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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Text

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 AMERICAN PUBLIC HEALTH

ASSOCIATION, INFECTIOUS DISEASES

SOCIETY OF AMERICA, CENTER FOR FOOD

SAFETY, ET AL. AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

————

Henry Weisburg

Counsel of Record

Matthew G. Berkowitz

SHEARMAN & STERLING LLP

599 Lexington Avenue

New York , NY 10022

212.848.4193

hweisburg@shearman.com

matt.berkowitz@shearman.com

Counsel for all Amici Curiae

TABLE OF CONTENTS

Table of Authorities

Interests of Amici Curiae

Summary of Argument

Argument

I. The Intensive Confinement of Sows Poses a

Profound Danger to Food Safety and Public

Health In California

A. Intensive Confinement of Sows Is Directly

Linked to Contaminated Pork, A Major

Source of Foodborne Illness in the U.S. and

California

B. The Intensive Confinement of Sows

Increases Pathogen Virulence And

Facilitates The Transmission of Pathogens

And Disease To Humans

II. Proposition 12 Mitigates The Risks To Food

Safety and Public Health Caused By Intensive

Pig Confinement

Conclusion

TABLE OF AUTHORITIES

Other Authorities

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(2015). ..................................................................... 26

Agnieszka Chlebicz & Katarzyna Śliżewska,

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2021). ................................................................ 13, 27

iii

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Arie H. Havelaar et al., Attribution of Foodborne

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................................................................................ 31

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Evelyne Boscher et al., Prevalence and Distribution of

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Eystein Skjerve et al., Control of Yersinia

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Francesca Romana Massacci et al., Transport to the

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German B. Vigo et al., Salmonella enterica

Subclinical Infection: Bacteriological, Serological,

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Giuseppe Merialdi et al., Livestock-associated

methicillin-resistant Staphylococcus aureus (LAMRSA) spa type t127, Sequence Type (ST)1, quickly

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Greg Cima, Organization finds Yersinia

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Harini Sooryanarain et al., Hepatitis E Virus in Pigs

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26 EMERGING INFECTIOUS DISEASES 354 (Feb.

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Hepatitis E, WHO (June 24, 2022), https://www.who.

int/news-room/fact-sheets/detail/ hepatitis-e. ....... 31

vii

I. Alpigiani et al., The associations between animalbased welfare measures and the presence of

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ANIMAL WELFARE 355 (2016). .......................... 18, 27

J.L. Salak-Johnson et al., Space allowance for

gestating sows in pens: Behavior and immunity, 90

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J.L. Self et al., Outbreaks attributed to pork in the

United States, 1998-2015, 145 EPIDEMIOL INFECT.

2980 (2017). ........................................................ 9, 25

J.M. Lyte & M. Lyte, Review: Microbial

endocrinology: intersection of microbiology and

neurobiology matters to swine health from infection

to behavior, 13 ANIMAL 2689 (2019). ..................... 13

J.P. Dubey et al., Prevalence of Viable Toxoplasma

gondii in Beef, Chicken, and Pork From Retail Meat

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Jae-Ho Guk et al., Hyper-Aerotolerant Campylobacter

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.................................................................. 14, 19, 20

Joana Campos et al., Non-typhoidal Salmonella in

the Pig Production Chain: A Comprehensive

Analysis of Its Impact on Human Health, 8

PATHOGENS Art. No. 1:19 (2019)............................ 22

John A. Painter et al., Attribution of Foodborne

Illnesses, Hospitalizations, and Deaths to Food

Commodities by using Outbreak Data, United

States, 1998-2008, 19 EMERGING INFECTIOUS

DISEASES 407 (2013)................................................. 9

viii

John R. Rohr et al., Emerging Human Infectious

Diseases and the Links to Global Food Production,

2 NATURE SUSTAINABILITY 445 (2019) available at

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Kathrin Scherer et al., Time Course of Infection with

Salmonella Typhimurium and Its Influence on

Fecal Shedding, Distribution in Inner Organs, and

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La’Chia Harrison et al., Presence of hepatitis E virus

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J. FOOD MICROBIOLOGY 109033 (2021). ................. 32

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xii

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INTERESTS OF AMICI CURIAE1

The American Public Health Association

(“APHA”) champions the health of all people and all

communities; strengthens the profession of public

health; shares the latest research and information;

promotes best practices; and advocates for public

health issues and policies grounded in scientific

research.

APHA represents more than 22,000

individual members and is the only organization that

combines a 150-year perspective, a broad-based

member community, and the ability to influence

federal policy to improve the public’s health.

The Infectious Diseases Society of America

(“IDSA”) represents a community of over 12,000

physicians, scientists, public health experts, and other

health professionals who specialize in infectious

diseases (“ID”) medicine. IDSA members work across

a variety of healthcare settings, including hospitals,

academic medical centers, clinical laboratories, and

public health departments.

IDSA advocates on behalf of its membership and the

infectious diseases community on ID issues related to

public health, global health, diagnostics, and clinical

guidelines. IDSA has been highly involved in efforts to

combat the growing threat of antimicrobial resistance

(“AMR”) and considers AMR an organizational

strategic priority. The organization provides guidance

on the treatment of antibiotic resistant infections and

advocates for AMR interventions. Additionally, IDSA

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

in part. No party, counsel for a party, or person other than amici

curiae or their counsel made any monetary contribution intended

to fund the preparation or submission of this brief. All parties

have consented to this brief’s filing.

has supported efforts to combat antibiotic usage in

animal agriculture as an essential component of

preventing and reducing AMR emergence.

The Center for Food Safety (“CFS”) is a

501(c)(3) non-profit consumer advocacy organization

that empowers people, supports farmers, and protects

the earth from the harmful impact of industrial

agriculture. Through legal, scientific, and grassroots

action, CFS protects and promotes the public’s right to

safe food. CFS has over one million members

nationwide, including more than one hundred

thousand in California.

Since 2009, CFS’s industrial animal agriculture

program has developed expertise and multifaceted

strategies on addressing the known impacts of

intensive animal confinement on food safety and

public health. This overlaps two program areas: (1)

work to halt the practices of concentrated animal

feeding operations; and (2) to improve consumer

awareness and knowledge of these practices, through

labeling and other means of transparency. Proposition

12 is crucial to CFS’s mission.

The Consumer Federation of America (“CFA”)

is an association of non-profit consumer organizations

established in 1968 to advance the consumer interest

through research, advocacy, and education. Through

its Food Policy Institute, CFA conducts research and

advocacy to promote a safer, healthier, and more

affordable food supply. CFA also coordinates the Safe

Food Coalition, which is dedicated to reducing the

burden of foodborne illness in the U.S. by improving

government food inspection programs.

Food & Water Watch (“FWW”) is a 501(c)(3) nonprofit organization working to create a heathy future

for all people and generations to come—a world where

everyone has food they can trust, clean drinking water

and a livable climate. FWW mobilizes regular people

to build political power to move solutions to the most

pressing food, water, and climate problems of our time.

FWW works with and advocates for small family farms

and ranches against corporate control and abuse of

food and water resources.

