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`
`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 1 of 38
`
`No. 20-55631
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`NATIONAL PORK PRODUCERS COUNCIL, ET AL.,
`
`
`Plaintiffs-Appellant,
`
`
`v.
`
`KAREN ROSS, ET AL.,
`
`
`Defendant-Appellee,
`
`
`THE HUMANE SOCIETY OF THE UNITED STATES, ET AL.,
`
`
`Intervenor-Defendants-Appellees.
`
`
`On Appeal from the United States District Court
`For the Southern District of California,
`No. 3:19-cv-02324-W-AHG (Hon. Thomas J. Whelan)
`
`
`BRIEF OF HEALTH CARE WITHOUT HARM, THE NATIONAL COUNCIL FOR
`OCCUPATIONAL SAFETY AND HEALTH, THE CONSUMER FEDERATION OF
`AMERICA, AND FOOD & WATER WATCH AS AMICI CURIAE IN SUPPORT OF
`APPELLEES
`
`
`L. Kieran Kieckhefer
`SHEARMAN & STERLING LLP
`535 Mission St., 25th Fl.
`San Francisco, CA 94105
`Telephone: 1.415.616.1100
`Facsimile: 1.415.616.1301
`kieran.kieckhefer@shearman.com
`
`Ian E. Roberts
`SHEARMAN & STERLING LLP
`2828 North Harwood St., 18th Fl.
`Dallas, TX 75201
`Telephone: 1.214.271.5777
`Facsimile: 1.214.271.5788
`ian.roberts@shearman.com
`
`Matthew G. Berkowitz
`Yue (Joy) Wang
`SHEARMAN & STERLING LLP
`1460 El Camino Real, 2nd Fl.
`Menlo Park, CA 94025
`Telephone: 650.838.3600
`Facsimile: 650.838.3699
`matt.berkowitz@shearman.com
`joy.wang@shearman.com
`
`Attorneys for Health Care Without Harm, National Council for
`Occupational Safety and Health, Consumer Federation of
`America, and Food & Water Watch
`
`
`
`

`

`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 2 of 38
`
`
`
`CORPORATE DISCLOSURE STATEMENT
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae Health
`
`Care Without Harm states that it is not publicly traded, has no parent company, and
`
`no publicly traded company owns 10% or more of its stock.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae
`
`National Council for Occupational Safety and Health states that it is not publicly
`
`traded, has no parent company, and no publicly traded company owns 10% or
`
`more of its stock.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae
`
`Consumer Federation of America states that it is not publicly traded, has no parent
`
`company, and no publicly traded company owns 10% or more of its stock.
`
`Pursuant to Federal Rule of Appellate Procedure 26.1, amicus curiae Food
`
`& Water Watch states that it is not publicly traded, has no parent company, and no
`
`publicly traded company owns 10% or more of its stock.
`
`Dated: December 7, 2020
`
`Respectfully submitted,
`
`
`
`
`SHEARMAN & STERLING LLP
`
`By:
`
`
`/s/ Matthew G. Berkowitz
`Matthew G. Berkowitz
`
`Attorney for Health Care Without
`Harm, National Council for
`Occupational Safety and Health,
`Consumer Federation of America, and
`Food & Water Watch
`
`
`
`

`

`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 3 of 38
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`
`
`TABLE OF CONTENTS
`
`
`
`
`
`
`
`PAGE
`Statement of Compliance with Rule 29 ..................................................................... 1
`Interests of Amici Curiae ........................................................................................... 1
`Health Care Without Harm ................................................................... 1
`National Council for Occupational Safety and Health .......................... 2
` Consumer Federation of America ......................................................... 2
` Food & Water Watch ............................................................................ 4
`Introduction ................................................................................................................ 5
`Argument.................................................................................................................... 7
`California Is Entitled to Promulgate Non-Discriminatory
`Standards Affecting Public Health and Safety, as Well as
`Animal Cruelty, Without Being Second Guessed by Courts on
`the Efficacy of those Standards in Achieving the Stated Goals. ........... 7
`Industrial Pork Production, A Documented Source of Infectious
`Disease, Poses a Profound Danger to Public Health. .......................... 10
`Proposition 12 Addresses Legitimate Animal Cruelty Concerns. ...... 16
` The Court Should Not Limit States’ Exercise of Police Powers
`to Protect The Health and Safety of Their Own Citizens. .................. 21
` Appellants Complain Only of the Effects of Proposition 12 On
`Their Own Business, Not On the Pork Market. .................................. 28
` Conclusion ........................................................................................... 28
`
`
`
`
`
`
`
`
`
`
`
`i
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`

