Update Jan. 23, 2012: The U.S. Supreme Court has issued its opinion reversing the Ninth Circuit and overturning the California law, Sec. 599f, passed to protect non-ambulatory pigs and other animals from cruelty at slaughter facilities. The law was challenged by the National Meat Association on behalf of pig slaughterhouses. Justice Elena Kagan, a recent Obama Administration appointment to the Court, delivered the opinion. Justice Kagan observed that "not infrequently" pigs are injured to the point they become non-ambulatory at the slaughterhouse. She also noted the "harsh transportation conditions" that leave pigs non-ambulatory when they arrive at slaughter. Justice Kagan stated "many nonambulatory pigs become disabled either in transit to or after arrival at a slaughterhouse". Nonetheless, she joined every other justice in unanimously finding that under the doctrine of preemption, no state can impose "any additional or different-even if non-conflicting-requirements that fall within the scope of the [Federal Meat Inspection] Act and concern a slaughterhouse’s facilities or operations."
Curiously – and thankfully – the Supreme Court spared the horses and distinguished state bans on horse slaughter: "The Circuit decisions upholding state bans on slaughtering horses…do not demand any different conclusion. We express no view on those decisions, except to say that the laws sustained there differ from §599f in a significant respect. A ban on butchering horses for human consumption works at a remove from the sites and activities that the FMIA most directly governs. When such a ban is in effect, no horses will be delivered to, inspected at, or handled by a slaughterhouse, because no horses will be ordered for purchase in the first instance. But §599f does not and cannot work in that way. …§599f tells the slaughterhouse what to do with those animals. Unlike a horse slaughtering ban, the statute thus reaches into the slaughterhouse’s facilities and affects its daily activities." Sec. 599f did, however, prohibit the purchase, sale or receipt of non-ambulatory animals.
The Court’s decision makes it all the more paramount to enact H.R. 3704, a federal bill that would protect all non-ambulatory animals from slaughter and cruelty and require their humane and immediate euthanasia.
For more on this case and the California law at issue, read Animal Law Coalition’s reports below.
Update November 11, 2011: The U.S. Supreme Court heard oral argument on Wednesday, November 9, 2011 in this case where the Court granted the petition for a writ of certiorari filed by the National Meat Association and the American Meat Institute.
The questions presented were:
1. Did the Ninth Circuit err in holding that a "presumption against preemption" requires a "narrow interpretation" of the Federal Meat Inspection Act’s express preemption provision, in conflict with this Court’s decision in Jones v. Rath Packing Co., 430 U.S. 519, 540 (1977), that the provision must be given "a broad meaning"?
2. Where federal food safety and humane handling regulations specify that animals (here, pigs) which are or become nonambulatory on federally-inspected premises are to be separated and held for observation and further disease inspection, did the Ninth Circuit err in holding that a state criminal law which requires that such animals not be held for observation and disease inspection, but instead be immediately euthanized, was not preempted by the FMIA?
3. Did the Ninth Circuit err in holding more generally that a state criminal law which states that no slaughterhouse may buy, sell, receive, process, butcher, or hold a nonambulatory animal is not a preempted attempt to regulate the "premises, facilities, [or] operations" of federally-regulated slaughterhouses?
During the argument some of the justices appeared to agree with the meat producers that the distinction that would allow states to exclude downed animals but not for other illness, injury or disease is not workable. The question was also raised as to whether it was possible to determine the condition of a pig that was not standing, i.e., that the animal was actually non-ambulatory.
Justice Elena Kagan stated, "But then you have to, you know, ask yourself the question: Are nonambulatory swine so easily excludable as horses?….Why couldn’t the state then exclude swine with various kinds of diseases? And then it would be clear that the state was doing something that the federal statute is supposed to be doing."
Go here for more on the parties and their attorneys, including those who have filed amicus curiae briefs. The Solicitor General, basically the attorney for the Obama administration, has filed an amicus curiae brief in support of the meat industry. The Solicitor General was even given an opportunity for oral argument. The Court, however, denied the humane community including the Humane Society of the United States which filed amici curiae briefs on behalf of the State of California, the opportunity to present oral argument.