Dr. Gail Hansen, DVM, MPH is the current chair

of the National Academy of Science Engineering and

Medicine’s One Health Action Collaborative. She has

worked

nationally

and

internationally

with

government agencies, universities, non-government

organizations, and industry on public health policy

and One Health.2 She has published on antibiotic

resistance related to food, animals, and the connection

between antibiotic use in agriculture and resistant

human infections. She was the state public health

veterinarian and epidemiologist for the Kansas

Department of Health and Environment from 19962008, has served in local and national organizations

and in private veterinary practices, and testified

before the U.S. House Committee on Energy and

2 One Health is an integrated, unifying approach that aims to

sustainably balance and optimize the health of people, animals

and ecosystems. It recognizes the health of humans, domestic

and wild animals, plants, and the wider environment (including

ecosystems) are closely linked and inter-dependent. Tripartite

and UNEP support OHHLEP's definition of “One Health”, World

Health

Org.

(“WHO”)

(Dec.

2021),

https://www.who.int/news/item/01-12-2021-tripartite-and-unepsupport-ohhlep-s-definition-of-one-health.

Commerce, Subcommittee on Health concerning

antibiotic resistance from the use of antibiotics in food

animals.

Dr. Joann Lindenmayer, DVM, MPH,

Honorary Diplomate of the American Veterinary

Epidemiology Society, is Associate Professor of

Public Health, adjunct, in the Department of Public

Health and Community Medicine, Tufts University

School of Medicine; and Northeast Director of the

Evidence-Based Veterinary Medical Association. Dr.

Lindenmayer is the immediate past Chair of the Board

of Directors, One Health Commission and is an

alumnus of the Centers for Disease Control and

Prevention’s (“CDC”) Epidemic Intelligence Service,

served as an epidemiologist in the state health

departments of Massachusetts, Vermont and Rhode

Island, and is a former Track Director of the combined

DVM-MPH Program at Tufts University Schools of

Medicine and Cummings School of Veterinary

Medicine.

Dr. Indu Mani, DVM, DSc has a Doctor of

Veterinary Medicine degree from Colorado State

University and a Doctor of Science degree from the

Harvard T.H. Chan School of Public Health. Dr. Mani

has published multiple peer-reviewed articles about

zoonotic infectious diseases. She is a member of the

One Health Initiative Advisory Board (Hon).

Dr. Kenneth E. Nusbaum, DVM, PhD, is

Professor Emeritus of the College of Veterinary

Medicine at Auburn University, Department of

Pathobiology. Dr. Nusbaum is an educator in the

fields of zoonotic and foreign animal disease,

biosecurity, and healthcare, specializing in viral

diseases of domestic and economically important

animals and emergent zoonoses.

SUMMARY OF ARGUMENT

The undersigned amici are public health

organizations and professionals working to promote

awareness and address the effects of intensive animal

confinement on food safety and public health. This

brief describes how, contrary to Petitioners’

allegations, Proposition 12’s restrictions on the sale of

pork derived from the intensive confinement of sows

in gestation crates protect the health and safety of

Californians. See Pet. Br. 11-14, 41-43.

Substantial scientific research demonstrates that

the intensive confinement of sows in gestation crates

threatens the health and safety of consumers in the

U.S., and in California in particular. Specifically, the

research shows that:

(1) Intensive confinement prevents sows from

moving freely and performing almost all natural

behaviors, inducing high levels of stress. That

stress triggers a physiological response that

severely suppresses the sows’ immune function and

that of their piglets, making the sows and their

piglets more susceptible to disease.

(2) The physiological response to stress also

facilitates the growth of pathogens in the confined

sows and increases the likelihood that they will

transmit diseases to their piglets, for example via

pathogens excreted in their waste.

(3) Pathogen-infected piglets often do not exhibit

any symptoms, meaning that infectious diseases

will persist in the piglets through slaughter

without detection, resulting in pork products

contaminated with pathogens carried by piglets.

(4) Contaminated pork products sold in U.S. retail

stores have been traced to pigs carrying infectious

diseases, and the consumption of such products

sickens hundreds of thousands of Californians

annually.

(6) Pathogens that contaminate pork products are

increasingly antibiotic resistant, exacerbating the

human health risks associated with foodborne

illness.

Moreover, pigs are “ideal mixing vessels” for various

strains of influenza virus, including human influenza.

Intensive confinement increases the chances that a

strain of influenza carried by pigs will “jump” to

humans. California has a strong interest in protecting

its citizens from another public health crisis, like the

2009 H1N1 swine flu pandemic which killed

thousands in the U.S., and during which the first U.S.

cases were detected in California.

Proposition 12 addresses these risks to food safety

and public health by restricting the sale of pork

products in California produced using such intensive

confinement practices. More space reduces stress in

sows, which mitigates the cascade of stress-related

negative health impacts on the sows and their piglets

destined for slaughter—which, ultimately, reduces

risk to California’s food safety and public health.

The judgment of the Ninth Circuit Court of Appeals

should be affirmed.

ARGUMENT

I. THE INTENSIVE CONFINEMENT OF SOWS POSES A

PROFOUND DANGER TO FOOD SAFETY AND PUBLIC

HEALTH IN CALIFORNIA

In the U.S., many breeding sows are intensively

confined in individual gestation crates that prevent

them from even turning around, let alone perform

natural behaviors such as exploring and foraging or

even avoiding neighboring sows to resolve conflict.3

See Pet. Br. at 9. The facilities that house these sows

generate enormous amounts of manure, urine, and

other waste, which carry infectious viruses and, often

antibiotic-resistant, bacteria4 that spread disease

among the intensively-confined sows and their

offspring destined for slaughter. Contaminated pork

products derived from the piglets of intensivelyconfined sows can infect humans through, inter alia,

3 See Pew Comm’n Indus. Farm Animal Prod., Putting Meat on

the Table: Industrial Farm Animal Production in America at 85

(Apr.

29,

2008)

available

https://www.pewtrusts.org/en/research-andanalysis/reports/0001/01/01/putting-meat-on-the-table

(“Pew2008”); Verena Grün et al., Influence of Different Housing

Systems on Distribution, Function and Mitogen-Response of

Leukocytes in Pregnant Sows, 3 ANIMALS 1123, 1123 (2013)

(“Grün2013”).

4 See Dana Cole et al., Concentrated Swine Feeding Operations

and Public Health: A Review of Occupational and Community

Health Effects, 108 ENVTL. HEALTH PERSPECTIVES 685, 685-88

(2000)

available

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1638284/

(“Cole”).

contact with or ingestion of contaminated meat and

transmission from other infected humans.5

A. Intensive Confinement of Sows Is Directly

Linked to Contaminated Pork, A Major

Source of Foodborne Illness in the U.S.

and California

Consumption of contaminated pork is a documented

source of foodborne illness in the U.S. and California.

In 2013, the CDC estimated that in the U.S.

approximately

525,000

illnesses,

2,900

hospitalizations, and 82 deaths are attributed to pork

consumption annually.6 In 2020, the annual number

of foodborne illnesses in the U.S. attributable to pork

consumption had increased to 787,000, with the

largest share attributable to pork—even more than

beef or chicken.7

Of particular relevance to

Proposition 12, between 1998 and 2015, California had

the second-highest number of foodborne illness

outbreaks attributable to pork consumption of any

single state—not including multi-state outbreaks.8

The increasing presence of antimicrobial-resistant

pathogens in pork products exacerbates the risks of

foodborne illness. Antibiotic-resistant infections are

5 See Cole at 685-88, 691-94.

John A. Painter et al., Attribution of Foodborne Illnesses,

Hospitalizations, and Deaths to Food Commodities by using

Outbreak Data, United States, 1998-2008, 19 EMERGING

INFECTIOUS DISEASES 407, 410-13 (2013).