`

`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 4 of 38
`
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris,
`729 F.3d 937 (9th Cir. 2013) ........................................................................ 6, 8, 9
`C & A Carbone, Inc. v. Clarkstown,
`511 U.S. 383 (1994) .............................................................................................. 7
`Huron Portland Cement Co. v. Detroit,
`362 U.S. 440 (1960) .............................................................................................. 8
`McKiver v. Murphy-Brown,
`LLC, No. 19-1019, ---F.3d---, 2020 WL 6787917 (4th Cir. Nov.
`19, 2020) (Wilkinson, J., concurring) ..........................................................passim
`New State Ice Co. v. Liebmann,
`285 U.S. 262 (1932) (Brandeis, J. dissenting) .............................................. 21, 22
`Pac. Nw. Venison Producers v. Smitch,
`20 F.3d 1008 (9th Cir. 1994) ............................................................................ 6, 9
`U.S. v. Lopez,
`514 U.S. 549 (1995) ............................................................................................ 22
`Statutes
`Cal. Health & Safety Code § 25982........................................................................... 5
`Other Authorities
`About Antibiotic Resistance, Ctrs. For Disease Control & Prevention,
`https://www.cdc.gov/drugresistance/about.html (last accessed Dec.
`2, 2020) ............................................................................................................... 14
`Almond Leaf Scorch, UC IPM (Aug. 2017),
`https://www2.ipm.ucanr.edu/agriculture/almond/Almond-Leaf-
`Scorch/ ................................................................................................................ 27
`Am. Hist. Documents 1000-1904, 43 Harv. Classics 66, 79 (C. Eliot
`ed. 1910) ............................................................................................................... 8
`
`ii
`
`

`

`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 5 of 38
`
`
`
`Animal Feeding Operations, U.S. Dep’t Agric.,
`https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/plantsani
`mals/livestock/afo/ (last accessed Dec. 4, 2020) ................................................ 11
`Antimicrobial resistance, World Health Org. (Jul. 27, 2017),
`https://www.who.int/ news-room/q-a-detail/antimicrobial-
`resistance ............................................................................................................. 14
`Dana Cole, Lori Todd, & Steve Wing, Concentrated Swine Feeding
`Operations and Public Health: A Review of Occupational and
`Community Health Effects, 108 Envtl. Health Perspectives 685
`(2000) available at https://www.ncbi.nlm.
`nih.gov/pmc/articles/PMC1638284/. ...........................................................passim
`Doris Lin, Learn Why Some Activists Are Avidly Against Eating Veal,
`ThoughtCo. (July 18, 2019), https://www.thoughtco.com/whats-
`wrong-with-veal-127519 .................................................................................... 20
`Dylan Mathews, America’s largest pork producer pledged to make its
`meat more humane. An investigation says it didn’t., Vox (May 8,
`2018, 12:30PM ET), https://tinyurl.com/y5j2hmd3 ........................................... 16
`Federal Rule of Appellate Procedure 29(a)(2) ........................................................... 1
`Food & Water Watch, Antibiotic Resistance 101 (Mar. 6, 2015)
`available at https://www.foodandwaterwatch.org/
`insight/antibiotic-resistance-101 ............................................................. 13, 14, 15
`Food & Water Watch, Factory Farm Nation: 2020 Edition (April
`2020) available at https://www.foodandwater watch.org/
`insight/factory-farm-nation-2020-edition ..................................................... 11, 28
`H1N1 Flu, Ctrs. For Disease Control & Prevention (Nov. 25, 2009),
`https://www.cdc.gov/h1n1flu/information_h1n1_virus_qa.htm ........................ 12
`Harvard Animal L. & Pol’y Program, Legislative Analysis of H.R.
`4879: the “Protect Interstate Commerce Act of 2018” at 37-38
`(2018) available at http://hlsalpp.wpengine.com/what-we-do/
`projects/king-amendment/ ................................................................ 24, 25, 26, 27
`
`iii
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`

