be classified and

labeled either “prime” or “mess” according to the cuts

of meat packed inside. Id. at 510. In 1802, New Jersey

also specified weight requirements for barrels of beef

and pork “exposed to sale within [the] state” and

mandated that the barrels “be[] of the materials and

5

dimensions” described and labeled “prime,” “mess,” or

“cargo” based on the cut of meat inside. A Digest

of the Laws of New Jersey, § 5, pp. 41–42 (1838). The

state also required that barrels conform to other

requirements such as having 12 hoops and completely

coopered heads. Ibid.

States also established inspection standards that

affected processing methods for fish, an industry

chiefly sustained by fisheries in New England. See

Nettels, supra, at 216–217. In Virginia, for example,

a 1795 law required detailed inspection of “[e]very

barrel of fish” regardless of whether it was “packed in

this Commonwealth for sale, in any town established

in this state . . . or imported here.” “An Act for

Inspection of Fish,” 2 The Statutes at Large of

Virginia, ch. 225, § 2, p. 191 (1819). Electric refrigeration was well over a century away, so the law provided

that “all barrels so packed shall be full, well nailed,

and pegged, and the fish therein shall be well salted,

sound, and well seasoned.” Id. § 3.

Seven years later, New York enacted a law with a

similar name but different requirements. “An Act for

the Inspection of Fish,” 5 The Laws of the State of New

York, ch. 59, p. 282 (1809). This 1802 law established

a system of appointing “not more than four inspectors

of fish in the city and county of New York” who would

enforce distinct packing and volume standards for

distinct species of fish (for example, “every barrel of

salmon inspected[] shall contain two hundred pounds”

and “nothing herein contained shall prevent the

putting up of dry salted herring, in barrels made of red

oak or black oak, with heads made of pine”), alongside

a mandate that “every barrel . . . in which fish shall

be packed . . . shall be made of well seasoned white

oak, rock oak or white ash staves and heading,” shall

6

“have twelve good hoops,” and shall “be perfectly

tight.” Id. §§ 3, 13, pp. 282–284.

These inspection laws – specifying complex state

standards for how barrels of pork, beef, salmon, herring,

and other fish should be packed, nailed, pegged,

weighted, and seasoned – necessarily impacted production and processing for whoever wished to supply

these products for a state’s consumers. This means

these laws necessarily had some effect on business

decisions outside the regulating state.

B. “Unwholesome” or Harmful Foods

The earliest state laws regulating food also banned

the sale of foods based on their quality or conditions

of origin, especially “unwholesome” provisions. In

1785, two years before the Constitutional Convention,

Massachusetts became the first state to enact a

general food law. Titled “An Act Against Selling

Unwholesome Provisions,” the law regulated all local

sales of food, regardless of origin. The law’s purpose

was to protect citizens from the sale of “diseased,

corrupted, contagious, or unwholesome provisions,”

which were a “great nuisance of public health and

peace.” 1 The Laws of the Commonwealth of

Massachusetts, p. 224 (1807). The law restricted the

sale of all such provisions “whether for meat or drink,”

punishable by fine or imprisonment. Ibid.

Virginia and South Carolina enacted similar laws

both before and after ratifying the Commerce Clause.

“An Act Prescribing the Punishment of Those Who Sell

Unwholesome Meat or Drink,” 1 The Revised Code of

the Laws of Virginia, ch. 187, p. 551 (1819) (enacting

in 1786 escalating criminal penalties for any person

“that selleth the flesh of any animal dying otherwise

than by slaughter or slaughtered when diseased, or a

7

baker, brewer, distiller, or other person, who selleth

unwholesome bread or drink”); id. at ch. 1, p. 4

(reenacting this law verbatim in 1819); 5 The Statutes

at Large of South Carolina, p. 22 (1839) (banning the

sale of “any poor carrion, blown, puffed up, or

unwholesome meats”); cf. Missroon v. Waldo, 11 S.C.L.

76, 78 (S.C. Const. App. 1819) (reversing a South

Carolina jury’s verdict that was in favor of a vendor

who had sold four barrels of “unwholesome” bread,

described as “loaves of English stamp which . . . in the

centre [of] was a musty collection which was equal to,

and perhaps worse, than a mixture of base metals”).

These laws continued to spread over the next decades.

E.g., A Digest of the Laws of the State of Georgia, pp.

366–367 (1822); Public Laws of the State of Rhode

Island and Providence Plantation, p. 411 (1844).

These “unwholesome” food laws were enforced both

through civil actions and through inspections of local

sales of fresh food, especially meat and dairy products.