7 Robert L. Scharff, Food Attribution and Economic Cost

Estimates for Meat- and Poultry-Related Illnesses, 83 J. FOOD

PROTECTION 959, 964 (2020) (“Scharff”).

8 J.L. Self et al., Outbreaks attributed to pork in the United States,

1998-2015, 145 EPIDEMIOL INFECT. 2980, 2986 (2017) (“Self”).

more difficult and more expensive to treat, costing the

U.S. healthcare sector billions and causing the deaths

of more than 35,000 Americans annually.9 In 2022,

the U.S. Food and Drug Administration (“FDA”)

reported that 89% and 76% of studied pork production

facilities

administered

medically-important

antibiotics and other antimicrobial drugs in feed and

water, respectively, to their pigs—not only to treat

illness but also to promote growth and increase feed

efficiency.10 Such extended exposure of bacteria to

antibiotics facilitates the selection of mutations that

cause antibiotic resistance, as non-resistant bacteria

are killed off.11

Contrary to Petitioners’ allegations, neither

“[i]ndustry action and federal inspection” nor

9 CDC, Antibiotic Resistance Threats in the United States, 2019

vii,

Section

(2019)

available

https://www.cdc.gov/drugresistance/pdf/threats-report/2019-arthreats-report-508.pdf; Ctr. For Veterinary Medicine, FDA,

Antimicrobial Use and Resistance in Animal Agriculture in the

United States, 2016-2019, Summary Report at 11-12 (June 2022)

available

https://www.fda.gov/media/159544/download

(“FDA2022”). Antibiotic resistance is a type of antimicrobial

resistance in which bacteria become resistant to antibiotics

through random genetic mutations or by one species of bacteria

acquiring resistance from another. About Antibiotic Resistance,

CDC

(Dec.

13,

2021),

https://www.cdc.gov/drugresistance/about.html; FDA2022 at 111;

Antimicrobial

resistance,

WHO

(Jul.

27,

2017),

https://www.who.int/news-room/q-a-detail/antimicrobialresistance.

10 FDA2022 at 97-98.

See Leslie Pray, Antibiotic Resistance, Mutation Rates, and

ED.

(2008)

available

MRSA,

NATURE

https://www.nature.com/scitable/topicpage/ antibioticresistancemutation-rates-and-mrsa-28360/ (“Pray”); FDA2022 at 11-12.

“geographic and temporal separation of sows from

pigs” mitigate the risk of foodborne illness attributable

to pork consumption. See Pet. Br. at 13, 42-43. As

detailed below, the intensive confinement of sows in

gestation crates weakens the immune function of the

sows and their piglets destined for slaughter. This

facilitates the spread of disease from sows to their

piglets. Once infected, the piglets often do not show

symptoms of illness, and thus become undetected

vectors of disease as they are transported to various

stages of the pork production process and, ultimately,

to slaughter. As a result, the intensive confinement of

sows threatens the safety of pork products sold in U.S.

grocery stores, including in California.

1. Intensively-Confined

Sows

Experience

Severe Stress, Which Suppresses Their

Immune Function And Facilitates the

Growth And Increased Virulence Of

Pathogens In Their Bodies

Numerous studies demonstrate that intensive

confinement of sows in gestation crates—in which

they are unable to turn around or perform almost all

natural behaviors—induces severe stress in the sows,

which in turn severely impairs their immune function

and makes them more susceptible to disease. Crated

sows have significantly higher levels of the stress

hormones adrenaline and noradrenaline12 compared

12 Noradrenaline is a neurotransmitter that generates the “fight or

flight” response.

It induces the adrenal gland to release

adrenaline. See Epinephrine (Adrenaline), Cleveland Clinic (Mar.

27, 2022), https://my.clevelandclinic.org/health/articles/22611epinephrine-adrenaline.

to group-housed sows.13 The release of these stress

hormones—a physiological response to stress—can

have immunosuppressive effects.14 Other studies

show that crated sows, compared to group-housed

sows, experience a significant decrease in the

expression of 90 immune response genes,15 decreased

white blood cell count,16 lower levels of antibodies that

fight against foreign cells,17 and significantly lower

levels of indicators that show whether white blood

13 Yongdae Jeong et al., Improving behavior characteristics and

stress indices of gestating sows housed with group housing

facility, 62 J. ANIMAL SCI. & TECH. 875, 875 (2020); 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, 11 ANIMALS Art. No. 2076 at 7

(2021) (“Liu”).

14 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,

11 FRONTIERS IN IMMUNOLOGY Art. No. 572056 at 1 (Sept. 2020)

(“Reiske”).

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,

253-57 (2021).

16 Grün2013 at 1130; Guillermo A.M. Karlen et al., The welfare of

gestating sows in conventional stalls and large groups in deep

litter, 105 APPLIED ANIMAL BEHAVIOUR SCI. 87, 98 (2007); J.L.

Salak-Johnson et al., Space allowance for gestating sows in pens:

Behavior and immunity, 90 J. ANIMAL SCI. 3232, 3232 (2012).

H.S. Siegel, Effects of Intensive Production Methods on

Livestock Health, 8 AGRO-ECOSYSTEMS 215, 224 (1983).

cells are generating an immune response18—all

indicative of impaired immune function. Indeed, a

2014 study of crated and group-housed sows showed

that gestation crates affected crated sows’ adaptive

immunity, indicating that crated sows “might show an

inadequate immune response in case of viral

infections.”19

Stress in intensively confined sows has also been

found to increase the growth and virulence of the

pathogens pigs commonly carry.20 Stress hormones

stimulate the growth of pathogens commonly found in

pigs and pork products such as Campylobacter,

Salmonella, Yersinia, Listeria, and Staphylococcus

aureus.21 Moreover, the presence of stress hormones

actually increases the virulence of certain pathogens.

18 Michał Kulok et al., Effect of lack of movement in sows during

pregnancy period on cortisol, acute phase proteins and

lymphocytes proliferation level—a pilot study, BERLIN & MUNICH

VETERINARY WEEKLY at 1 (Nov. 2017) (“Kulok2017”).

19 Verena Grün et al., Characterization of the adaptive immune

response following immunization in pregnant sows (Sus Scrofa)

kept in two different housing systems, 92 J. ANIMAL SCI. 3388,

3396 (2014); see also Kulok2017 at 1 (“[M]ovement restriction of

pregnant sows in gestation crates stimulated several stress

responses indicating compromised welfare and impaired immune

response.”).

20 J.M. Lyte & M. Lyte, Review: Microbial endocrinology:

intersection of microbiology and neurobiology matters to swine

health from infection to behavior, 13 ANIMAL 2689, 2689 (2019).

T.A. Cogan et al., Norepinephrine increases the pathogenic

potential of Campylobacter jejuni, 56 GUT 1060, 1060 (2006)

(“Cogan”); see also Amine Mohamed Boukerb et al., InterKingdom Signaling of Stress Hormones: Sensing, Transport and

Modulation of Bacterial Physiology, 12 FRONTIERS IN

MICROBIOLOGY Art. No. 690942 at 3, 7 (Oct. 2021) (“Boukerb”).

For example, a 2020 study demonstrated that

Salmonella grown in the presence of adrenaline and

noradrenaline appear to alter their environment to

promote their own growth in their host, likely by

producing substances that further suppress the host’s

immune response.22 Noradrenaline has also been

found to increase fecal excretion and the virulence of

Salmonella in pigs.23

Similarly, Campylobacter

grown in the presence of noradrenaline has been

shown to have increased virulence24 and improved

ability to survive oxygen exposure—making the

bacteria a greater threat to food safety.25

2. Piglets Born To Intensively Confined Sows

Are More Likely To Have Suppressed

Immune Function

Piglets born to intensively confined mothers have

suppressed immune function compared to piglets born

to group-housed mothers, making them more

susceptible to pathogens and disease transmitted from

their mothers.

