Amicus Curiae Brief — National Pork Producers Council, et al., Petitioners v. Karen Ross, in Her Official Capacity as Secretary of the California Department of Food & Agriculture, et al.

Supreme Court briefAug 15, 2022

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No. 21-468

IN THE

Supreme Court of the United States

____________________

NATIONAL PORK PRODUCERS COUNCIL, ET AL.,

Petitioners,

KAREN ROSS, IN HER OFFICIAL CAPACITY AS SECRETARY

OF THE CALIFORNIA DEPARTMENT OF FOOD &

AGRICULTURE, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF WORKER SAFETY ADVOCATES AS

AMICI CURIAE SUPPORTING RESPONDENTS

DAVID S. MURASKIN

Counsel of Record

PUBLIC JUSTICE

1620 L St. NW, Suite 630

Washington, DC 20036

(202) 797-8600

dmuraskin@

publicjustice.net

LEORA N. FRIEDMAN

TYCKO & ZAVAREEI LLP

1828 L St. NW,

Suite 1000

Washington, DC 20036

(202) 973-0900

Counsel for Amici Curiae

CORPORATE DISCLOSURE

Amici curiae do not issue stock and have no parent

corporations.

TABLE OF CONTENTS

CORPORATE DISCLOSURE......................................i

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

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

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

ARGUMENT ............................................................... 6

Proposition

addresses

intensive

confinement that causes zoonotic disease to

spread among swine that will be sent to

California. ............................................................. 7

A. Gestation Crates........................................... 8

B. Confinement with less than 24 square

feet of usable floor space. ........................... 13

1. More Transmission............................. 13

2. Transmission of More Severe,

Novel,

and/or

AntibioticResistant Strains ................................ 15

II. With fewer intensively confined swine

entering California because of Proposition

12, the law will help protect the State’s

workers from zoonoses........................................ 17

A. Slaughterhouse Workers............................ 18

B. Livestock Auction Workers (and

Auction Attendees) ..................................... 23

C. Livestock Transport Workers .................... 24

III. California’s pork industry can incubate and

spread diseases among its employees and

in the surrounding population. .......................... 26

iii

IV. The only plausible conclusion is that

Proposition 12 is a constitutional

expression of California’s police powers to

protect the State. ................................................ 30

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

TABLE OF AUTHORITIES

Cases

Page(s)

Ashcroft v. Iqbal,

556 U.S. 662 (2009)........................................ 32, 33

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)............................................ 5, 6

Bowman v. Chi. & Nw. Ry. Co.,

125 U.S. 465 (1888).............................................. 31

City of Philadelphia v. New Jersey,

437 U.S. 617 (1978)........................................ 31, 32

Clason v. Indiana,

306 U.S. 439 (1939).............................................. 31

Gonzales v. Oregon,

546 U.S. 243 (2006).............................................. 31

Hill v. Colorado,

530 U.S. 703 (2000).............................................. 31

Maine v. Taylor,

477 U.S. 131 (1986).............................................. 32

McKiver v. Murphy-Brown, LLC,

980 F.3d 937 (4th Cir. 2020).............. 13, 15, 16, 17

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab.,

Occupational Safety & Health Admin.,

142 S. Ct. 661 (2022)............................................ 27

Pike v. Bruce Church, Inc.,

397 U.S. 137 (1970)................................................ 5

Sligh v. Kirkwood,

237 U.S. 52 (1915)................................................ 31

South Dakota v. Wayfair, Inc.,

138 S. Ct. 2080 (2018)............................................ 5

Statutes

Cal. Health & Safety Code § 25990 ........................ 4, 8

Cal. Health & Safety Code § 25991 .................. 4, 8, 13

Other Authorities

Laura Valeria Alarcón et al., Biosecurity in

Pig Farms: A Review, Porcine Health

Mgmt., Jan. 2021 ................................................. 25

Animal Prod. & Health Div., Food & Agric.

Org. of the United Nations, Improved

Animal Health for Poverty Reduction &

Sustainable Livelihoods (2002),

https://tinyurl.com/2p95bdst ......................... 24, 25

Gustavo Arellano, As Pigs Await Slaughter at

Farmer John, Strangers Offer Water, Love

and Comfort to the Doomed, L.A. Times

(Mar. 5, 2019, 9:00 AM),

https://tinyurl.com/mrx4222s ............................ 3, 4

Associated Press, Farmer John Meatpacking

Plant in Vernon to Close Next Year, KTLA,

June 10, 2022,

https://tinyurl.com/3uh5b42y .............................. 22

Auction Schedule, Escalon Livestock Mkt.,

https://tinyurl.com/4mzmsfdm ............................ 23

Muhammed Aziz & Varun S. Yelamanchili,

Yersinia Enterocolitica, StatPearls (July 4,

2022), https://tinyurl.com/2p96hkjn .................... 13

Eugénie Baudon et al., Epidemiological

Features of Influenza Circulation in Swine

Populations: A Systematic Review and

Meta-analysis, PLoS ONE, June 2017 ................ 14

Rossana Capoferri et al., Comparison Between

Single- and Group-Housed Pregnant Sows

for Direct and Indirect Physiological,

Reproductive, Welfare Indicators and Gene

Expression Profiling, 24 J. Applied Animal

Welfare Sci. 246 (2020) ........................................ 10

Ricardo Castillo Neyra et al., MultidrugResistant and Methicillin-Resistant

Staphylococcus Aureus (MRSA) in Hog

Slaughter and Processing Plant Workers

and Their Community in North Carolina

(USA), 122 Env’t Health Persps. 471 (2014) ...... 18

vii

Dana Cole et al., Concentrated Swine Feeding

Operations and Public Health: A Review of

Occupational and Community Health

Effects, 108 Env’t Health Persps. 685

(2000) .............................................................. 13, 16

Elizabeth Anne Jessie Cook et al., Prevalence

and Risk Factors for Exposure to

Toxoplasma Gondii in Slaughterhouse

Workers in Western Kenya, BMC Infectious

Diseases, Sept. 2021 ............................................ 21

Ctr. for Food Sec. & Pub. Health, Zoonotic

Diseases of Swine, Iowa St. Univ. Coll.

Veterinary Med.,

https://tinyurl.com/2p898wvp........................ 21, 22

4 Variant Virus Infections Linked to Pig

Exposures, Ctrs. for Disease Control &

Prevention (Aug. 12, 2016),

https://tinyurl.com/2hvuwnxp ............................. 24

Julie Funk & Wondwossen Abebe Gebreyes,

Risk Factors Associated with Salmonella

Prevalence on Swine Farms, 12 J. Swine

Health & Prod. 246 (2004)................................... 14

Maarten J. Gilbert et al., Livestock-Associated

MRSA ST398 Carriage in Pig

Slaughterhouse Workers Related to

Quantitative Environmental Exposure, 69

Occupational & Env’t Med. 472 (2012) ............... 22

viii

Mary J. Gilchrist et al., The Potential Role of

Concentrated Animal Feeding Operations

in Infectious Disease Epidemics and

Antibiotic Resistance, 115 Env’t Health

Persps. 313 (2007).............................. 16, 17, 19, 20

Gregory C. Gray et al., Swine Workers and

Swine Influenza Virus Infections, 13

Emerging Infectious Diseases 1871 (2007) ......... 29

Michael Greger, The Long Haul: Risks

Associated with Livestock Transport, 5

Biosecurity & Bioterrorism: Biodefense

Strategy, Prac., and Sci. 301 (2007) .............. 24, 25

Verena Grün et al., Influence of Different

Housing Systems on Distribution, Function

and Mitogen-Response of Leukocytes in

Pregnant Sows, 3 Animals 1123 (2013) .......... 9, 10

Jae-Ho Guk et al., Hyper-Aerotolerant

Campylobacter coli From Swine May Pose

a Potential Threat to Public Health Based

on Its Quinolone Resistance, Virulence

Potential, and Genetic Relatedness,

Frontiers in Microbiology, July 16, 2021 ............ 20

Andrew A. Hill et al., A Farm Transmission

Model for Salmonella in Pigs, Applicable to

E.U. Member States, 36 Risk Analysis 461

(2016) ...................................................................... 7

Institutional Animal Care & Use Comm.,

Zoonoses Associated with Swine, Wash. St.