`

`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 6 of 38
`
`
`
`Health Care Without Harm, Expanding Antibiotic Stewardship (May
`2014) available at https://noharm-uscanada.org/sites/
`default/files/documents-files/2735/Expanding%20Antibiotic
`%20Stewardship.pdf ........................................................................................... 15
`Higher Welfare For Veal Calves, Compassion in World Farming,
`https://www.ciwf.com/farmed-animals/cows/veal-calves/higher-
`welfare/ (last visited Dec. 5, 2020) ............................................................... 19, 20
`How Our Food System Affects Public Health, Food Print,
`https://foodprint.org/ issues/how-our-food-system-affects-public-
`health/ (last accessed Dec. 4, 2020) .............................................................. 11, 12
`Humane Soc. Int’l, An HSI report: The connection between animal
`agriculture, viral zoonoses, and global pandemics (Sept. 2020)
`available at https://blog.humane society.org/wp-
`content/uploads/2020/10/Animal-agriculture-viral-disease-and-
`pandemics-FINAL-4.pdf ............................................................................... 10, 12
`Jonathan R. Lovvorn & Nancy V. Perry, California Proposition 2: A
`Watershed Moment for Animal Law, 15 Animal L. 149, 152 (2009)
`available at https://www.animallaw.info/article/california-
`proposition-2-watershed-moment-animal-law ............................................. 20, 21
`Katie Couric, Denmark’s Case for Antibiotic-Free Animals, CBS
`(Feb. 10, 2010, 4:20 PM),
`https://www.cbsnews.com/news/denmarks-case-for-antibiotic-free-
`animals/ ............................................................................................................... 15
`Leslie Pray, Antibiotic Resistance, Mutation Rates, and MRSA, 1
`Nature Ed. 30 (2008) available at
`https://www.nature.com/scitable/topicpage/antibiotic-resistance-
`mutation-rates-and-mrsa-28360/ ......................................................................... 14
`Maryn McKenna, Farm Animals Are the Next Big Antibiotic
`Resistance Threat, Wired (Sept. 19, 2019, 02:09 PM),
`https://www.wired.com/story/farm-animals-are-the-next-big-
`antibiotic-resistance-threat/ ........................................................................... 13, 14
`
`iv
`
`

`

`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 7 of 38
`
`
`
`Pew Comm’n Indus. Farm Animal Prod., Putting Meat on the Table:
`Industrial Farm Animal Production in America (Apr. 29, 2008)
`available at https://www.pewtrusts.org/en/research-and-
`analysis/reports/ 0001/01/01/putting-meat-on-the-table .............................. 10, 11
`
`Precautionary Moratorium on New and Expanding Concentrated
`Animal Feeding Operations, Am. Pub. Health Ass’n (Nov. 5,
`2019), https://www.apha.org/ policies-and-advocacy/public-health-
`policy-statements/ policy-database/ 2020/ 01/13/precautionary-
`moratorium-on-new-and-expanding-concentrated-animal-feeding-
`operations ............................................................................................................ 10
`Prevention of Cruelty to Farm Animals Act, Prop. 12 § 2 ........................ 7, 8, 19, 23
`Record-high Antibiotic Sales for Meat and Poultry Production, Pew
`Charitable Trs. (Feb. 6, 2013),
`https://www.pewtrusts.org/en/research-and-analysis
`/articles/2013/02/06/recordhigh-antibiotic-sales-for-meat-and-
`poultry-production# sthash.fTWHXIJP.dpuf ..................................................... 13
`Sigal Samuel, The meat we eat is a pandemic risk, too, Vox (Aug. 20,
`2020, 11:50 AM ET) https://www.vox.com/future-perfect/
`2020/4/22/21228158/coronavirus-pandemic-risk-factory-farming-
`meat ............................................................................................................... 12, 15
`Veal: A Byproduct of the Cruel Dairy Industry, PETA,
`https://www.peta.org/ issues/animals-used-for-food/animals-used-
`food-factsheets/veal-byproduct-cruel-dairy-industry/ (last visited
`Dec. 5, 2020) ....................................................................................................... 20
`
`v
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`