While milk and fresh meat did not travel long distances in this era before refrigeration, both products

still crossed state borders and supplied regional

markets. A share of New York City’s meat and milk

was, for example, supplied from cattle herds across the

river in neighboring New Jersey. See Gergely Baics,

Is Access to Food a Public Good? Meat Provisioning in

Early New York City, 1790–1820, 39 J. Urb. Hist. 645,

650 (2021). Because “citizens expected their local

governments to ensure the availability of adequate

quantities and quality,” vendors and customers gathered

in public spaces “to conduct trade in fresh food under

the watchful eye of the municipal government.” Ibid.

These government inspectors were tasked with safeguarding “public health standards in the sale of fresh

provisions.” Id. at 655.

8

The expansion of “unwholesome” meat laws – as

well as the concerns underlying them – tracked the

expansion of American meat consumption, which

grew steadily in the decades following Independence.

See, e.g., McMahon, supra, at 36–39 (explaining that

combined average household allowances of beef and

pork in New England rose from 165 pounds in the

middle of the 18th century to “200 pounds by the early

19th century”). And as meat eating continued to

increase into the middle of the 19th century, so did

fears of the unsafe origins of animal products, including urgent concerns about the conditions in which

animals were raised.

For example, a health treatise from 1852 summarized

concerns about cattle fed “rotten” and “decompos[ing]”

produce, inhaling “poisonous vapors,” and housed

in inhumane conditions. M.L. Byrn, Detection of

Fraud and Protection of Health: A Treatise on the

Adulteration of Food and Drink, p. 37 (1852),

http://www.loc.gov/item/07026067. These conditions

were understood to create hazardous meat, supplied to

consumers who had no knowledge of the alarming

origins:

[A]fter the animals are fed and housed in

this way . . . they become, as a natural

consequence, worn down by disease and illtreatment—bloated up like the drunkard—

they then being of no further use as milch

cows, are killed, and the meat sent into

market to be consumed by an unconscious

and unthinking people.

Id. at 38. The treatise directly linked the way animals

were being “housed and fed” across the nation to the

“impur[ity]” of food products:

9

When we reflect on the many benefits these

useful animals were created to confer on

mankind, the more we become disgusted with

the way they are housed and fed, to supply

the large cities with milk; and persons must

not think that it is confined to New York,

Philadelphia, and Boston, but all cities of any

size are cursed with impure milk.

Id. at 30.

Another volume from the same period, written by a

physician and focused on threats to healthy eating,

also warned about the cramped quarters that livestock

suffered in, breathing filth and unable to move around:

The suffering animals stand in low unventilated buildings so closely, that it is impossible

for them to lie down without lying upon one

another. They breathe over and over again

the same air, tainted with the exhalations of

their own fevered bodies, and of the unutterable slimy filth voided from their diseased

and ulcerated intestines.

Thomas Hoskins, What We Eat: An Account of the

Most Common Adulterations of Food and Drink, p. 170

(1861), http://resource.nlm.nih.gov/62420660R. The

book observed that Americans had long been drawn to

reforming these inhumane conditions:

The distillery stables of New York, where

cows stand in hundreds and even thousands,

as closely as they can be packed, surrounded

by liquid filth, in low unventilated buildings,

fed almost entirely on the hot slop from the

whiskey stills, and in every stage of disease

and rottenness, have attracted the attention

of persons interested in sanitary reform and

10

the prevention of disease, ever since they

were first begun.

Id. at 165.

In addition to the health dangers of impure farm

products and unwholesome meat, another critical concern for the early states was disease spreading among

both humans and livestock. These afflictions were

thought to spread most rampantly in hot weather and

especially in crowded cities, so New York in 1801

banned importation of cotton, hides, coffee, or peltry

into New York City from June to October. “An Act to

provide against infectious and pestilential Diseases,”

1 The Laws of the State of New York, ch. 92, § 16, p.

368 (1906). State officials suspected that these goods

contributed to disease, so despite what importers might

consider an unworkable restriction on the interstate

trade of staple goods, the state took precautions to

protect its citizens. After all, “[t]he same bale of goods,

. . . the same cask of provisions, or the same ship, that

may be the subject of commercial regulations, may

also be the vehicle of disease.” Missouri, K. & T. Ry.

Co. v. Haber, 169 U.S. 613, 627 (1898) (quotation

omitted). But laws restricting those goods were “no

more intended as regulations on commerce than the

laws which permit their importation [we]re intended to

inoculate the community with disease.” Ibid.