Univ. (Jan. 2021),

https://tinyurl.com/vrsysrmt ............................... 5, 21

Meldra Ivbule et al., Presence of MethicillinResistant Staphylococcus Aureus in

Slaughterhouse Environment, Pigs,

Carcasses, and Workers, 61 J. Veterinary

Rsch. 267 (2017) ............................................ 28, 29

Yongdae Jeong et al., Improving Behavior

Characteristics and Stress Indices of

Gestating Sows Housed with Group

Housing Facility, 62 J. Animal Sci. & Tech.

875 (2020) ....................................................... 10, 11

E.S. Johnson et al., Non-Malignant Disease

Mortality in Meat Workers: A Model for

Studying the Role of Zoonotic

Transmissible Agents in Non-Malignant

Chronic Diseases in Humans, 64

Occupational & Env’t Med. 849 (2007) ......... 18, 22

M. Kulok et al., The Effects of Lack of

Movement in Sows During Pregnancy

Period on Cortisol, Acute Phase Proteins

and Lymphocytes Proliferation Level in

Piglets in Early Postnatal Period, 24 Polish

J. Veterinary Scis. 85 (2021) ............................... 11

Riikka Laukkanen et al., Contamination of

Carcasses with Human Pathogenic

Yersinia Enterocolitica 4/O:3 Originates

from Pigs Infected on Farms, 6 Foodborne

Pathogens & Disease 681 (2009) ............. 13, 14, 19

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

Physiology, and Offspring Resilience of

Gestating Sows When Raised in a Group

Housing System and Individual Stalls,

Animals, July 12, 2021 .................................... 9, 12

Wenjun Ma et al., The Pig as a Mixing Vessel

for Influenza Viruses: Human and

Veterinary Implications, 3 J. of Molecular

& Genetic Med. 158 (2009) ............................ 29, 30

Memorandum from Barbara Ferrer, Dir.,

Cnty. of L.A. Pub. Health, to Bd. of

Supervisors, Cnty. of L.A., Ensuring the

Safety and Well Being of Workers at

Industrial Facilities (Item No. A-1, Agenda

of May 26, 2020) (June 2, 2020),

https://tinyurl.com/h2e4hpse4 ........................... 3, 4

Riitta Merilahti-Palo et al., Risk of Yrsinia

Infection Among Butchers, 23 Scandinavian

J. Infectious Diseases 55 (1991) .......................... 19

Methicillin-Resistant Staphylococcus Aureus

(MRSA), Ctrs. for Disease Control &

Prevention (Feb. 5, 2019),

https://tinyurl.com/5hdte8s4 ............................... 18

Elodie Merlot et al., Improving Maternal

Welfare During Gestation Has Positive

Outcomes on Neonatal Survival and

Modulates Offspring Immune Response in

Pigs, Physiology & Behav., May 2022................. 12

E. Merlot et al., Prenatal Stress, Immunity

and Neonatal Health in Farm Animal

Species, 7 Animal 2016 (2013) ............................. 12

Modesto Livestock & Poultry Auction, Modesto

Livestock & Flea Mkt.,

https://tinyurl.com/yfew7vvd ......................... 23, 24

MRSA Infections (Methicillin-Resistant

Staphylococcus Aureus), Penn Med. (Sept.

1, 2021), https://tinyurl.com/27uk9kuw ........ 18, 19

Kendall P. Myers et al., Are Swine Workers in

the United States at Increased Risk of

Infection with Zoonotic Influenza Virus?, 42

Clinical Infectious Diseases 14

(2006) .................................................. 14, 16, 29, 30

Alex Padilla, Sec’y of the State of Cal., Official

Voter Information Guide (2018),

https://tinyurl.com/ms34fsmd ............................... 8

Pew Comm’n on Indus. Farm Animal Prod.,

Putting Meat on the Table: Industrial Farm

Animal Production in America (2008),

https://tinyurl.com/e62uft8r ...................... 9, 15, 16

Pork, Yosemite Foods,

https://yosemitefoods.com/products/pork/ ............. 4

xii

Premium Products, Olson Meat Co.,

https://www.olsonmeat.com/products ................... 4

Products, Clausen Meat Co.,

https://clausenmeat.com/products/ ........................ 4

QuickFacts Los Angeles County, California,

U.S. Census Bureau,

https://tinyurl.com/u6dnarwp.............................. 28

Lena Reiske et al., Interkingdom Cross-Talk

in Times of Stress: Salmonella

typhimurium Grown in the Presence of

Catecholamines Inhibits Porcine Immune

Functionality in vitro, Frontiers in

Immunology, Sept. 2020 ...................................... 11

Jason R. Rohr et al., Emerging Human

Infectious Diseases and the Links to Global

Food Production, 2 Nature 445 (2019) .......... 14, 15

Ana M. Rule et al., Food Animal Transport: A

Potential Source of Community Exposures

to Health Hazards From Industrial

Farming (CAFOs), 1 J. Infection & Pub.

Health 33 (2008) .................................................. 29

Sale Schedule, Petaluma Livestock Auction

Yard, https://tinyurl.com/mryrbzht ..................... 23

Schedule, Fresno Livestock Comm’n, LLC,

https://tinyurl.com/2kpm34cv.............................. 23

xiii

Scherer et al., Time Course of Infection with

Salmonella typhimurium and Its Influence

on Fecal Shedding, Distribution in Inner

Organisms, and Antibody Response in

Fattening Pigs, 71 J. Food Protection 699

(2008) .............................................................. 20, 21

Soc’y for Healthcare Epidemiology of Am. et

al., Policy Statement on Antimicrobial

Stewardship by the Society for Healthcare

Epidemiology of America (SHEA), the

Infectious Diseases Society of America

(IDSA), and the Pediatric Infectious

Diseases Society (PIDS), 33 Infection

Control & Hosp. Epidemiology 322 (2012).......... 19

Jonathan Steinberg et al., COVID-19

Outbreak Among Employees at a Meat

Processing Facility – South Dakota, MarchApril 2020, Morbidity & Mortality Wkly.

Rep., Ctrs. for Disease Control &

Prevention (Aug. 7, 2020),

https://tinyurl.com/mvyxedv5 ........................ 26, 27

Mhairi A. Sutherland et al., Effects of

Transport at Weaning on the Behavior,

Physiology and Performance of Pigs, 4

Animals 657 (2014) .............................................. 25

Charles A. Taylor et al., Livestock Plants and

COVID-19 Transmission, Proc. of the Nat’l

Acad. of Scis. of the U.S. (Nov. 19, 2020),

https://tinyurl.com/2naxdkce ......................... 27, 28

xiv

M. Tuchscherer et al., Effects of Prenatal

Stress on Cellular and Humoral Immune

Responses in Neonatal Pigs, 86 Veterinary

Immunology & Immunopathology 195

(2002) .............................................................. 11, 12

U.S. Dep’t of Health. & Hum. Servs.,

Antibiotic Resistance Threats in the United

States (2019), https://tinyurl.com/2tcrrk53 ......... 19

U.S. Dep’t of Agric., Econ. Rsch. Serv.,

COVID-19 Working Paper: Meatpacking

Working Conditions and the Spread of

COVID-19 (2021),

https://tinyurl.com/55ameyty .............................. 27

Jeanette I. Webster Marketon & Ronald

Glaser, Stress Hormones and Immune

Function, 252 Cellular Immunology 16

(2008) ...................................................................... 9

David O. Wiebers & Valery L. Feigin, What

the COVID-19 Crisis Is Telling Humanity,

54 Neuroepidemiology 283 (2020) ................. 29, 30

Terrance M. Wilson et al., Agroterrorism,

Biological Crimes, and Biological Warfare

Targeting Animal Agriculture, in Emerging

Diseases of Animals (Corrie Brown &

Carole Bolin eds., 2000) ....................................... 25

Yaqi You et al., Genomic Differences Between

Nasal Staphylococcus Aureus From Hog

Slaughterhouse Workers and Their

Communities, PLoS ONE, Mar. 2018 ................. 28

C. R. Young et al., Enteric Colonization

Following Natural Exposure to

Campylobacter in Pigs, 68 Rsch. in

Veterinary Sci. 75 (2000) ..................................... 20

Weidong Yue et al., Prevalence of Porcine

Respiratory Pathogens in Slaughterhouses

in Shanxi Province, China, 7 Veterinary

Med. & Sci. 1339 (2021) ....................................... 15

Ming-yue Zhang et al., Effects of Confinement

Duration and Parity on Stereotypic

Behavioral and Physiological Responses of

Pregnant Sows, 179 Physiology & Behav.