In one study published in 2021, pregnant sows

randomly assigned to gestation crates for the duration

22 Reiske at 3.

Gillian D. Pullinger et al., 6-hydroxydopamine-mediated

release of norepinephrine increases faecal excretion of Salmonella

enterica serovar Typhimurium in pigs, 41 VETERINARY RES. 68,

at 1 (2010).

24 Cogan at 1064.

25 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, 12 FRONTIERS IN MICROBIOLOGY 703993 at 1-2 (Jul.

2021) (“Guk”).

of their pregnancies had consistently higher levels of

stress hormones in their blood than group-housed

sows.26 Piglets born to the crated sows also had higher

stress hormones in their blood than piglets of grouphoused sows.27 To model illness, randomly selected

piglets were injected with a component bacteria

commonly used to stimulate a body’s immune system

for immune stress tests.28 After several hours of

temperature monitoring, the piglets of group-housed

sows were found to have experienced a shorter period

of fever and a faster recovery compared to piglets of

crated sows, leading the authors to conclude that

piglets of group-housed sows “had better resistance

and resilience, which showed that these piglets were

healthier” than piglets of crated sows.29

Similarly, in a second study published in 2021,

piglets of sows intensively confined in gestation crates

for the first hundred days of their pregnancies were

found to have significantly higher levels of stress

hormones than piglets of group-housed sows,

particularly in the first few days of life.30 Moreover,

piglets of crated sows were found to have decreased

immune response indicators compared to piglets of

26 Liu at 2-5.

27 Id. at 7.

28 Id.

29 Id. at 5-7.

30 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, 86 & 89 (2021).

group-housed sows.31 The researchers concluded that

“the piglets from mothers kept in [gestation crates]

will have a weaker immunity barrier compared to the

piglets given birth by mothers kept in free movement

pens” and are therefore more susceptible to disease.32

The results of a 2002 study were even more

dramatic. There, sows were randomly selected to be

restrained in a gestation crate for just five minutes

every day during the 12th through 16th weeks of their

17-week pregnancy.33 Piglets born to the restrained

sows had decreased antibody concentrations and

decreased white blood cell generation compared to the

piglets of unrestrained sows.34 And piglets born to

restrained sows had a significantly atrophied thymus,

indicating that the cellular immune function of these

piglets would suffer long-term impairment.35

31 Id. at 90.

32 Id.

33 M. Tuchscherer et al., Effects of prenatal stress on cellular and

humoral immune responses in neonatal pigs, 86 VETERINARY

IMMUNOLOGY & IMMUNOPATHOLOGY 195, 196 (2002)

(“Tuchscherer”).

34 Id. at 201.

35 Id. at 202.

The thymus produces white blood cells called T cells

that (1) stimulate the production of antibodies, (2) control

immune reactions, and (3) bind to and kill infected cells. Thymus,

Cleveland

Clinic

(May

15,

2022),

http://my.clevelandclinic.org/health/body/23016-thymus; T cell,

Britannica,

https://www.britannica.com/science/T-cell

(last

visited July 25, 2022).

3. Intensively

Confined

Sows

Are

Documented Source of Contaminated Pork

Products

Piglets of sows intensively confined in gestation

crates are not only born less able to fight illness, but

are also exposed to higher levels of pathogens from

their mothers. As a result, they are at greater risk of

infection compared to piglets of group-housed sows.36

For example, crated sows are more likely to excrete

Campylobacter in their waste,37 and piglets are

infected “within the first few hours of birth” and most

Indeed,

“remain carriers until slaughter.”38

Petitioners concede that diseases can be transmitted

from sows to their offspring. See Pet. Br. at 13, 43.

Further, contrary to Petitioners’ assertions, neither

“[i]ndustry action and federal inspection” nor

“geographic and temporal separation of sows from

pigs” mitigate the risk of foodborne illness from pork.

See Pet. Br. at 13, 41-43. Instead of reducing disease,

live transport of animals has been described by the

Food and Agriculture Organization of the United

Nations (“FAO”) as “ideally suited for spreading

disease.”39 This is because the stresses associated

36 See E. Merlot et al., Prenatal stress, immunity and neonatal

health in farm animal species, 7 ANIMAL 2016, 2020 (2013).

37 Martine Denis et al., Campylobacter from sows in farrow-to-

finish pig farms: Risk indicators and genetic diversity, 154

VETERINARY MICROBIOLOGY 163, 163-69 (2011) (“Denis”).

C.R. Young et al., Enteric colonization following natural

exposure to Campylobacter in pigs, 68 RES. VETERINARY SCI. 75,

77 (2000) (“Young”).

39 FAO, FAO Animal Production and Health Paper 153: Improved

Animal

Health

for

Poverty

Reduction

and

Sustainable

with live transport cause more pigs to excrete

pathogens such as Salmonella and Yersinia in their

waste, increasing the likelihood of transmission to

healthy pigs at their destination.40 For example, the

live transport of pigs between production stages and to

slaughter involves serious stressors such as handling,

fluctuating temperatures, social stress associated with

mixing with unfamiliar pigs, feed and water

withdrawal, exposure to new environments,

vibrations, and noise.41 Moreover, infected piglets,

which often do not exhibit symptoms of infection, are

unlikely to be identified as ill during inspection and

quarantined.

Thus, the increased risk that piglets will be infected

by their intensively confined mothers—coupled with

live transport between production stages and the lack

of symptoms in infected pigs—leads to transmission to

other healthy pigs and a continued heightened risk of

persistent infection through to retail pork. Indeed, a

2013 study tracing pork from farm to retail found that

nearly 15% of carcasses infected with Listeria resulted

Livelihoods

(2002)

https://www.fao.org/3/y3542e/y3542e.pdf.

available

40 Sonja Virtanen et al., Piglets Are a Source of Pathogenic

Yersinia enterocolitica on Fattening-Pig Farms, 78 APPLIED &

ENVTL. MICROBIOLOGY 3000, 3000 (Apr. 2012) (“Virtanen”); I.

Alpigiani et al., The associations between animal-based welfare

measures and the presence of indicators of food safety in finishing

pigs, 25 ANIMAL WELFARE 355, 358 (2016) (“Alpigiani”).

41 Mhairi Sutherland et al., Effects of Transport at Weaning on

the Behavior, Physiology and Performance of Pigs, 4 ANIMALS

657, 668 (2014); Nathalie Nollet et al., Distribution of Salmonella

Strains in Farrow-to-Finish Pig Herds: A Longitudinal Study, 68

J. FOOD PROTECTION 2012, 2018 (2005) (“Nollet”).

in retail meat slices that were positive for Listeria.42

Thus, as detailed immediately below, piglets born to

crated sows are linked to serious food safety risks in

pork.

