Metropolitan News-Enterprise


Thursday, April 1, 2010


Page 3


Court Rules California Can Regulate Slaughter of ‘Downer’ Pigs


By SHERRI M. OKAMOTO, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday threw out a preliminary injunction against enforcement of a California statute banning the slaughter of animals unable to walk to their death.

In a decision by Chief Judge Alex Kozinski, the panel rejected claims by swine slaughterhouses that the Federal Meat Inspection Act pre-empted Penal Code Sec. 599f’s exclusion of non-ambulatory animals and humane handling requirements.

In the wake of the largest beef recall in United States history, triggered by a video depicting animals being kicked, electrocuted, dragged with chains and rammed with forklifts at California’s Westland/Hallmark slaughterhouse, the state amended Sec. 599f to ban the receipt and slaughter of so-called “downer” animals and require such animals be “humanely euthanize[d].”

Before the amended law took effect, the National Meat Association—a trade association representing packers and processors of swine livestock and pork products—filed suit in federal court, seeking declaratory and injunctive relief barring the application of the statute to federally inspected swine slaughterhouses.

Amended Law

The group claimed the law, as amended, would prevent the slaughter of nearly three percent of their members’ pigs, and contended that the FMIA—which expressly precludes states from imposing any requirements different or in addition to those “within the scope of this chapter with respect to premises, facilities and operations of any establishment at which inspection is provided”—pre-empted the state law.

U.S. District Judge Lawrence J. O’Neill of the Eastern District of California agreed and issued a preliminary injunction against enforcement of the state law.

However Kozinski emphasized that the FMIA pre-empts state regulation of the “premises, facilities and operations” of slaughterhouses, and said the state law “deals with none of these.”

He explained:

“[T]he 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.”

Horse Cases

Kozinski supported his conclusion with 2007 decisions by the Seventh Circuit in Cavel Int’l, Inc. v. Madigan 500 F.3d 551 and the Fifth Circuit in Empacadora de Carnes de Fresnillo v. Curry, 476 F.3d 326, which both upheld state bans on the slaughter of horses for human consumption.

O’Neill had distinguished the case from Cavel and Empacadora, finding that states could ban the slaughter of a certain species, but no further restrictions. He wrote:

“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.”

But Kozinski dismissed that reasoning as “[h]ogwash.”

He explained that the regulation of the types of animals that may be slaughtered “calls for a host of practical, moral and public health judgments that go far beyond those made in the FMIA,” and said that nothing in the act requires states to make them on a species-wide basis.

While federal law regulates the meat inspection process, he said, “states are free to decide which animals may be turned into meat.”

Kozinski concluded that the California statute was not impliedly pre-empted by federal law either as it was not physically impossible to comply with both the state and federal law, and Sec. 599f did not pose an obstacle to the FMIA’s goal of protecting the health and welfare of consumers.

He added that the association was “likely to succeed” on its express preemption claim regarding the portions of state law mandating the humane handling of animals.

However, the judge said that the group had not demonstrated a likelihood of irreparable injury or that the balance of equities and the public interest tipped in its favor, so the district court’s grant of a preliminary injunction as to those provisions was an abuse of discretion.

The case is National Meat Association v. Brown, 09-15483.


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