369 (2017) ..................................................... 8, 9, 10

INTEREST OF AMICI CURIAE 1

Amici submit this brief to correct Petitioners’

claim that Proposition 12’s in-state benefits are “bogus.” Pet’rs’ Br. 20. Amici work on occupational safety

and health, particularly the risks of disease spread in

the workplace, and represent food and agricultural

workers like those in California that face such hazards. Proposition 12 will protect thousands of California workers—particularly slaughterhouse, auction

house, and animal transportation workers—from the

risk of zoonotic disease. It will also insulate all Californians against the proven potential that food and

agriculture facilities will incubate and spread zoonoses to the broader population. Thus, Petitioners’ challenge could undermine amici’s long and ongoing efforts to create safe working environments and could

endanger amici’s members, their families, and their

communities.

Amicus David Michaels, PhD, MPH, was the longest tenured administrator in the history of OSHA,

serving as Assistant Secretary of Labor for Occupational Safety and Health from December 2009 to January 2016. Dr. Michaels, an epidemiologist, is currently a professor at George Washington University

School of Public Health, Departments of Environmental and Occupational Health and Epidemiology.

Amicus Jordan Barab served as Deputy Assistant

Secretary of Labor for Occupational Safety and

Health from 2009 to 2017. He was Senior Labor Policy

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

and no person other than amici or their counsel made a monetary contribution to this brief’s preparation and submission. All

parties have consented to this filing.

Advisor to the House Education and Labor Committee

from 2019 to 2021.

Amicus the National Council for Occupational

Safety and Health (“NCOSH”) consists of twenty-six

local nonprofits and a network of 2,000 advocates focused on creating safe working conditions, including

through providing technical assistance to build safe

workplaces and develop safety policies. NCOSH has

numerous ongoing campaigns seeking to improve the

conditions of food and agriculture workers, including

protecting them against zoonoses.

Amicus the National Joint Council of Food Inspection Locals represents the USDA Food Safety Inspection Service employees working throughout the country, including those in the meat processing plants

throughout California.

Amicus the Food Chain Workers Alliance is a coalition of groups representing workers throughout the

food chain, including advocacy organizations, worker

centers, and unions representing food workers, including warehouse, retail, and slaughterhouse workers and truckers throughout California.

Amicus the HEAL (Health, Environment, Agriculture, Labor) Food Alliance is a California-based national coalition whose members represent over 2 million farmers, fishers, workers, indigenous groups, scientists, organizers, and advocates. Many of its members work in or live adjacent to meat-packing plants,

and HEAL’s current campaigns include protecting the

dignity and safety of food workers and their families.

Amici Public Justice and Towards Justice are national legal advocacy organizations that represent

food workers, including slaughterhouse and other

meatpacking workers regarding unsafe conditions

stemming from COVID-19 and other diseases.

SUMMARY OF ARGUMENT

Petitioners ask this Court to adopt an extreme,

never-before-heard-of rule that would strip the

dormant Commerce Clause of a core precept: that

states may protect their residents and interests, even

if doing so has some out-of-state effects. According to

Petitioners, every law that has “the practical effect of

controlling commerce outside the State” is “almost per

se invalid,” Pet’rs’ Br. 19, regardless of whether the

state is exercising an established local police power.

In our modern economy, such a rule would relieve

most producers of any state-level design or manufacturing requirement. The facts of this case in particular demonstrate why states must be able to legislate

even if their laws have out-of-state effects. Proposition 12 is a well-supported exercise of California’s historic police powers to protect public health and safety,

securing the State against the likely spread of zoonotic diseases among its workforce and into its general

population. Thus, Petitioners’ proposed rule is both

baseless and dangerous.

California is home to thousands of animal workers

who handle pigs or their carcasses, the meat of which

winds up on grocery store shelves across the State.

Smithfield Foods’ Farmer John plant operates in

Vernon, California, next to downtown Los Angeles,

where its over 1,800 workers process around 7,000

hogs per day. Memorandum from Barbara Ferrer,

Dir., Cnty. of L.A. Pub. Health, to Bd. of Supervisors,

Cnty. of L.A., Ensuring the Safety and Well Being of

Workers at Industrial Facilities (Item No. A-1,

Agenda of May 26, 2020) (June 2, 2020), at 4,

https://tinyurl.com/h2e4hpse; Gustavo Arellano, As

Pigs Await Slaughter at Farmer John, Strangers Offer Water, Love and Comfort to the Doomed, L.A.

Times (Mar. 5, 2019, 9:00 AM), https://tinyurl.com/mrx4222s.

California also houses several other hog slaughter

and processing facilities: Yosemite Foods in Stockton,

Clausen Meat Company Inc. in Turlock, and Olson

Meat Plant in Orland. Pork, Yosemite Foods,

https://yosemitefoods.com/products/pork/ (last visited

Aug. 9, 2022); Products, Clausen Meat Co.,

https://clausenmeat.com/products/ (last visited Aug.

9, 2022); Premium Products, Olson Meat Co.,

https://www.olsonmeat.com/products (last visited

Aug. 9, 2022).

Additionally, Californians work at livestock auction houses throughout the State that sell pigs.

Transport workers, who both live and travel throughout the State, convey the swine to the auction sites

and slaughter facilities.

The practices Proposition 12 says cannot be used

to produce pork sold in the State2 would significantly

reduce the risk of these workers contracting zoonotic

disease. These practices are known to facilitate the

faster and more dangerous spread of disease among

2 These practices are: employing gestation crates that “prevent[]

[sows] from lying down, standing up, fully extending [their]

limbs, or turning around freely” and confining sows in “less than

24 square feet of usable floorspace,” Cal. Health & Safety Code

§§ 25990(b)(2), 25991(e)(1), 25991(e)(3), i.e., intensive confinement.

hogs, which can then spread to humans. 3 Making

matters worse, as recent experience with COVID-19

confirms, animal facilities in California are likely to

incubate zoonotic diseases and increase their spread

among the broader population.

Contrary to Petitioners’ presentation, states can

legislate to secure the health and safety of their population, as long as the laws do not discriminate

against interstate commerce and are not protectionist. South Dakota v. Wayfair, Inc., 138 S. Ct. 2080,

2093-94 (2018) (“[T]he Commerce Clause was designed to prevent states from engaging in economic

discrimination[.]”); Intervenor Resp’ts’ Br. at 11-21.

Yet even if the Court were to narrow states’ authority

and balance Proposition 12’s in-state interests

against the alleged out-of-state burdens, Proposition

12 should unquestionably survive. Given the significant risks to California’s workers, their families, and

communities produced by the intensive confinement

Proposition 12 addresses, it cannot be said that the

law’s “burden imposed on [interstate] commerce is

clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142,

143 (1970); see also Pet’rs’ Br. 44 (conceding the same

balancing test). Petitioners’ Pike argument rests on

their claim that Proposition 12’s in-state benefits are

“invalid or non-existent.” Pet’rs’ Br. 47. The Court

should thus affirm the dismissal of Petitioners’

dormant Commerce Clause claim, as these

3 Examples of zoonotic diseases transmissible from animals to

humans include swine flu, streptococcosis, and salmonellosis. Institutional Animal Care & Use Comm., Zoonoses Associated with

Swine,

Wash.

St.

Univ.

(Jan.

2021),

https://tinyurl.com/vrsysrmt.

allegations are implausible in light of the science on

zoonotic disease and worker health and safety detailed below. See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007).

ARGUMENT

Proposition 12 substantially furthers California’s

public health and safety by protecting workers who

interact with animals, carcasses, and meat products,

as well as those with whom they come into contact.

Extreme animal confinement—particularly the

conditions regulated by Proposition 12—increases the

risk of zoonotic diseases jumping from animals to people. See infra Sections I-II.

Without regulation, animal agriculture can thus

introduce diseases to workers, their families, their

communities, and the entire State. See infra Section

III. This is especially true in California, as pigs are

kept and cared for at auction houses throughout the

State, and California’s largest slaughterhouse is located in the midst of its largest population center. See

infra Sections II-III. As a result—setting aside that

states may act as laboratories of democracy and enact

laws concerning commerce that are not discriminatory or protectionist—Petitioners have not stated a

plausible claim that Proposition 12 violates the

dormant Commerce Clause. Its out-of-state burdens

cannot be said to outweigh its benefits. See infra Section IV.

Proposition 12 addresses intensive confinement that causes zoonotic disease to

spread among swine that will be sent to

California.