C. Moral Reform

Finally, in addition to regulation of foods, Founding

Era states also enacted local restrictions on other

products they deemed harmful. And because “[t]he

postrevolutionary era witnessed the origins of one of

the most concerted and energetic moral reform movements in American history,” a major focus here was

moral perils. William J. Novak, The People’s Welfare:

11

Law and Regulation in Nineteenth-Century America,

p. 152 (1996). For example, states banned private

lottery tickets, declaring them a nuisance, e.g., 1 The

Laws of the State of New York, ch. 12, p. 35 (1802), as

well as tickets from state-run lotteries, e.g., Public

Statute Laws of the State of Connecticut, tit. 22, § 75,

p. 166 (1821) (banning any effort “within this state”

to “sell or otherwise dispose of any lottery tickets”

including those “issued from or under the authority of

any other state whatever”).

Pennsylvania’s efforts to ban lottery tickets are

especially relevant. In 1762, Pennsylvania’s colonial

legislature had enacted penalties for any person “who

shall set up or establish any lottery, or sell or expose

to sale any ticket or device in such lottery.” 6 The

Statutes at Large of Pennsylvania, p. 184 (1902).

After Independence, interstate flow of lottery tickets

undermined the ban. So legislators revisited the

matter in 1792, observing that the colonial ban “hath

not in latter years been considered to extend to

lotteries set up and established without this state.” 14

The Statutes at Large of Pennsylvania, pp. 198–199

(1902). Four years after their state convention voted

in Independence Hall to ratify the Constitution, the

state thus expanded the act to ban sale of any lottery

tickets, irrespective of origin, unless “authorized by

the laws of this commonwealth.” Id. at 199.

This range of early state laws protecting consumers

from harmful food and other goods – both locally

produced and imported alike – shows that the people

who drafted, debated, and ratified the Commerce

Clause did not believe they were surrendering this

power. Despite this proliferation of state laws regulating food products, Congress left regulation of domestic

food production to the states for at least the Republic’s

12

first century. This of course did not mean Congress

lacked power to regulate interstate commerce related

to food. Rather, regulating local food sales has always

been a quintessential state power, no matter that

these “numerous state inspection, quarantine, and

health laws had substantial effects on interstate

commerce.” United States v. Lopez, 514 U.S. 549, 594

(1995) (Thomas, J., concurring).

2

II. States continued to lead the way on food

regulation through the industrial era.

Industrialization brought both new benefits and

new threats to consumer health and safety. But far

from showing that early understandings of the Commerce

Clause became outmoded with industrial transformation,

the history of food regulation into this period confirms

the Founding Era’s wisdom of allowing states to lead

on this front. This proved especially important in a

highly networked and integrated national economy,

which exposed Americans to a growing range of new

health and safety concerns.

2

The “first federal food protection law was enacted by Congress

in 1883 to prevent the importation of adulterated tea.” Neal D.

Fortin, Food Regulation: Law, Science, Policy, and Practice, p. 4

(4th ed. 2022). The law solely governed foreign imports. “This

was followed in 1896 by the oleo-margarine statute, which was

passed because dairy farmers and the dairy industry objected to

the sale of adulterated butter and fats colored to look like butter.”

Ibid. But due to “doubts about the constitutional power of

Congress to regulate” domestic food production, “the legislation

imposed its regulatory control under the guise of a complex

system of taxation” enacted through Article I’s taxing power.

Peter Barton Hutt, A History of Government Regulation of

Adulteration and Misbranding of Food, 39 Food, Drug, &

Cosmetic L.J. 2, 45 (1984).

13

States continued to take the lead in safeguarding

food consumption to meet these threats, helping ensure

that “the facets of governing that touch on citizens’

daily lives [were] administered by smaller governments closer to the governed.” Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 536 (2012). Because

states tend to be more responsive to local consumers,

these laws meant that “innovation and competition

in government” was based on “local tastes and local

conditions.” Michael McConnell, Federalism: Evaluating

the Founders’ Design, 54 U. Chi. L. Rev. 1484, 1493

(1987). And because industrialization meant both

more centralized and specialized industries and more

mass-produced goods, these state laws necessarily

impacted national producers and supply chains.

States enacted the first laws dealing with the

hazards of certain industrially produced foods, usually

called “pure food” legislation. These laws prohibited

the mislabeling and adulteration of both natural and

processed food products. In Massachusetts – which a

century earlier had enacted the country’s first general

food law in 1795, see supra, at 6 – starting around

1879, “coalitions of consumers, health providers, and

public health officials were able to secure fairly comprehensive pure food laws, update and supplement

them as needs arose, and claim, with some justification, that Massachusetts led the nation in enforcing

the food laws on its books.” Lorine Swainston

Goodwin, The Pure Food, Drink, and Drug Crusaders,

1879–1914, pp. 62–63 (1999). Illinois had passed a

similar law in 1874, and a dozen other states followed

in the next decade. See Carl L. Alsberg, “Progress In

Federal Food Control,” in Mazyck P. Ravenel (ed.), A

Half Century of Public Health, p. 214 (1921).