Campylobacter infects more than 2.4 million

Americans annually.43 An estimated 37,000 annual

Campylobacter infections in the US are attributable to

contaminated pork.44 Moreover, more than 200,000

Californians are infected annually.45 A leading cause

of human bacterial gastroenteritis,46 Campylobacter

infection can also lead to blood and brain infections,

joint inflammation, paralysis, and even death.47

Gestation crates are considered “a significant risk

indicator for Campylobacter contamination” because

crated sows are nearly three times more likely to

excrete the bacteria in their waste than group-housed

sows.48 A U.S. Department of Agriculture (“USDA”)

study found that nearly 60 percent of tested piglets

42 Y.M. Choi et al., Changes in microbial contamination levels of

porcine carcasses and fresh pork in slaughterhouses, processing

lines, retail outlets, and local markets by commercial distribution,

94 RES. VETERINARY SCI. 413, 417 (2013) (“Choi”).

43 Campylobacteriosis, Cal. Dept. Pub. Health (May 25, 2017),

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Campylob

acteriosis.aspx (“CDPHCampylobacteriosis”).

44 Scharff at 966

45 CDPHCampylobacteriosis.

46 Young at 75.

Guk at 2; Lea S. Eiland et al., Optimal Treatment of

Campylobacter Dysentery, 13 J. PEDIATRIC PHARMACOLOGY &

THERAPEUTICS 170, 172 (2008) (“Eiland”).

48 Denis at169.

were found to be infected with Campylobacter the

same day they were born, and all were infected by the

time the they are weaned.49 This suggests that piglets

are infected “within the first few hours of birth,” while

they are still with their mothers; and most “remain

carriers until slaughter.”50 Epidemiological studies

conducted during the fattening stages to slaughter

further show that more than 85% of pigs remain

intestinal carriers of Campylobacter through

slaughter.51 Moreover, Campylobacter-infected pigs

do not show symptoms of infection and therefore would

not be identified as ill on inspection, contrary to

Petitioners’ conclusory assertions.52 See Pet. Br. at 13,

43. As a result, the more virulent Campylobacter

carried by crated sows53 are more likely to infect their

piglets and to reach consumers in the form of

contaminated pork products derived from their

piglets.

Exacerbating the risks of infection, Campylobacter

found in pigs and retail pork chops have been found to

be increasingly resistant to the medically important

antibiotics used to treat it. Between 1998-1999 and

2015, scientists observed in Campylobacter a notable

49 Young at 77.

50 Id.

51 M.J.B.M. Weijtens, et al., Prevalence of Campylobacter in pigs

during fattening; an epidemiological study, 15 VETERINARY Q.

138, 138 (1993).

52 See Guk at 2.

53 Cogan at 1064; Guk at 1-2.

increase in resistance to six common antibiotics.54

Moreover, in 2015, 83% of Campylobacter found on

commercial pork chops were found to be resistant to at

least one medically important antibiotic.55 Most

distressingly, in 2015, more than 40% of

Campylobacter found in retail pork chops were found

to be resistant to azithromycin, the antibiotic of choice

for severe pediatric infections.56

Salmonella

kills

hundreds,

hospitalizes

thousands, and sickens more than a million people

annually—including about 5,000 reported cases in

California annually.57 Between 2018 and 2019, the

number of pork chops found to be infected with

Salmonella increased more than five-fold to the

highest level in recent years.58 Pork consumption

costs the U.S. more than $1.9 billion annually in social

costs.59

Ross C. Beier et al., Disinfectant and Antimicrobial

Susceptibility Profiles of Campylobacter Coli Isolated in 1998 to

1999 and 2015 from Swine and Commercial Pork Chops, 84. J.

FOOD SCI. 1501, 1510 (2019).

55 Id. at 1505.

56 Id. at 1504; Eiland at 173.

57 Elaine Scallan et al., Foodborne Illness Acquired in the United

States—Major Pathogens, 17 EMERGING INFECTIOUS DISEASES 7,

11-12

(2011)

available

https://wwwnc.cdc.gov/eid/article/17/1/p1-1101_article

(“Scallan”); Salmonellosis, Cal. Dept. Pub. Health (Jun. 16, 2022)

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/Salmonello

sis.aspx.

58 FDA2022 at 111.

59 Scharff at 966.

Salmonella rates in pigs are higher than in any

other common livestock—in 2019, approximately 60%

of tested sows were positive, compared to 50% of

chickens.60

DNA analyses show that 75% of

Salmonella species found in piglets matched at least

one species found in their mothers, suggesting that

sows transmit Salmonella to their piglets.61 Indeed,

researchers analyzing a farm transmission model for

Salmonella in pigs concluded that, until the level of

infection in a country’s breeding herd is brought below

Nat’l Antimicrobial Resistance Monitoring Sys., 2019

Integrated Report Summary at 6 (Apr. 19, 2022) available at

https://www.fda.gov/animal-veterinary/national-antimicrobialresistance-monitoring-system/2019-narms-update-integratedreport-summary-interactive-version

(“NARMS2019”).

collaboration among state and local public health departments,

the CDC, the USDA, and the FDA, NARMS tracks changes in the

antimicrobial susceptibility of intestinal bacteria found in ill

people, retail meat, and livestock. See National Antimicrobial

Resistance Monitoring System for Enteric Bacteria (NARMS),

CDC, https://www.cdc.gov/narms/index.html (last visited July 25,

2022).

61 Alejandro Casanova-Higes et al., Weaned piglets: another factor

to be considered for the control of Salmonella infection in breeding

pig farms, 50 VETERINARY RES. Art. No. 45 at 9 (2019)

(“Casanova-Higes”); see also Joana Campos et al., Non-typhoidal

Salmonella in the Pig Production Chain: A Comprehensive

Analysis of Its Impact on Human Health, 8 PATHOGENS Art. No.

1:19 at 3 (2019) (finding that breeding pigs are a source of

Salmonella dissemination along the pig production chain,

“leading to pork meat contamination and consequently to human

infections.”).

10%, sows will be the “dominant source of infection to

pigs raised for meat production.”62

The vertical segmentation of pork production does

nothing to mitigate these risks, and likely exacerbates

them because Salmonella infections in pigs are a

“prime example for [sic] stress-induced flare-up of

infections.”63. See Pet. Br. at 11-12, 42. Transferring

piglets between production stages, including to

slaughter, is “an important trigger to induce

Salmonella [excretion in waste], leading to horizontal

spread” from infected pigs to healthy pigs.64 Several

studies have found that transporting piglets, even for

as little as two hours, will increase the number of

piglets actively excreting Salmonella in their waste.65

62 Andrew A. Hill et al., A Farm Transmission Model for

Salmonella in Pigs, Applicable to E.U. Member States, 36 RISK

ANAL. 461, 461 (2016).

Elin Verbrugghe et al., Host Stress Drives Salmonella

Recrudescence, 6 SCI. REPS. 20849 at 1 (2016).

64 Nollet at 2012 & 2018-19.

65 See Sheila K. Patterson et al., Towards an understanding of

Salmonella enterica serovar Typhimurium persistence in swine,

17 ANIMAL HEALTH RES. REVS. 159, 160 (2017) (“Patterson”); see

also Leslie P. Williams, Jr. et al., Salmonella Excretion in JoyRiding Pigs, 60 AM. J. PUB. HEALTH NATION’S HEALTH 926, 927

(1970); Francesca Romana Massacci et al., Transport to the

Slaughterhouse Affects the Salmonella Shedding and Modifies the

Fecal Microbiota of Finishing Pigs, 10 ANIMALS Art. No. 676 at 9

(2020); Peter Davies et al., Fecal Shedding of Salmonella by a

cohort of finishing pigs in North Carolina, 7 SWINE HEALTH &

PRODUCTION 231, 232 (1999) (“Davies1999”); German B. Vigo et

al., Salmonella enterica Subclinical Infection: Bacteriological,

Serological, Pulsed-Field Gel Electrophoresis, and Antimicrobial

Resistance Profiles—Longitudinal Study in a Three-Site Farrow-

In one study, a two-hour truck ride caused the number

of experimentally infected piglets actively excreting

Salmonella in their waste to increase from 4% to

80%.66 In another study, piglets transported just over

three miles from a nursery to a fattening facility

exhibited a more than 30% increase in Salmonellapositive fecal samples,67 leading researchers to

recommend that “transportation and litter comingling

should be diminished to reduce Salmonella spp.

excretion from the residual infected pigs.”68

Nor are federal inspection or farm biosecurity

sufficient to mitigate risk. See Pet. Br. at 13, 43.