Breeding pigs confined (1) in gestation crates during pregnancy and (2) with less than twenty-four

square feet of space, as prohibited by Proposition 12,

are far more likely to contract zoonoses. Moreover, the

science is clear that those conditions make it more

likely their offspring that become pork products will

carry zoonoses. See, e.g., Andrew A. Hill et al., A Farm

Transmission Model for Salmonella in Pigs, Applicable to E.U. Member States, 36 Risk Analysis 461, 479

(2016) (“[B]reeding herd prevalence is likely to be a

strong predictor of national pig prevalence for many

MSs [member states][.]”); see also infra Sections I.A-B.

Thus, while Petitioners attack Proposition 12 because it limits the in-state sale of pork but addresses

breeding pigs’ conditions, and Petitioners claim

breeding pigs’ sole function is to produce offspring and

therefore they will not enter California, Pet’rs’ Br. 42,

in fact, Proposition 12 is a means to reduce the risk of

pigs meant to produce pork products bringing zoonoses into the State. Indeed, Petitioners do not dispute

that the animals born and raised alongside the sows

addressed by Proposition 12 are transported to the

State for slaughter and sale. See Pet. App. 204a (Complaint) ¶¶ 284-86 (alleging a “miniscule portion” of all

pork in the nation meets the requirements of Proposition 12). Proposition 12 ensures those are healthier

animals and thus less likely to infect California’s

workers, which also secures the health and safety of

California’s residents.

Hence, Petitioners’ assertion that Proposition 12 is

“based on philosophical preferences,” not in-state concerns, Pet’rs’ Br. 2, is not plausible. Proposition 12

meaningfully effectuates a valid state interest in

keeping out a known and proven risk to public health.

Gestation Crates

By prohibiting the in-state sale of meat from

breeding pigs kept in gestation crates and their “immediate offspring,” Proposition 12 improves the

health of swine that enter California. See Cal. Health

& Safety Code §§ 25990(b)(2), 25991(e)(1),

25991(e)(3). In particular, breeding pigs housed in individual crates during pregnancy are more likely to

experience stress that renders them more susceptible

to zoonotic disease, which they can transmit to their

offspring, and more likely to birth offspring with

weaker immune systems. Those offspring with

weaker immune systems are, in turn, more likely to

contract diseases at the breeding facility and elsewhere.

Gestation crates are “tiny, metal cage[s]” that confine breeding pigs, and in which they “can barely

move.” Alex Padilla, Sec’y of the State of Cal., Official

Voter Information Guide 70 (2018), https://tinyurl.com/ms34fsmd.

In these crates, sows experience chronic stress.

For instance, they cannot, “move [in] and investigate

in [the] confined conditions” and they “cannot exhibit

the behaviors that meet their specific needs, such as

rooting behavior, among others, so they exhibit abnormal behaviors (such as stereotypic behavior).” Mingyue Zhang et al., Effects of Confinement Duration and

Parity on Stereotypic Behavioral and Physiological

Responses of Pregnant Sows, 179 Physiology & Behav.

369, 369 (2017) (explaining how “confinement in locations such as gestation stalls is a chronic stressor to

sows”). In crates, sows also cannot “resolve conflict

with neighboring sows.” Verena Grün et al., Influence

of Different Housing Systems on Distribution, Function and Mitogen-Response of Leukocytes in Pregnant

Sows, 3 Animals 1123, 1124 (2013) (detailing experiences “presumed to cause [sows] . . . chronic stress”). 4

Such stress can “increase [a sow’s] likelihood of infection and illness.” Pew Comm’n on Indus. Farm Animal Prod., Putting Meat on the Table: Industrial

Farm Animal Production in America 13 (2008),

https://tinyurl.com/e62uft8r; Jeanette I. Webster

Marketon & Ronald Glaser, Stress Hormones and Immune Function, 252 Cellular Immunology 16, 19

(2008) (“Stress has been shown to have detrimental

effects on the immune system.”).

For example, within “an experimentally controlled

setting,” Grün et al. housed 33 sows in individual

crates, and then relocated some to group housing at

week four of gestation to “compare the effect of two

distinct housing systems for pregnant sows (confinement in individual crates and group-housing) on several measures of blood cellular immunity.” Grün et

al., supra, at 1125-26. The study found individually

housed sows displayed higher “cortisol levels”—

4 See also Xin Liu et al., A Comparison of the Behavior, Physiology, and Offspring Resilience of Gestating Sows When Raised in

a Group Housing System and Individual Stalls, Animals, July

12, 2021, at 4 (showing that “the stress hormone (ACTH, A,

COR) level of gestating sows housed in [individual stalls] was

higher than that of gestating sows housed in [group housing systems] throughout the whole gestation period”).

around 25% higher than sows in group housing—

which is associated with more stress, as “cortisol

measurements [are] an indicator of the stressfulness.”

Id. at 1125, 1133-35. Moreover, individually housed

sows had lower T cell subsets, which is associated

with a weaker immune system and thus less resistance to infection. Id. at 1134. The researchers concluded that “differences in the stressfulness of the environment” between crate and group housing probably explained the individually crated sows’ lower T

level subsets. Id. at 1136. 5

This conclusion is not unique. A study of 360 arbitrarily chosen sows found that “the animals reared in

single crates showed a constant decline in the expression of genes related to immune response.” Rossana

Capoferri et al., Comparison Between Single- and

Group-Housed Pregnant Sows for Direct and Indirect

Physiological, Reproductive, Welfare Indicators and

Gene Expression Profiling, 24 J. Applied Animal Welfare Sci. 246, 256 (2020). By contrast, group-housedsows showed no “modulation of their immune response.” Id. According to the authors, the sows’ incapacity “to form social relationships” in crates could

have contributed to “inducing the severe immunosuppression highlighted by [the] gene expression profiling.” Id. 6

5 See also Zhang et al., supra, at 375 (in experiment gauging im-

pact of concentration on sows, noting “a belief that long-term

stress states have an inhibitory effect on the immune system”).

6 Crate housing is also associated with raising a sow’s adrena-

line, which is an “effective indicator[] of stress in pigs.” See Yongdae Jeong et al., Improving Behavior Characteristics and Stress

Indices of Gestating Sows Housed with Group Housing Facility,

62 J. Animal Sci. & Tech. 875, 881-82 (2020) (“[E]pinephrine [i.e.,

Footnote continued on next page

Further, the harms sows experience because of

crate housing harm their offspring. Crate-housed

sows are more likely to birth offspring with weaker

immune systems, making them far more likely to contract diseases from their mother, other animals at the

breeding facility, or animals that will surround them

at the other facilities where they live until slaughter.

See M. Kulok et al., The Effects of Lack of Movement

in Sows During Pregnancy Period on Cortisol, Acute

Phase Proteins and Lymphocytes Proliferation Level

in Piglets in Early Postnatal Period, 24 Polish J. Veterinary Scis. 85, 90 (2021) (study “suggest[ed] that the

piglets from mothers kept in restriction movement

pens will have a weaker immunity barrier compared

to the piglets given birth by mothers kept in free

movement pens”).

This is because prenatal stress “acts on the fetus

through the mother’s body.” Id. at 86 (internal citations omitted). In one study, the offspring’s “prenatal

stress” was associated with a “significant decrease in

thymus weight,” even after thirty-five days of life,

which can weaken their resistance to infection. M.

Tuchscherer et al., Effects of Prenatal Stress on Cellular and Humoral Immune Responses in Neonatal

Pigs, 86 Veterinary Immunology & Immunopathology

195, 202 (2002) (providing that “sustained thymus

adrenaline] level at the gestation and post-farrowing stages were

decreased in the GHF [group-housing facility] compared to that

in CON [individual confinement stall].”). Adrenaline, in turn,

can suppress the immune system. See Lena Reiske et al., Interkingdom Cross-Talk in Times of Stress: Salmonella typhimurium Grown in the Presence of Catecholamines Inhibits Porcine Immune Functionality in vitro, Frontiers in Immunology,

Sept. 2020, at 1.

atrophy” is indicative of “long-term impairment of cellular immune function in prenatally stressed piglets”). 7

Consistent with this, Xin Liu et al. found that the

offspring of crate-housed sows as compared to grouphoused sows “suffered with a higher level of stress

and had lower [disease] resistance and resilience,”

which the authors opined “may be caused by the [individual stall]-housing-related stress experienced by

their mothers during gestation.” Xin Liu et al., supra,

at 6-7.

