Supreme Court Watch High court takes up meaty preemption case State law requires downed livestock to be immediately euthanized

By Kimberly Atkins The Daily Record Newswire Sometimes a pig is just a pig. But when a California law requires meat manufacturers to euthanize non-ambulatory pigs and other livestock before they can be slaughtered for processing, it takes the U.S. Supreme Court to decide the meaty issue of whether that state statute is preempted by federal law. The case of National Meat Association v. Harris involves a suit by a national association of meat packers and processors challenging California Penal Code §599f, which prohibits the slaughter of non-ambulatory livestock for human consumption. The law requires that downed livestock be immediately euthanized. Violation of the law is punishable by up to a year in prison and a $20,000 fine. The association alleges that the law is preempted by the Federal Meat Inspection Act, which calls for a federal meat inspector to determine whether a non-ambulatory animal is fit for human consumption. The state of California argued that the law was not preempted because states are allowed to regulate what kinds of meat can be sold for human consumption, and "non-ambulatory" describes a type of meat. The district court disagreed, holding that the state law was barred by express and conflict preemption, and noting that a "non-ambulatory pig is not a 'type of meat.' A pig is a pig. A pig that is lying down is a pig." But the 9th Circuit reversed, calling the district court's reasoning "hogwash." Since the law does not "duplicate federal procedures" but rather prevents the slaughter of animals "that are unable to walk to their death," the court ruled, it does not impermissibly regulate slaughterhouse operations. The U.S. Supreme Court granted certiorari. 'Lassie and Kitty are no good?' Steven J. Wells, a partner in the Minneapolis office of Dorsey & Whitney, argued on the association's behalf that the federal rule covers every aspect of the meat production process. "Congress has unmistakably ordained that one set of rules govern animal handling and treatment, inspection and determinations of meat quality, [and] those rules kick in at the slaughterhouse gate and they continue through the sale of the meat by the slaughterhouse," Wells said. "So [what if] there is a law that says you can't slaughter cats, dogs or horses for consumption," asked Justice Sonia Sotomayor. "Is that preempted?" "No, because those are not an amenable species that are subject to inspection at a federally inspected slaughterhouse" under the statute, Wells said. "Doesn't it seem strange [that] the Federal Meat Inspection Act speaks to an issue like that?" asked Justice Samuel Alito. "This doesn't have anything [to] do with food safety." "Congress has made a moral judgment that the following species are amenable and may be inspected on slaughterhouse premises, and to the extent that the state is making a different moral judgment" it is preempted, Wells said. "And that presumably is why Congress excluded cats and dogs?" Justice Antonin Scalia asked. "Correct," Wells said. "So Lassie and Kitty are no good?" "Congress made a moral judgment," Wells said. Benjamin J. Horwich, assistant to the U.S. solicitor general, argued as amicus in support of the association. He asserted that the state law places different requirements for animal handling on meat processors. "So is there anything saved [for] the states?" asked Justice Ruth Bader Ginsburg. "There is a savings clause" in the federal law. "Absolutely," Horwich said. "State laws of general applicability, to the extent they don't in some particular application introduce into the scope of the FMIA, ... would apply." 'Euthanize the cow' Susan K. Smith, a California deputy attorney general based in Los Angeles, argued that the state law regulates animals that will never become food, whereas the federal law governs food products. "California is not regulating animals that are going to be turned into meat," Smith said. "Well, no, no," Scalia said. "Provisions of the [federal] Act also require humane treatment of the animals while they are being processed. That has nothing to do with whether the meat is any good. It has to do with humane treatment of the animals." "The humane treatment of the animals deals with animals in the connection of slaughter or while being slaughtered," Smith said. "And the animals that California is regulating, the non-ambulatory animals that we're withdrawing from the process, will not be slaughtered. They will not be turned into meat." Justice Stephen Breyer pointed out that the state law differs from federal law the moment an animal stops walking, before the determination of whether it can be slaughtered for food. "Your law does require [processors] to go over and immediately euthanize the cow," Breyer said, noting that federal law would let an inspector examine the animal. "And therefore, your law seems an additional requirement in respect to the operations of a federally-inspected meatpacking facility." "The purpose of the [federal inspection provision] is to determine if the animal's meat will be wholesome and unadulterated," Smith said. "To the extent that the pre-inspection or the inspection also finds diseases that can be passed on to other animals [is] certainly a benefit, but it's not part of the purpose of the Federal Meat Inspection Act." Published: Mon, Nov 14, 2011