Infected piglets often do not show symptoms or exhibit

detectable changes in their growth and production

parameters,69 despite remaining active Salmonella

carriers through slaughter,70 and thus are unlikely to

be detected on inspection. In one study, piglets were

found to be actively excreting Salmonella in their

waste more than four months after being

experimentally infected with the bacteria, indicating

to-Finish Farm, 6 FOODBORNE PATHOGENS & DISEASE 965, 970

(2009) (“Vigo”).

66 Patterson at 160.

67 Vigo at 968, 970; see also Davies1999 at 232.

68 Vigo at 971.

Agnieszka

Chlebicz

Katarzyna

Śliżewska,

Campylobacteriosis, Salmonellosis, Yersiniosis, and Listeriosis as

Zoonotic Foodborne Diseases: A Review, 15 INT’L J. ENVTL. RES. &

PUBLIC HEALTH E863 at 9 (2018) (“Chlebicz”).

70 Casanova-Higes at 10; Maria Cevallos-Almeida, Longitudinal

study describing time to Salmonella seroconversion in piglets on

three farrow-to-finish farms, 6 VETERINARY RECORD OPEN

e000287 at 1 (2019).

that infections in piglets can persist until market age,

Similarly, a study of

which is five months.71

Salmonella infection among sows and their piglets

from birth to fattening (approximately 165 days after

birth) showed that the same infection can persist

through all stages of pork production, up to

slaughter.72

Drug-resistant strains of Salmonella exacerbate the

risk associated with Salmonella infections. In 2019,

NARMS reported the highest percentage of

Salmonella-positive retail pork since testing began in

2002, and an increased presence in retail pork of

Salmonella with resistance to ciprofloxacin73—a

“Highest

Priority

Critically

Important

Antimicrobial” —from none to 14%.

Further, the

often multidrug-resistant Salmonella strain I

4,[5],12:i:-, has also emerged as a prominent cause of

pork-related Salmonella outbreaks.76 Finally, in 2020

about 10% of Salmonella in U.S. were multidrugresistant.77

Kathrin Scherer et al., Time Course of Infection with

Salmonella Typhimurium and Its Influence on Fecal Shedding,

Distribution in Inner Organs, and Antibody Response in

Fattening Pigs, 71 J. FOOD PROTECTION 699, 702 (2008).

72 Vigo at 970.

73 NARMS2019 at 4.

WHO, Critically Important Antimicrobials for Human

Medicine at 10, 18, 28 (2016).

75 NARMS2019 at 4; see also FDA2022 at 214.

76 Self at 2986.

77 Roger B. Harvey et al., A Preliminary Study on the Presence of

Salmonella in Lymph Nodes of Sows at Processing Plants in the

Yersinia

can

cause

gastroenteritis

and

appendicitis-like symptoms in humans, and can result

in blood infections and chronic joint inflammation.78

Yersinia causes thousands of illnesses, hundreds of

hospitalizations, and dozens of deaths in the U.S.

annually79—and 76% of infections are attributable to

pork.80 In California, Yersinia infection rates rose

every year between 2014 and 2019, tripling during

In 2012, Consumer Reports found

that time.81

Yersinia on 69% of retail pork samples; more than 90%

were resistant to at least one antimicrobial drug.82

And, again contrary to Petitioners’ argument that

vertical segmentation of pig production reduces risk to

food safety, see Pet. Br. at 11-12, 42, pigs carry strains

of Yersinia83 that pose a risk to food safety without

United States, 8 MICROORGANISMS Art. No. 1602 at 1 (2022); see

also FDA2022 at 214.

78 Yersinia enterocolitica (Yersiniosis), CDC (Aug. 1, 2019)

https://www.cdc.gov/yersinia/faq.html

(“CDCYersiniosis”);

Virtanen at 3000.

79 CDCYersiniosis.

Scharff at 963; Agata Bancerz-Kisiel & Wojciech Szweda,

Yersiniosis – a zoonotic foodborne disease of relevance to public

health, 22 ANNALS AGRIC. & ENVTL. MED. 397, 401 (2015);

Virtanen at 3000; Cal. Dept. Pub. Health, Epidemiologic Summary

of Yersiniosis in California, 2013-2019 at 7 available at

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Docu

ment%20Library/YersiniosisEpiSummary2013-2019.pdf.

81 Id. at 4.

82 Greg Cima, Organization finds Yersinia enterocolitica in most

pork samples, Am Veterinary Med. Assoc. (Dec. 31, 2012),

https://www.avma.org/javma-news/2013-01-15/organizationfinds-yersinia-enterocolitica-most-pork-samples.

83 See also supra Section II.A.3.

showing symptoms.84 Even a few piglets infected with

Yersinia at a breeding farm can, once transported to a

separate fattening farm, infect healthy piglets after

their arrival.85 In addition, stress induces the growth

of Yersinia.86 One study found a strong association

between the fear reaction of pigs and the presence of

Yersinia in the pigs’ pen.87 Moreover, several studies

have found Yersinia to be more prevalent in

specialized fattening herds than in combined herds of

piglets and mature pigs.88 In one study, combined

herds of piglets and mature pigs were free from

Yersinia, while 42.9% of herds from specialized

facilities carried Yersinia.89 Another study concluded

that combined herds were the most protective factor

against Yersinia.90

84 Kacper Libera et al., Selected Livestock-Associated Zoonoses as

a Growing Challenge for Public Health, 14 INFECTIOUS DISEASE

REPS. 63, 70 (2022); Niall Drummond et al., Yersinia

Enterocolitica: A Brief Review of the Issues Relating to the

Zoonotic Pathogen, Public Health Challenges, and the Pork

Production Chain, 9 FOODBORNE PATHOGENS & DISEASE 179, 183

(2012).

85 Virtanen at 3000.

86 Boukerb at 3, 7.

87 Alpigiani at 358, 360.

88 T. Nesbakken & E. Skjerve, Interruption of Microbial Cycles in

Farm Animals from Farm to Table, 43 MEAT SCI. S47, S50 (1996).

89 Truls Nesbakken et al., Occurrence of Yersinia enterocolitica

and Campylobacter spp. in slaughter pigs and consequences for

meat inspection, slaughtering, and dressing procedures, 80 INT’L

J. FOOD MICROBIOLOGY 231, 234 (2003).

90 Eystein Skjerve et al., Control of Yersinia enterocolitica in pigs

at herd level, 45 INT’L J. FOOD MICROBIOLOGY 195, 195 (1998).

Other pathogens posing a risk to food safety may

also be carried by pigs without causing detectable

symptoms, including Listeria,91 Toxoplasma gondii,92

hepatitis E,93 and MRSA.94 This increases the risk

that these pathogens will avoid detection and enter

the food supply. See Pet. Br. at 13, 43.