Correspondingly, piglets born to crate-housed

sows have been shown to be at higher risk for contracting infections at the breeding facility, including

zoonotic infections, from their mother. See E. Merlot

et al., Prenatal Stress, Immunity and Neonatal Health

in Farm Animal Species, 7 Animal 2016, 2020 (2013)

(noting that “epidemiological data suggest that individual housing during pregnancy may increase the

transmission of pathogens from the mother to the fetus or neonate”); see, e.g., id. (explaining that “compared with group-housed sows, animals housed in individual pens during pregnancy were found to be

more at risk for post-weaning multisystemic wasting

syndrome developing in their offspring,” which is

caused by the offspring contracting a virus (internal

citation omitted)).

7 See also Elodie Merlot et al., Improving Maternal Welfare During Gestation Has Positive Outcomes on Neonatal Survival and

Modulates Offspring Immune Response in Pigs, Physiology & Behav., May 2022, at 1-2 (“Prenatal stress occurs when maternal

stress directly influences the development of the fetus. In the

porcine species, prenatal stress induces post-natal changes

in . . . [piglets’] immune response.”).

Confinement with less than 24

square feet of usable floor space.

Proposition 12 also prohibits the in-state sale of

meat from sows housed “with less than 24 square feet

of usable floorspace per pig,” a prohibition that directly reduces the risk of all pigs at the breeding facility contracting diseases, including zoonoses. Cal.

Health & Safety Code § 25991(e)(3). Indeed, close

proximity is associated with both the spread of disease generally, as well as with the development of

more virulent, novel, and/or antibiotic-resistant

strains of those diseases.

More Transmission

As Judge J. Harvie Wilkinson III observed in describing what he called “the problem of viral disease”

in concentrated animal feeding operations, “[i]t is

well-established that close confinement leads to the

‘increased risk of the spread of disease’ between hogs.”

McKiver v. Murphy-Brown, LLC, 980 F.3d 937, 980

(4th Cir. 2020) (Wilkinson, J., concurring) (internal citation omitted); see also Dana Cole et al., Concentrated Swine Feeding Operations and Public Health:

A Review of Occupational and Community Health Effects, 108 Env’t Health Persps. 685, 685 (2000) (noting

the “greater opportunities for horizontal spread of infectious agents among closely confined animals”).

One study concluded that “high prevalence of [Yersinia] enterocolitica 8 was associated with high [pig]

“Yersinia enterocolitica . . . is manifested as acute diarrhea,

mesenteric adenitis, terminal ileitis, and pseudoappendicitis. In

rare cases, it can even cause sepsis.” Muhammed Aziz & Varun

S. Yelamanchili, Yersinia Enterocolitica, StatPearls (July 4,

2022), https://tinyurl.com/2p96hkjn.

stocking density.” Riikka Laukkanen et al., Contamination of Carcasses with Human Pathogenic Yersinia

Enterocolitica 4/O:3 Originates from Pigs Infected on

Farms, 6 Foodborne Pathogens & Disease 681, 686

(2009). Another found that “groups of finisher pigs

categorized as having high Salmonella prevalence

were more likely to be stocked at higher pig densities . . . at the time of sampling, compared to low prevalence groups.” Julie Funk & Wondwossen Abebe Gebreyes, Risk Factors Associated with Salmonella Prevalence on Swine Farms, 12 J. Swine Health & Prod.

246, 249 (2004). In addition, a meta-analysis concluded that ten articles showed “[h]igher herd and pig

densities and higher number of pigs in farms or agricultural fairs were associated with higher influenza

prevalence.” Eugénie Baudon et al., Epidemiological

Features of Influenza Circulation in Swine Populations: A Systematic Review and Meta-analysis, PLoS

ONE, June 2017, at 16.

Close confinement can increase disease transmission among pigs in several ways. Swine “density” increases animal “contact rates,” which creates more

opportunities for diseases to spread among the animals. Jason R. Rohr et al., Emerging Human Infectious Diseases and the Links to Global Food Production, 2 Nature 445, 451 (2019). In addition, high concentration results in contacts of longer duration

among the pigs, which also makes “animal-to-animal

transmission” more probable. Kendall P. Myers et al.,

Are Swine Workers in the United States at Increased

Risk of Infection with Zoonotic Influenza Virus?, 42

Clinical Infectious Diseases 14, 18 (2006). In confined

settings, viruses may also remain viable for longer periods of time due to the “reductions in ventilation and

sunshine exposure” that accompany such settings. Id.

This means that there is more viral load in the air at

any given time that can transmit disease from one animal to another. “The buildup of excrement [in a close

confinement facility is also] . . . ‘conducive to … breeding flies and insects,’ which are known ‘vectors of disease.’” McKiver, 980 F.3d at 980 (Wilkinson, J., concurring) (internal citation omitted).

Transmission of More Severe,

Novel, and/or Antibiotic-Resistant Strains

Besides increasing the risk of infection, intensive

confinement also renders sows and their offspring

more likely to carry more damaging strains. In concentrated pig facilities, “numerous transmission

events” and “co-infection with several strains of pathogens” result in “infectious agents . . . evolv[ing] to become more virulent.” Pew Comm’n on Indus. Farm

Animal Prod., supra, at 13. 9

Sows in intensive confinement are also more likely

to carry novel strains capable of spreading infection

faster among people. See id. (“[T]he continual cycling

of viruses and other animal pathogens in large herds

or flocks increases opportunities for the generation of

novel viruses through mutation or recombinant

9 See also Rohr et al., supra, at 451 (“host densities increas[ing]

and transmission becom[ing] more frequent’’ results in “higher

virulence” and thus greater “incidence and severity of infectious

disease” (emphasis added)); Weidong Yue et al., Prevalence of

Porcine Respiratory Pathogens in Slaughterhouses in Shanxi

Province, China, 7 Veterinary Med. & Sci. 1339, 1344 (2021)

(“[I]nteractions between pathogens have . . . been indicated to

increase disease severity.”).

events that could result in more efficient human-tohuman transmission.”). 10

Further, antibiotic-resistant strains are more

likely to emerge among concentrated swine. Because

animals in intensive confinement have a greater

chance of transmitting disease among one another,

these operations are more likely to apply—and overuse—antibiotics on the herd. See Cole et al., supra, at

685 (stating that “antimicrobials are useful to decrease the spread of infectious disease between animals” given “greater opportunities for horizontal

spread of infectious agents among closely confined animals”); see also McKiver, 980 F.3d at 980 (Wilkinson,

J., concurring) (explaining that “[concentrated animal

feeding operations] commonly administer antibiotics

at subtherapeutic concentrations” as a means of “compensat[ing] for the stressors of close confinement” (internal citation omitted)).

In turn, “broad application of antimicrobials to

farm animals can . . . result[] in the evolution of

groups of resistant organisms.” Cole et al., supra, at

685; Mary J. Gilchrist et al., The Potential Role of

Concentrated Animal Feeding Operations in Infectious Disease Epidemics and Antibiotic Resistance,

115 Env’t Health Persps. 313, 313 (2007) (“Increased

antibiotic resistance can be traced to the use and overuse of antibiotics. . . . Several recent studies clearly

demonstrate the transmission of multidrug-resistant

10 See also Myers et al., supra, at 5-6 (When “tens of thousands

of susceptible pigs . . . are housed in confinement facilities,

[they] serv[e] as a tremendous potential reservoir of susceptible

animals, whose dense populations may hasten viral mutation

and reassortment.”).

pathogens from swine to humans.”); McKiver, 980

F.3d at 980 (Wilkinson, J., concurring). 11

California thus has a valid basis for objecting to

intensive confinement, as it is proven to increase risk

of infection—including more aggressive, harder-totreat strains—among pigs that will enter California.

II.

With fewer intensively confined swine entering California because of Proposition

12, the law will help protect the State’s

workers from zoonoses.

By protecting the pigs that produce pork products

in California, Proposition 12 correspondingly protects

in-state animal workers from disease.

Petitioners do not contest that many pigs entering

California will be subjected to the disease-spreading

conditions Proposition 12 regulates. E.g., Pet’rs’ Br. 811. Slaughterhouse workers, drivers, and livestock

auction employees all live in California, where they

interact with the animals or their carcasses prior to

the meat entering the marketplace, including in their

home State. These workers will thus have a meaningfully increased risk of immediate infection if Proposition 12 cannot take effect—to say nothing of the increased risk to others with whom the workers interact. See infra Section III. In sum, contrary to Petitioners’ rhetoric, the in-state public health and safety benefits are far from “illusory and invalid.” Pet’rs’ Br. 20.

11 Antibiotic-resistant infection is not only dangerous for swine,

but also poses a serious human health threat to humans. See infra pp. 18-19.