14

Even as laws governing food purity and labeling

spread, they were by no means uniform. This meant

it “was often illegal to sell a product in one state that

was manufactured under strict laws in another.” Ruth

Clifford Engs, The Progressive Era’s Health Reform

Movement, p. 271 (2003); see also Alsberg, supra, at

215. In turn, “large national firms involved in interstate trade . . . resisted state regulation because

compliance with widely varying state regulations was

potentially costly.” Marc Law, The Origins of State

Pure Food Regulation, 63 J. Econ. Hist. 1103, 1120

(2003). But state legislators nonetheless acted to

protect their consumers, and “[b]y 1900 nearly every

state had passed some kind of pure food or pure dairy

legislation that made it illegal to sell ‘adulterated’ food

products.” Id. at 1103; see also James Young, Pure

Food: Securing the Federal Food and Drugs Act of

1906 (1989).

This Court rejected Commerce Clause challenges to

these laws, for example upholding a Massachusetts

criminal conviction for sale of butter “made partly of

fats, oils and oleaginous substances and compounds

thereof, not produced from unadulterated milk or

cream.” Plumley v. Massachusetts, 155 U.S. 461, 462

(1894). The challenged law no doubt impacted out-ofstate production of butter. But the Court explained

that this regulation of a food’s ingredients and production was within “plenary” state power, despite the

impact on interstate commerce:

If there be any subject over which it would

seem the states ought to have plenary control,

and the power to legislate in respect to which,

it ought not to be supposed, was intended to

be surrendered to the general government, it

is the protection of the people against fraud

15

and deception in the sale of food products.

Such legislation may, indeed, indirectly or

incidentally affect trade in such products

transported from one state to another state.

Id. at 473.

States continued passing pure food laws similar to

the one Plumley upheld as a response to local reports

of unsanitary, misleading, and unsafe food production

practices. For example, Indiana enacted such a law in

1898 after John Hurty, a Purdue University chemistry

professor and the state’s chief public health officer,

estimated that four hundred children in the state

had died from adulterated milk. Deborah Blum, The

Poison Squad: One Chemist’s Single-Minded Crusade

for Food Safety at the Turn of the Twentieth Century,

p. 63 (2019). Hurty even reported that milk producers

were faking the look of cream using pureed calf brains:

“It had been hard to get rid of the brains of immature

animals slaughtered. People could not be induced to

eat brain sandwiches in sufficient amount to use all

the brains, and so a new market was devised.”

Thurman B. Rice, The Hoosier Health Officer: A

Biography of Dr. John N. Hurty and the History of the

Indiana State Board of Health to 1925, p. 255 (1941).

Meanwhile in New York, a study of milk “produced

just across the Hudson River in New Jersey . . . found

‘so numerous a proportion of liquefying colonies [of

bacteria] that further counting was discontinued.’”

Blum, supra, at 23 (citation omitted). In a later case

out of New York, this Court observed that there was

no question that “milk may be excluded [from the

state] if necessary safeguards have been omitted” and

“[a]ppropriate certificates may be exacted from

farmers in Vermont and elsewhere.” Baldwin v.

G.A.F. Seeling, Inc., 294 U.S. 511, 524 (1935).

16

The success of state laws that protected consumers

from unwholesome, impure, or otherwise objectionable

goods – as well as growing outrage about conditions in

the nation’s food manufacturing plants – eventually

led to louder calls for the federal government to follow

the states’ lead. See Fortin, supra, at 4. Theodore

Roosevelt answered that call, urging federal standards

in his annual message to Congress in 1905. Within

the next year, “Upton Sinclair’s muckraking novel The

Jungle sparked an uproar over conditions in the

meatpacking industry” in ways no politician could,

Nat’l Meat Ass’n v. Harris, 565 U.S. 452, 455 (2012),

and Congress passed the Pure Food and Drug Act of

1906, which prohibited “the manufacture, sale, or

transportation of adulterated or misbranded or

poisonous or deleterious foods, drugs or medicines,

and liquors,” Pub. L. No. 59-384, 34 Stat. 768 (1906)

(repealed 1938).

While the 1906 law established federal standards, it

did not supersede state law. And sure enough, just

“within two years after the passage of the federal law

at least thirty states amended or enacted food laws.”