Listeria can cause severe illness in pregnant

women, newborns, seniors older than 65, and the

immunocompromised.95 Although pregnant women

typically experience only fever and flu-like symptoms,

Listeria infections can lead to miscarriage, stillbirth,

premature delivery, or life-threatening infection of the

newborn.96 In seniors and the immunocompromised,

severe Listeria infections can develop into sepsis or

91 Chlebicz at 17.

See Walter Basso et al., Experimental Toxoplasma gondii

infections in pigs: humoral immune response, estimation of

specific IgG avidity and the challenges of reproducing vertical

transmission in sows, 236 VETERINARY PARASITOLOGY 76 at

Abstract (2017).

93 Samantha Treagus et al., The Foodborne Transmission of

Hepatitis E Virus to Humans, 13 FOOD & ENVTL. VIROLOGY 127,

130 (2021) (“Treagus”).

Giuseppe Merialdi et al., Livestock-associated methicillinresistant Staphylococcus aureus (LA-MRSA) spa type t127,

Sequence Type (ST)1, quickly spreads and persists among young

pigs, 77 PATHOGENS & DISEASE Art. No. ftz033 at 3 (2019)

(“Merialdi”).

Listeria Infection¸ Mayo Clinic (Feb. 11, 2022),

https://www.mayoclinic.org/diseases-conditions/listeriainfection/symptoms-causes/syc-20355269

(“MayoListeria”);

Listeria (Listeriosis) - Questions and Answers, CDC (Dec. 12,

2016), https://www.cdc.gov/listeria/faq.html (“CDCListeria”).

96 MayoListeria; CDCListeria.

meningitis.97 Listeria is one of the deadliest foodborne

pathogens, with a 94% hospitalization rate and 15.9%

death rate.98 Approximately 9% of Listeria infections

are attributable to pork.99

Sows have been found to excrete Listeria in their

waste, suggesting that the transmission of Listeria

from sow to piglet is possible.100 And Listeria has been

found to reach the food supply from infected pigs. A

2013 study that followed pigs from farm to retail

found, based on DNA testing, that nearly 15% of pig

carcasses carrying Listeria resulted in retail meat

slices that were positive for Listeria, suggesting that

pigs carrying Listeria may pose a food safety threat.101

Toxoplasma gondii is a brain parasite that can

cause blindness, seizures, and encephalitis in humans

with weakened immune systems, miscarriages, and

congenital illness in surviving newborns resulting in

hearing loss, mental disability, and blindness.102 The

97 MayoListeria; CDCListeria.

98 Scallan at 12.

99 Arie H. Havelaar et al., Attribution of Foodborne Pathogens

Using Structured Expert Elicitation, 5 FOODBORNE PATHOGENS &

DISEASE 649, 655 (2008).

100 Evelyne Boscher et al., Prevalence and Distribution of Listeria

monocytogenes Serotypes and Pulsotypes in Sows and Fattening

Pigs in Farrow-to-Finish Farms (France, 2008), 75 J. FOOD

PROTECTION 889, 893 (2012).

101 Choi at 417.

102 J.P. Dubey et al., Prevalence of Viable Toxoplasma gondii in

Beef, Chicken, and Pork From Retail Meat Stores in the United

States: Risk Assessment to Consumers, 91 J. PARASITOLOGY 1082,

1082 (2005) (“Dubey”); Peter Davies, Intensive Swine Production

annual cost to society of congenital toxoplasmosis in

the U.S. is an estimated $8.8 billion.103

About 35,000 pork-borne Toxoplasma infections in

humans occur in the U.S. annually, which is

approximately 41% of all Toxoplasma infections.104

Based on the USDA-estimated rate of pork

consumption in the U.S.—51.8 pounds per person

annually—the risk of purchasing pork contaminated

with Toxoplasma over a ten-year period was nearly

50%.105 Toxoplasma in pork, specifically, is the fourth

costliest pathogen-food pair at $1.85 billion annually,

after Campylobacter and Salmonella in chicken and

Salmonella in pork.106

Staphylococcus

aureus

bacteria—known

“staph”—is the most common cause of skin infections

in humans and can lead to hospitalization and even

death if it enters the bloodstream.107 Approximately

19,000 human deaths in U.S. are caused by

methicillin-resistant Staphylococcus aureus (“MRSA”)

annually.108 Between 1995 and 2004, the percentage

and Pork Safety, 8 FOODBORNE PATHOGENS & DISEASE 189, 191

(2011); Toxoplasmosis, Mayo Clinic (Oct. 13, 2020),

https://www.mayoclinic.org/

diseasesconditions/toxoplasmosis/symptoms-causes/syc-20356249.

103 Dubey at 1082.

104 Scharff at 963.

105 See Dubey at 1090.

106 Scharff at 963.

107 See Pray.

See id. Methicillin was developed in the 1950s as an

alternative treatment for staph infections that had become

resistant to penicillin. See id.

108

of all staph infections in the U.S. caused by MRSA

nearly tripled from 22% to 63%.109 MRSA has been

found to contaminate 1% to 2% of retail pork sold in

the U.S.,110 and its presence in food is considered a

public health risk.111

Pigs are considered a MRSA reservoir for the

general human population.112 And sows are an

important source of MRSA for piglets.113

Once

infected, piglets persistently test positive for MRSA.114

Hepatitis E can cause chronic infections, acute liver

failure, and death in the immunocompromised or

pregnant.115 Pork consumption is “a significant risk

109 See id.

110

Beilei Ge et al., MRSA and multidrug-resistant

Staphylococcus aureus in U.S. retail meats, 2010-2011, 62 FOOD

MICROBIOLOGY 289, 289 (2017).

D. Sergelidis & A.S. Angelidis, Methicillin-resistant

Staphylococcus aureus: a controversial food-borne pathogen, 64

LETTERS IN APPLIED MICROBIOLOGY 409, 413 (2017) available at

https://sfamjournals.onlinelibrary.wiley.com/doi/epdf/10.1111/la

m.12735.

111

112 Verhegghe at 680.

Marijke Verhegghe et al., Cohort study for the presence of

livestock-associated MRSA in piglets: Effect of sow status at

farrowing and determination of the piglet colonization age, 162

VETERINARY MICROBIOLOGY 679, 685 (2013) (“Verhegghe”).

113

114 Merialdi at 3; Verhegghe at 680; A. Burns et al., A longitudinal

study of Staphylococcus aureus colonization in pigs in Ireland,

174 VETERINARY MICROBIOLOGY 504, 511 (2014); Patrick Daniel

Bangerter et al., Longitudinal study on the colonisation and

transmission of methicillin-resistant Staphylococcus aureus in

pig farms, 183 VETERINARY MICROBIOLOGY 125, 132 (2016).

115 Hepatitis E, WHO (June 24, 2022), https://www.who.int/news-

room/fact-sheets/detail/ hepatitis-e.

factor and known transmission route for the [hepatitis

E] virus to humans.”116 A study following piglets

infected with hepatitis E found that 23% still carried

the virus at slaughter.117 A survey of more than 5,000

market-weight pigs at 25 slaughter plants across 10

U.S. states conducted between 2017 and 2019,

detected hepatitis E virus in 6.3% of blood samples.118

And products derived from infected pigs can reach

the food supply. For example, 11% of retail pig livers

in the U.S. have been found to contain infectious

hepatitis E virus.119 In California, 45% of retail pig

liver samples collected in 2018 were positive for

hepatitis E virus.120

California thus has a strong interest in maintaining

the safety of its food supply by preventing products

derived from the piglets of crated sows from entering

its borders.