The court below, the Ninth Circuit Court of Appeals, refused to prohibit enforcement of new California laws prohibiting the slaughter of downer or non-ambulatory animals. The Ninth Circuit vacated a preliminary injunction stopping enforcement that was issued by the District Court. Nat’l Meat Ass’n v. Brown, 599 F.3d 1093 The Supreme Court is essentially considering the meat industry’s appeal from that decision.
The California law also states that while "in transit or on the premises of a stockyard, auction, market agency, dealer, or slaughterhouse, a nonambulatory animal may not be dragged at any time, or pushed with equipment at any time, but shall be moved with a sling or on a stoneboat or other sled-like or wheeled conveyance." The law requires humane euthanasia for these animals. Cal. Penal Code §599f
NMA and AMI claim the law would mean they would be stopped from slaughtering approximately 2.5% of their pigs. NMA argued that section 599f is preempted by the Federal Meat Inspection Act (FMIA), violates the dormant commerce clause and is unconstitutionally vague.
The Ninth Circuit Court of Appeals found, in essence, that the FMIA, 21 U.S.C. § 603(a), does control inspections at slaughterhouses. "Regulations pursuant to the FMIA require nonambulatory animals to be classified as ‘U.S. Suspect’ and held for further examination. 9 C.F.R. § 309.2(b). If the downer animal shows signs of certain diseases upon inspection, it must be classified as ‘U.S. Condemned’ and disposed of according to specific procedures. See id. §§ 309.4-309.18. But if the animal passes inspection, it may be slaughtered and sold for human consumption. See generally id. § 309.2."
The Court concluded, however, that the "FMIA establishes inspection procedures to ensure animals that are slaughtered are safe for human consumption, but this doesn’t preclude states from banning the slaughter of certain kinds of animals altogether."
The Court elaborated, to wit:
"The district court [said]: A nonambulatory pig is not a `type of meat.’ A pig is a pig. A pig that is laying down is a pig. A pig with three legs is a pig. A fatigued or diseased pig is a pig. Calling it something else does not change the type of meat produced.’ In effect, the district court reasoned that states may ban the slaughter of certain species, but once a state allows a species to be slaughtered, it cannot impose further restrictions. Hogwash.
" States aren’t limited to excluding animals from slaughter on a species-wide basis. What if a state wanted to ban the slaughter of a specific breed of pig but not the entire species? Or to allow wild dogs and horses to be slaughtered, but not domesticated companions? And what if, in response to a population problem, a state only banned the slaughter of female cattle? Or, perhaps due to ethical concerns, prohibited the slaughter of pregnant or newborn animals, or the slaughter of non-free-range animals? Regulating what kinds of animals may be slaughtered calls for a host of practical, moral and public health judgments that go far beyond those made in the FMIA.
"These are the kinds of judgments reserved to the states, and nothing in the FMIA requires states to make them on a species-wide basis or not at all. Federal law regulates the meat inspection process; states are free to decide which animals may be turned into meat."
The Court found basically states can regulate which animals may be slaughtered as long as they don’t conflict, interfere with or duplicate federal law.
The Ninth Circuit did find that California’s humane handling requirements were preempted by federal law. California law prohibits dragging of these animals while federal law allows it. 9 C.F.R. § 313.2(d)(2). Also, while California’s law limits the way downed animals may be moved, federal law allows a number of methods: 9 C.F.R. § 313.2(d)(3) ("Disabled animals and other animals unable to move may be moved, while conscious, on equipment suitable for such purposes; e.g., stone boats."); FSIS Directive 6900.1(V)(E) (suitable equipment includes "forklift or bobcat-type vehicles and self-propelled tractors capable of pulling stone boats (sleds) or similar conveyances, those conveyances themselves, and holding chutes, and a voltmeter or other suitable equipment that is capable of verifying voltage of electric prods attached to AC current.")
Federal regulations still allow slaughter of animals other than cows that are non-ambulatory.
The California law was passed in the wake of the release of an undercover video by the Humane Society of the United States which depicted "images of nonambulatory cows-cows that are unable to stand or walk without assistance-being kicked, electrocuted, dragged with chains and rammed with forklifts at California’s Westland/Hallmark slaughterhouse. Footage also showed some workers trying to get nonambulatory cows to stand by spraying pressurized water into their noses to simulate drowning." Read more about this…. Read about Congressional hearings investigating slaughter.