A. Slaughterhouse Workers

California’s slaughterhouse workers are much

more likely to contract zoonotic disease without Proposition 12, as they are regularly exposed to infections

that spread among the animals. See E.S. Johnson et

al., Non-Malignant Disease Mortality in Meat Workers: A Model for Studying the Role of Zoonotic Transmissible Agents in Non-Malignant Chronic Diseases

in Humans, 64 Occupational & Env’t Med. 849, 849

(2007) (“Within the meat industry, exposures to

transmissible agents are expected to be highest for

workers employed in manufacturing establishments

where animals are slaughtered and processed.”).

For example, a study found that the “overall prevalence of MRSA [methicillin-resistant Staphylococcus

aureus] carriage identified in [the Smithfield swine

slaughter/processing plant worker] study population

in 2011 was higher than the estimate for the general

U.S. population.” Ricardo Castillo Neyra et al., Multidrug-Resistant and Methicillin-Resistant Staphylococcus Aureus (MRSA) in Hog Slaughter and Processing Plant Workers and Their Community in North

Carolina (USA), 122 Env’t Health Persps. 471, 476

(2014). MRSA can precipitate a “staph infection that

is difficult to treat because of resistance to some antibiotics,” resulting in serious illness or death. Methicillin-Resistant Staphylococcus Aureus (MRSA), Ctrs.

for Disease Control & Prevention (Feb. 5, 2019),

https://tinyurl.com/5hdte8s4 (“Staph infection . . . can

cause serious infections that can lead to sepsis or

death.”); MRSA Infections (Methicillin-Resistant

Staphylococcus Aureus), Penn Med. (Sept. 1, 2021),

https://tinyurl.com/27uk9kuw

(“Pneumonia

and

bloodstream infections due to MRSA are linked with

high death rates.”). 12

Another study observed “an increased frequency of

antibodies against Y[ersinia] enterocolitica O:3 in the

workers of abattoirs slaughtering swine,” which contributed to the researchers’ conclusion that “yersinia

infections form an occupational health risk in the

workers slaughtering swine at abattoirs.” Riitta Merilahti-Palo et al., Risk of Yrsinia Infection Among

Butchers, 23 Scandinavian J. Infectious Diseases 55,

58-60 (1991); see also Laukkanen et al., supra, at 682,

684 (concluding that “the high prevalence of pathogenic Y. enterocolitica 4/O:3 in pigs appears to predispose to carcass contamination at the slaughterhouse,”

meaning slaughterhouse workers who handle pig carcasses are at increased risk of contracting the disease).

Researchers have also noted that “Salmonella can

be transmitted to humans through the slaughtering

process,” and “[m]eat packing . . . workers are at

greater risk of acquiring infection because of their

12 The prospect of pigs transmitting antibiotic-resistant infections to slaughterhouse workers is especially concerning, as

“[a]ntimicrobial resistance is a critical issue that significantly

impacts healthcare quality, patient safety, and public health.”

Soc’y for Healthcare Epidemiology of Am. et al., Policy Statement

on Antimicrobial Stewardship by the Society for Healthcare Epidemiology of America (SHEA), the Infectious Diseases Society of

America (IDSA), and the Pediatric Infectious Diseases Society

(PIDS), 33 Infection Control & Hosp. Epidemiology 322, 323-24

(2012). Over 35,000 people in the United States die annually

from such infections as of 2019. See U.S. Dep’t of Health. & Hum.

Servs., Antibiotic Resistance Threats in the United States vii

(2019), https://tinyurl.com/2tcrrk53.

close access to animals[.]” Gilchrist et al., supra, at

315.

Thus, Petitioners’ efforts to diminish the public

health and safety effects of Proposition 12 are factually false. They assert that because Proposition 12 is

focused on the breeding facility and there is a “[g]eographical and temporal” separation between that facility and slaughter, the zoonotic risks addressed by

Proposition 12 have “disappeared” by the time the hog

enters California. Pet’rs’ Br. 12-13. Yet, as shown

above, slaughterhouse workers are at risk of contracting the same diseases as those spread by intensive

confinement at the breeding facility—to say nothing

of how intensive confinement in the breeding facility

weakens hogs’ immune systems and thus renders

them more vulnerable to disease elsewhere. See supra

Section I. Indeed, studies have shown that pigs with

intestinal Campylobacter by the age of 11 weeks remain carriers until slaughter. See C. R. Young et al.,

Enteric Colonization Following Natural Exposure to

Campylobacter in Pigs, 68 Rsch. in Veterinary Sci. 75,

77 (2000)13; see also Scherer et al., Time Course of Infection with Salmonella typhimurium and Its Influence on Fecal Shedding, Distribution in Inner Organisms, and Antibody Response in Fattening Pigs, 71 J.

Food Protection 699, 700 (2008) (study “show[ed] that

a Salmonella typhimurium DT104 infection

13 Campylobacter can cause campylobacteriosis, which is typi-

cally “self-limiting” but “may . . . lead to severe illnesses including bacteremia, meningitis, irritable bowel syndrome, Guillian–

Barré syndrome, or arthritis.” Jae-Ho Guk et al., Hyper-Aerotolerant Campylobacter coli From Swine May Pose a Potential

Threat to Public Health Based on Its Quinolone Resistance, Virulence Potential, and Genetic Relatedness, Frontiers in Microbiology, July 16, 2021, at 2.

experimentally induced in piglets aged 42 days with

an oral exposure . . . can persist until market age”).

Moreover, there are many ways slaughterhouse

workers can contract the zoonoses addressed by Proposition 12 from pigs or their carcasses. Infections can

enter through slaughterhouse workers’ broken skin.

For example, these workers can contract bacterial infection leptospirosis—which causes “fever, headache,

abdominal and muscle pain, vomiting, diarrhea, jaundice, and rash” and can result in “hemorrhagic pneumonia, liver and kidney failure” and even death—

when their “abraded skin” comes into “contact with

[an animal’s] contaminated urine” during slaughter.

Zoonoses Associated with Swine, supra.

Slaughterhouse workers can also contract zoonoses through inadvertent ingestion of animal waste or

tissue. Id. For example, “Salmonellosis, campylobacterosis, cryptosporidiosis, giardiasis, balantidiasis

and infections with pathogenic E. coli” can all infect

humans via “contact and accidental ingestion of fecal

material from infected animals.” Id.; see also Elizabeth Anne Jessie Cook et al., Prevalence and Risk

Factors for Exposure to Toxoplasma Gondii in Slaughterhouse Workers in Western Kenya, BMC Infectious

Diseases, Sept. 2021, at 2 (“[s]laughterhouse workers

are considered a high-risk group for T. gondii [Toxoplasma gondii] exposure because of their regular contact with raw meat,” which can cause vision loss and,

for the immunocompromised, “seizures and loss of

consciousness”).

Slaughterhouse workers may additionally acquire

infections through inhalation of aerosols, such as

Staphylococcus aureus. Ctr. for Food Sec. & Pub.

Health, Zoonotic Diseases of Swine, Iowa St. Univ.

Coll. Veterinary Med., https://tinyurl.com/2p898wvp

(last visited Aug. 12, 2022). A 2009-10 study of livestock-antibiotic resistant Staphylococcus aureus

(“MRSA”), for example, found MRSA “in 88% of the

cultured air samples from the lairage area” of slaughterhouses where live animals are stored to await

slaughter, and thus found it “likely that workers

[there] are regularly exposed to airborne MRSA.”

Maarten J. Gilbert et al., Livestock-Associated MRSA

ST398 Carriage in Pig Slaughterhouse Workers Related to Quantitative Environmental Exposure, 69 Occupational & Env’t Med. 472, 476 (2012); see also

Johnson et al., supra, at 852 (wholesale manufacturing meat workers experience “high aerosol . . . exposures to transmissible agents,” and are therefore at

“high risk” of infectious agents entering their circulatory system and “spread[ing] to target organs”).

As noted above, it is particularly logical for California to have been concerned with the risks intensive

confinement presents to slaughterhouse workers.

There are at least four pork slaughterhouses in the

State, including the Farmer John plant in Vernon.