Alsberg, supra, at 271. Even across these new laws

“many differences remained.” Ibid. Across the nation,

states insisted on more stringent standards than

the federal law, reaching deeper into the details of

industrial production. For example, Indiana in 1907

banned sales of concentrated animal feed – which the

federal Pure Food and Drug Act regulated in the same

manner as human food, see 21 U.S.C.A. § 7 (West)

(repealed 1938) – unless manufacturers used methods

specifically approved by the U.S. Association of

Official Agricultural Chemists to ascertain “the

minimum percentage of crude fat or crude protein,

allowing 1 per cent of nitrogen to equal 6.25 per cent

of protein,” as well as “the maximum percentage of

17

crude fiber,” Laws Ind. 1907, ch. 206 (Burns’ Ann. St.

§ 16-1001 et seq.).

Indiana’s content labeling requirements went far

beyond the Pure Food and Drug Act’s misbranding

restrictions. Nonetheless, this Court upheld the Indiana

law against both Commerce Clause and preemption

challenges filed by a Minnesota producer who had

placed products violating the law’s standards on a

train to Indiana. See Savage v. Jones, 225 U.S. 501,

521, 532 (1912). The Court reiterated the same rule it

had applied to reject numerous industry challenges to

food-related state regulations over the years: “when

the local police regulation has real relation to the

suitable protection of the people of the State, and is

reasonable in its requirements, it is not invalid because

it may incidentally affect interstate commerce.” Id. at

525 (listing cases beginning with Plumley, 55 U.S.

461). The Court also cast aside the producer’s claim

that Indiana had “set up arbitrary standards governing conditions of manufacture.” Id. at 528.

States also led the way in enacting consumer

protections that evolved largely without congressional

culmination or even support. The clearest example

here is cigarettes.

Leadership on regulation of

smoking came from the states, with Congress rarely

weighing in. The first state consumer restrictions

were enacted in New Jersey and Washington in 1883,

outlawing underage sales. U.S. Dep’t of Health and

Human Services, Reducing Tobacco Use: A Report

of the Surgeon General, p. 30 (2000) (hereinafter

Surgeon General Report). By the decade’s end over

half the states in the union had such laws, and by

World War II every state besides Texas did too (Texas

joined in 1964). Id. at 31.

18

Some states went much further. In 1895, North

Dakota banned all cigarettes. By 1901, three more

states enacted similar bans and eleven others “had

some general anticigarette legislation.” Surgeon General

Report, supra, at 32. Eight more states joined over the

next decade. Ibid. Upholding Tennessee’s total ban,

this Court ruled that the law was fully “within the

police power of the States.” Austin v. Tennessee, 179

U.S. 343, 345 (1900). Addressing the impact on

interstate commerce, the Court rejected the notion

that a supplier “may, under the commerce clause of

the Constitution of the United States, bring into

[Tennessee] from other states cigarettes in unlimited

quantities, and sell them despite the will of Tennessee

as expressed in its legislation.” Id. at 362. As it

happens, these bans eventually fell. But that was

not because courts declared them invalid under the

Commerce Clause. Rather, state residents had enough

of the crusade and got their political representatives

to agree. See Surgeon General Report, supra, at 32.

In the light of this history, the ultimate question in

this case is whether states can keep contributing to the

development of regulatory standards in the way they

always have, versus whether the Commerce Clause

should be interpreted to “force all of the states to

accept the lowest standard for conducting the business

permitted by one of them.” Robertson v. California,

328 U.S. 440, 460 (1946). It may well be prudent for

Congress to enact federal uniformity in meat production and processing. Or it might be better to permit

more state innovation and let markets respond.

These are – and long have been – questions for state

legislatures and Congress, not for courts applying the

dormant Commerce Clause.

19

CONCLUSION

The Commerce Clause does not prohibit states from

enacting local safeguards on food originating outside

the state. If it did, many state laws pioneered by the

same Americans who drafted, debated, and ratified

the Constitution would be on questionable constitutional footing and the country’s ongoing history of food

regulation would be undermined. The judgment of the

Court of Appeals should be affirmed.

Respectfully submitted,

A. DAMI ANIMASHAUN

14 Wall Street, Suite 1603

New York, NY 10005

(929) 266-3971

SHAKEER RAHMAN

838 East 6th Street

Los Angeles, CA 90004

(323) 546-9236

SHELDON EISENBERG

Counsel of Record

COURTNEY ELGART

NAIRI SHIRINIAN

SULLIVAN & TRIGGS, LLP

1230 Montana Avenue

Suite 201

Santa Monica, CA 90403

(310) 451-8300

seisenberg@

sullivantriggs.com

Counsel for Amicus Curiae

August 15, 2022