B. The Intensive Confinement of

Increases

Pathogen

Virulence

Sows

And

116 Treagus at 127.

117 Yuta Kanai et al., Long-Term Shedding of Hepatitis E Virus

in the Feces of Pigs Infected Naturally, Born to Sows With and

Without Maternal Antibodies, 82 J. MED. VIROLOGY 69, 74 (2010).

Harini Sooryanarain et al., Hepatitis E Virus in Pigs from

Slaughterhouses, United States, 2017-2019, 26, EMERGING

INFECTIOUS DISEASES 354, 354 (Feb. 2020).

118

119 A.R. Feagins et. al., Detection and Characterization of

infectious Hepatitis E virus from commercial pig livers sold in

local grocery stores in the USA, 88 J. GEN. VIROLOGY 912, 914-15

(2007).

La’Chia Harrison et al., Presence of hepatitis E virus in

commercially available pork products, 339 INT’L J. FOOD

MICROBIOLOGY 109033 at 2, 4 (2021).

120

Facilitates The Transmission of Pathogens

And Disease To Humans

The intensive confinement of sows is not just a

significant risk to food safety; it creates more

opportunity for the transmission of disease between

confined sows, and facilitates the mutation of

pathogens through a process called “amplification.”

This can lead to more virulent diseases and more

diseases, including antibiotic resistant bacteria, that

are transmissible to humans.

Physical proximity facilitates the spread of

disease.121 The intensive confinement of animals

facilitates disease transmission because the animals

cannot physically distance themselves from each

other.122 Livestock herds are also genetically close,

making them more vulnerable to infection than

genetically diverse populations because genetically

diverse populations are more likely to include

121 See John R. Rohr et al., Emerging Human Infectious Diseases

and the Links to Global Food Production, 2 NATURE

SUSTAINABILITY

445,

451

(2019)

available

https://www.nature.com/articles/s41893-019-0293-3.pdf

(“A

central tenet of epidemiology is that the incidence of many

infectious diseases should increase proportionally with host

density because of increased contact rates and thus transmission

among hosts.”).

See Delia Grace Randolph et al., United Nations Env’t

Programme, Preventing the Next Pandemic: Zoonotic diseases

and how to break the chain of transmission at 15 (2020) available

https://www.unep.org/resources/report/preventing-futurezoonotic-disease-outbreaks-protecting-environment-animals-and

(“Randolph”); European Food Safety Authority, Scientific

Opinion Food Safety Aspects of Different Pig Housing and

Husbandry Systems, 613 THE EFSA J. 1, 10 (2007); Pew2008 at

13.

122

individuals that are better able to resist disease.123

And, as discussed above, intensive confinement

induces a physiological stress response in sows, not

only impairing their resistance to disease, but also

that of their piglets, making transmission of disease

among pigs even more likely.124

Indeed, a United Nations report found that the

intensive farming of pigs “promoted transmission of

swine influenza due to lack of physical distancing

between the animals.”125 This is because pigs are

susceptible to swine, human, and avian influenza,

making them “ideal mixing vessels” for influenza

strains, and could result in an influenza strain that

can make the jump to humans.126 The risk of pig-tohuman transmission of influenza is very real, as

demonstrated by the 2009 H1N1 swine flu pandemic.

DNA analysis of the 2009 H1N1 influenza virus

revealed gene segments that originated from humans,

birds, North American pigs, and Eurasian pigs. 127

Two months after it was first detected in California in

April 2009, the H1N1 influenza virus was declared a

123 See Randolph at 15; Pew2008 at 85.

124 See supra Sections II.B.1 & 2.

125 Randolph at 15.

126 Cassandra Willyard, Flu on the farm, S62-63 NATURE 573

available

www.nature.com/articles/d41586-019-02757-4;

Wenjun Ma, et al., The pig as a mixing vessel for influenza

viruses: Human and veterinary implications, 3 J. MOLECULAR &

GENETIC

MED.

158

(2009)

available

at.

www.ncbi.nlm.nih.gov/pmc/articles/PMC2702078/.

127 CDC, Origin of 2009 H1N1 Flu (Swine Flu): Questions and

Answers

(Nov.

25,

2009),

h1n1flu/information_h1n1_virus_qa.htm.

https://www.cdc.gov/

worldwide pandemic.128 In just the first year, the

H1N1 swine flu pandemic resulted in millions of

infections and up to 575,000 deaths worldwide, and

more than 60 million cases, 274,000 hospitalizations,

and 12,000 deaths in the U.S.129

II. PROPOSITION 12 MITIGATES THE RISKS TO FOOD

SAFETY AND PUBLIC HEALTH CAUSED BY

INTENSIVE PIG CONFINEMENT

Contrary to Petitioners’ allegations, vertical

segmentation of pork production, biosecurity

measures, and inspections do not address the risks to

food safety and public health posed by the intensive

confinement of sows. See Pet. Br. at 11-13, 41-43.

Intensively confined sows experience a physiological

stress response that (1) weakens their immune

function and that of their piglets, (2) increases the

growth and virulence of pathogens in the sows, and

(3) increases the excretion of pathogens in their waste,

all of which facilitate the transmission of pathogens

from the sows to their piglets destined for slaughter,

and then into the pork products sold to Californians.130

Moreover, intensively confined sows cannot physically

distance themselves from one another, which

facilitates the transmission and mutation of

pathogens into more virulent forms that can be

transmitted to and sicken, or even kill, humans.

CDC,

2009

H1N1

Pandemic

Timeline,

https://www.cdc.gov/flu/pandemic-resources/2009-pandemictimeline.html (last visited July 27, 2022).

128

CDC, 2009 H1N1 Pandemic (H1N1pdm09

https://www.cdc.gov/flu/pandemic-resources/2009-h1n1pandemic.html (last visited July 27, 2022).

129

130 See supra Section I.A.

virus),

Proposition 12’s restrictions on the sale of pork

products specifically address a root cause of these

risks—the intensively confined sow. Sows with more

space necessarily experience reduced stress, which

will mitigate the cascade of stress-related effects on

the immune function of the sows and their piglets, as

well as reduce transmission of disease among the sows

and from sows to their piglets.131 Indeed, the USDA

just proposed to revise the Organic Livestock and

Poultry Standards to require that shelter for livestock,

including pigs, “must be designed to accommodate

natural behaviors over every 24-hour period.”132

Although the proposed rule permits livestock to be

temporarily constrained each day, it specifically “does

not permit the use of gestation crates or other

confinement systems in which swine would be housed

individually in stalls for months at a time.”133 Indeed,

in proposing these rules, the USDA commented,

“support[ing] the natural behaviors of livestock . . .

may result in healthier livestock products for human

consumption[.]”134

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgment below.

131 See id.

National Organic Program: Organic Livestock and Poultry

Standards, 87 Fed. Reg. 48562, 48574 (Aug. 9, 2022) (proposed

rule) available at https://www.govinfo.gov/content/pkg/FR-202208-09/pdf/2022-16980.pdf.

132

133 Id.

134 Id. at 48565.

Respectfully submitted.

Henry Weisburg

Counsel of Record

Matthew G. Berkowitz

SHEARMAN & STERLING LLP

599 Lexington Avenue

New York, NY 10005

212.848.4000

hweisburg@shearman.com

matt.berkowitz@shearman.com

Counsel for all 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.