See supra pp. 3-4. 14 Absent Proposition 12, all of their

14 Smithfield recently sold Farmer John and states it plans to

cease its operations there in 2023. Associated Press, Farmer

John Meatpacking Plant in Vernon to Close Next Year, KTLA,

June 10, 2022, https://tinyurl.com/3uh5b42y. The public record

is silent as to whether another processor will take over operations or the facility will close. However, even if Farmer John

were to close and Petitioners to argue this alters California’s interest in Proposition 12—arguments Petitioners have not

made—this would do nothing to negate that California appropriately exercised its police power to protect residents when it enacted Proposition 12, and that the law would continue to protect

workers in other in-state slaughterhouses and animal facilities.

See supra p. 4.

workers will face considerable risk of contracting serious infection from swine raised in extreme confinement.

Livestock Auction Workers (and

Auction Attendees)

Livestock auction workers and attendees in California are also at high risk of contracting diseases

from pigs confined in ways inconsistent with Proposition 12, although Petitioners entirely fail to address

their roles and the risks their work presents to the

State. Livestock auctions are held regularly throughout California and can involve a substantial number

of pigs that came from intensive confinement, meaning that Proposition 12 would reduce the probability

of animal-to-human transmission at these auction

houses. See Pet’rs’ Br. 3, 9 (vast majority of pigs born

to sows that were housed in ways inconsistent with

Proposition 12).

There are many opportunities for animal-to-human transmission at these events. Fresno Livestock

Commission sells an “[a]verage [of] 200 pigs per

week.” Schedule, Fresno Livestock Comm’n, LLC,

https://tinyurl.com/2kpm34cv (last visited Aug. 9,

2022). The Escalan Livestock Market and Petaluma

Livestock Auction Yard also hold weekly pig sales.

Auction Schedule, Escalon Livestock Mkt., https://tinyurl.com/4mzmsfdm (last visited Aug. 9, 2022); Sale

Schedule, Petaluma Livestock Auction Yard,

https://tinyurl.com/mryrbzht (last visited Aug. 9,

2022). The Modesto Livestock & Poultry Auction even

advertises its weekly auction where it sells pigs as an

event with “[o]ver capacity crowds, with lots of action.” Modesto Livestock & Poultry Auction, Modesto

Livestock & Flea Mkt., https://tinyurl.com/yfew7vvd

(last visited Aug. 9, 2022).

Workers will come into contact with these pigs, as

they must be housed and cared for from delivery until

sale. The public, such as the purchaser, will also be

exposed. Therefore, for many of the same reasons

slaughterhouse workers are at risk, these staff and

attendees are more likely to contract disease when the

pigs are confined in ways that contradict Proposition

12.

Livestock Transport Workers

Numerous individuals who transport pigs into and

around the State for sale and slaughter are also at increased risk of infection without Proposition 12. See

Michael Greger, The Long Haul: Risks Associated

with Livestock Transport, 5 Biosecurity & Bioterrorism: Biodefense Strategy, Prac., and Sci. 301, 301

(2007) (“The Food and Agriculture Organization (FAO) of the United Nations describes live animal transport as ‘ideally suited for spreading disease[.]’” (internal citation omitted)). Truckers are at

risk of inhaling infectious agents, as these workers

necessarily come into contact with live animals during transport, especially in loading the animals onto

and off the vehicle. See, e.g., 4 Variant Virus Infections

Linked to Pig Exposures, Ctrs. for Disease Control &

Prevention

(Aug.

12,

2016),

https://tinyurl.com/2hvuwnxp (noting swine flu can transmit

to humans if “an infected pig . . . coughs or sneezes

and droplets with influenza virus in them spread

through the air”).

This risk is compounded by the fact that the trucks

are “poorly ventilated[,] stressful environment[s].”

Greger, supra, at 301 (quoting Animal Prod. & Health

Div., Food & Agric. Org. of the United Nations, Improved Animal Health for Poverty Reduction & Sustainable

Livelihoods

(2002),

https://tinyurl.com/2p95bdst). Also, pigs in transport travel for

long intervals. Id. at 301 (citing Terrance M. Wilson

et al., Agroterrorism, Biological Crimes, and Biological Warfare Targeting Animal Agriculture, in Emerging Diseases of Animals 23 (Corrie Brown & Carole

Bolin eds., 2000)) (“Before they are slaughtered, U.S.

livestock may travel an average of 1,000 miles.”). 15

These conditions create a perfect storm for disease

transmission among the pigs and to the truckers (or

those to whom they deliver the animals).

Pigs even leave pathogens on the truck after

transport, which can infect the truckers as they move

to the next load. Cleaning and disinfecting the vehicle

“is a very difficult task to carry out in practice.” Laura

Valeria Alarcón et al., Biosecurity in Pig Farms: A Review, Porcine Health Mgmt., Jan. 2021, at 5. “[I]t has

been shown that a high percentage of slaughterhouse

trucks were positive for Salmonella [even] after cleaning and disinfection procedures[.]” Id. In addition,

cleaning the vehicle itself is another way animal

transport workers can contract transmissible zoonotic

agents.

15 See also Mhairi A. Sutherland et al., Effects of Transport at

Weaning on the Behavior, Physiology and Performance of Pigs, 4

Animals 657, 658 (2014) (“During transport pigs are potentially

exposed to numerous stressors including handling at loading and

unloading, fluctuating temperatures, mixing with unfamiliar

pigs (and ensuing social stress), feed and water withdrawal, exposure to a novel environment, vibrations and noise[.]”); supra

Section I (stressed pigs are more vulnerable to disease).

In short, Proposition 12 would decrease the odds

of in-state animal workers contracting zoonotic infections, so Petitioners’ theory that the law would have

no effect on human health in California is false.

III.

California’s pork industry can incubate

and spread diseases among its employees

and in the surrounding population.

By reducing the slaughter and sale of pork from

diseased pigs and thereby protecting California’s

workers, Proposition 12 will also protect numerous

other California residents from disease. This is because an infection that enters an animal facility in

California, especially an infection that circulates

among employees, will jump to their households and

the greater population. Proposition 12 thus reduces

the potential for community transmission, as corroborated by slaughterhouses’ experience with COVID19. The law also limits other disease pathways into

California communities, such as spread from

transport trucks to those riding in vehicles behind

them. Put simply, Proposition 12 is not only a logical

expression of the State’s police power to protect the

health and safety of its workers, but also its power to

protect all California residents.

The COVID-19 pandemic highlights that disease

spreads efficiently among slaughterhouse workers.

One study of a “large outbreak of COVID-19” at a pork

processing facility explained why—the authors deduced that the “high employee density in work and

common areas” and “prolonged close contact between

employees over the course of a shift” may have contributed to the facility’s high number of COVID-19 infections. Jonathan Steinberg et al., COVID-19 Outbreak Among Employees at a Meat Processing Facility

– South Dakota, March-April 2020, Morbidity & Mortality Wkly. Rep., Ctrs. for Disease Control & Prevention (Aug. 7, 2020), https://tinyurl.com/mvyxedv5.

“Production line” workers at slaughterhouses can be

less than six feet apart throughout their shift. Id. Accordingly, they are at high risk of inhaling pathogenic

respiratory droplets from one another. See id.; see also

Nat’l Fed’n of Indep. Bus. v. Dep’t of Lab., Occupational Safety & Health Admin., 142 S. Ct. 661, 666

(2022) (noting the COVID-19-related “risks associated with working in particularly crowded or cramped

environments”).

By enabling disease to proliferate in the plant,

slaughterhouses increased the risk of disease in the

community. One study found that “[m]eatpacking-dependent counties observed nearly 10 times more

COVID-19 cases in early May [2020], compared to

other manufacturing-dependent counties.” U.S. Dep’t

of Agric., Econ. Rsch. Serv., COVID-19 Working Paper: Meatpacking Working Conditions and the Spread

COVID-19,

6-7

(2021),

https://tinyurl.com/55ameyty (“By the end of May, 2020, our

analysis estimates that counties with at least 20 percent of their workforce employed in the meatpacking

industry comprised 13 of the 25 rural counties with

the highest rates of COVID-19 per 100,000 people and

8 of the top 10.”). A study published by the National

Academy of Sciences estimates that the additional

“COVID-19 infections and deaths related to livestock

plants” as of July 21, 2020, i.e., infections that would

not have occurred without the disease first spreading

in the plants, “[we]re 236,000 to 310,000 (6 to 8% of

all US cases) and 4,300 to 5,200 (3 to 4% of all US

deaths), respectively, with the vast majority occurring

among people not working at livestock plants.”

Charles A. Taylor et al., Livestock Plants and COVID19 Transmission, Proc. of the Nat’l Acad. of Scis. of

the

U.S.

(Nov.

19,

2020),

https://tinyurl.com/2naxdkce. The fact that slaughterhouses

can initiate such significant disease transmission in a

community is especially troubling in a highly populated metropolis like Los Angeles County, in which

Vernon and the Farmer John plant are located.

QuickFacts Los Angeles County, California, U.S. Census Bureau, https://tinyurl.com/u6dnarwp (last visited Aug. 12, 2022) (county population is more than

nine million).

Slaughterhouses can and will spread other zoonotic diseases just as they spread COVID-19. One study

found that household members of slaughterhouse

workers were more likely to carry antibiotic-resistant

Staphylococcus aureus than other community members, “rais[ing] concerns about potential flow of [bacteria with antibiotic-]resistance genes within households of hog workers.” Yaqi You et al., Genomic Differences Between Nasal Staphylococcus Aureus From

Hog Slaughterhouse Workers and Their Communities,

PLoS ONE, Mar. 2018, at 13 (determining “nasal S.

aureus from household members of hog workers . . . showed greater diversity of antibiotic resistance genes and higher prevalence of carriage of

multiple resistance genes than community resident[s]”); Meldra Ivbule et al., Presence of MethicillinResistant Staphylococcus Aureus in Slaughterhouse

Environment, Pigs, Carcasses, and Workers, 61 J. Veterinary Rsch. 267, 275 (2017) (indicating “[t]he high

presence of MRSA in pigs is a potential professional

hazard for staff working in the meat production

chain,” and that “[h]uman colonization implies that

carriers become a staphylococcal reservoir and may

transfer the infection to others” (emphasis added)). 16

Proposition 12 not only protects against disease

expanding from slaughterhouses to population centers, but also against zoonoses entering the greater

population through transport. Johns Hopkins School

of Public Health researchers determined that when

intensively confined animals are carried along a

state’s roads they place all drivers at risk. Specifically, when the researchers “drove cars, windows

down, behind trucks that were transporting broiler

chickens from farms to slaughterhouses in Virginia

and Maryland,” they “documented antibiotic-resistant bacteria in the air inside the cars, as well as

on the top of soda cans in the cars’ cupholders.” David

O. Wiebers & Valery L. Feigin, What the COVID-19

Crisis Is Telling Humanity, 54 Neuroepidemiology

283, 284-85 (2020) (citing Ana M. Rule et al., Food Animal Transport: A Potential Source of Community Exposures to Health Hazards From Industrial Farming

(CAFOs), 1 J. Infection & Pub. Health 33, 33-39

(2008)).

Indeed, given the risk that zoonotic diseases will

spread in slaughterhouses and similar environments

and then spread throughout neighboring communities, there is reason to think Proposition 12 would not

16 See also Gregory C. Gray et al., Swine Workers and Swine Influenza Virus Infections, 13 Emerging Infectious Diseases 1871,

1877 (2007) (observing “increased occupational risk of swine influenza virus infection for [swine-exposed, predominantly farm]

workers and their nonswine-exposed spouses” (emphasis added));

Myers et al., supra, at 18 (recognizing in connection with swine

workers on farms that “[a]fter work, [such workers] may readily

communicate [a novel zoonotic] virus to their family members

and neighbors”).

only protect public health in California, but could also

prevent the next pandemic. See Wenjun Ma et al., The

Pig as a Mixing Vessel for Influenza Viruses: Human

and Veterinary Implications, 3 J. of Molecular & Genetic Med. 158, 163 (2009) (“[T]he creation of novel

reassortant swine influenza viruses with zoonotic and

pandemic potential could . . . happen in modern swine

facilities in the backyard of a highly industrialized

country in North America[.]”). 17

For example, as intensive confinement “has become a global phenomenon, a host of avian influenza

(bird flu) viruses, including H5N1, have emerged in

countries with large-scale industrial poultry operations.” Wiebers & Feigin, supra, at 284. If a zoonotic

outbreak among slaughterhouse workers in California escalates to pandemic scale, California is among

the many states (and countries) that would shoulder

catastrophic public health and economic consequences. Thus, through Proposition 12 California is

protecting its people from immediate infection, as

well as from the longer-term risk of overrun hospitals.

An overburdened healthcare system would in turn deteriorate Californians’ health in other ways and deplete the State’s public fisc.

IV.

The only plausible conclusion is that

Proposition 12 is a constitutional expression of California’s police powers to protect the State.

Respondents accurately explain that states are

free to pass laws so long as they are not protectionist

17 See also Myers et al., supra, at 14 (advising that “[s]wine work-

ers . . . be included in pandemic surveillance and in antiviral and

immunization strategies”).

or discriminatory against interstate commerce, and

Proposition 12 should survive on this basis alone.

State Resp’ts’ Br. 9 (identifying “prohibiting protectionist laws that discriminate against interstate commerce” as “the core concern of the dormant Commerce

Clause”); Intervenor Resp’ts’ Br. 11-21. Yet, were the

Court to entertain Petitioners’ request that it examine the effects of the law, the foregoing wealth of evidence demonstrates how Proposition 12 would benefit

California and, for this reason, should also stand.

Indeed, Petitioners do not and could not dispute

that states may defend their internal public health

and safety. See Pet’rs’ Br. 36 (asserting “States may

exercise ‘police powers to protect the health and

safety of their citizens’” and that “[t]hey enjoy ‘great

latitude’ to do so” (first quoting Hill v. Colorado, 530

U.S. 703, 715 (2000); then quoting Gonzales v. Oregon, 546 U.S. 243, 270 (2006))). The constitutional legitimacy of states shielding their inhabitants from

threats to public health is rooted in this Court’s ageold precedent. In Bowman v. Chicago & Northwestern

Railway Co., this Court pronounced that “the states

have power to provide by law suitable measures to

prevent the introduction into the states of articles of

trade which, on account of their existing condition,

would bring in and spread disease, pestilence, and

death[.]” 125 U.S. 465, 489 (1888). In Clason v. Indiana, this Court reiterated that “[t]he power of the

state to prescribe regulations which shall prevent the

production within its borders of . . . articles as would

spread disease and pestilence, is well established.”

306 U.S. 439, 443 (1939) (quoting Sligh v. Kirkwood,

237 U.S. 52, 59 (1915)). And more recently, the Court

indicated that its deference to local health and safety

interests endures, observing that “[t]he opinions of

the Court through the years have . . . recogniz[ed]

that incidental burdens on interstate commerce may

be unavoidable when a State legislates to safeguard

the health and safety of its people.” City of Philadelphia v. New Jersey, 437 U.S. 617, 623-24 (1978).

Proposition 12 is a public health measure. By prohibiting the in-state sale of meat from breeding pigs

and their offspring housed in intensive confinement,

the law will protect California’s workers and residents from zoonoses, and the State from life-threatening and financially devastating outbreaks. See supra

Sections I-III. Therefore, Petitioners’ allegation that

Proposition 12 has no positive impact on California

lacks logic. Pet. App. 232a (Complaint) ¶¶ 465, 467

(alleging that Proposition 12 does not “advanc[e] any

legitimate local interest,” and specifically claiming it

“has no connection to human health”).

California need not wait until another pandemic

strikes. It may prospectively prevent the local harms

that will be caused by intensive confinement. See

Maine v. Taylor, 477 U.S. 131, 148 (1986) (“[T]he constitutional principles underlying the commerce clause

cannot be read as requiring the State of Maine to sit

idly by and wait until potentially irreversible environmental damage has occurred . . . before it acts to

avoid such consequences.” (internal citation omitted)).

Because, at the least, the Court should balance the

in-state interests against the alleged out-of-state concerns, and Petitioners’ balancing argument depends

on Proposition 12 lacking any connection to local

health and safety, their challenge must fail. Ashcroft

v. Iqbal, 556 U.S. 662, 663-64 (2009) (“[D]etermining

whether a complaint states a plausible claim is

context specific, requiring the reviewing court to draw

on its experience and common sense.”). Proposition

12’s health and safety benefits are well proven.

CONCLUSION

For the aforementioned reasons and those given in

Respondents’ briefs, amici support Respondents’ request for affirmance.

Respectfully submitted,

DAVID S. MURASKIN

Counsel of Record

PUBLIC JUSTICE

1620 L St. NW, Suite 630

Washington, DC 20036

(202) 797-8600

dmuraskin@publicjustice.net

LEORA N. FRIEDMAN

TYCKO & ZAVAREEI LLP

1828 L Street NW, Suite 1000

Washington, DC 20036

(202) 973-0900

Counsel for Amici Curiae

August 15, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.