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`
`
`STATEMENT OF COMPLIANCE WITH RULE 29
`
`Pursuant to Federal Rule of Appellate Procedure 29(a)(2), amici curiae
`
`submit this brief without an accompanying motion for leave to file because all
`
`parties have consented to its filing. No counsel for any party authored this brief in
`
`whole or in part and no entity or person—aside from amici curiae, their members
`
`where applicable, and the undersigned pro bono counsel—made any monetary
`
`contribution intended to fund the preparation or submission of this brief.
`
`INTERESTS OF AMICI CURIAE
`
`
`
`Health Care Without Harm
`Health Care Without Harm (“HCWH”) is an international nongovernmental
`
`organization (“NGO”) that works to transform health care worldwide so that it
`
`reduces its environmental footprint, becomes a community anchor for sustainability,
`
`and a leader in the global movement for environmental health and justice. With the
`
`leadership and expertise HCWH’s Healthy Food In Health Care Program, dedicated
`
`staff at more than 1,500 health care facilities across North America are
`
`implementing policies and programs that support sustainable food systems. Using
`
`an environmental nutrition framework, they leverage their respected voices,
`
`purchasing power, investments and other assets to develop food systems that
`
`conserve and renews natural resources, advances social justice and animal welfare,
`
`builds community wealth, and fulfills the food and nutrition needs of all eaters now
`
`1
`
`

`

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`
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`and into the future. HCWH brings a unique perspective to this case because of its
`
`prior experience with and knowledge of the impact of antibiotic overuse in animal
`
`agriculture on the health care sector—and on public health in general.
`
` National Council for Occupational Safety and Health
`The National Council for Occupational Safety and Health (“National COSH”)
`
`is a 501(c)(3) organization dedicated to promoting safe and healthy working
`
`conditions for all working people through organizing and advocacy. It seeks to
`
`encourage workers to take action to protect their safety and health, promote
`
`protection from retaliation under job safety laws, and provide quality information
`
`and training about hazards on the job and workers’ rights. National COSH brings a
`
`unique perspective to this case because of its prior experience with large-scale
`
`factory farming and the impacts of the same on various health and safety
`
`considerations.
`
` Consumer Federation of America
`Consumer Federation of America (“the CFA”) is an association of non-profit
`
`consumer organizations that was established in 1968 to advance the consumer
`
`interest through research, advocacy, and education. As a research organization,
`
`CFA investigates consumer issues, behavior, and attitudes through surveys, focus
`
`groups, investigative reports, economic analysis, and policy analysis. The findings
`
`of such research are published in reports that assist consumer advocates and
`
`2
`
`

`

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`
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`policymakers as well as individual consumers. They provide an important basis for
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`the policy positions and work of the organization. As an advocacy organization,
`
`CFA works to advance pro-consumer policies on a variety of issues before
`
`Congress, the White House, federal and state regulatory agencies, state legislatures,
`
`and the courts. The CFA communicates and works with public officials to promote
`
`beneficial policies, oppose harmful ones, and ensure a balance debate on issues
`
`important to consumers.
`
`Through its Food Policy Institute, the CFA conducts research and advocacy to
`
`promote a safer, healthier, and more affordable food supply. The CFA also
`
`coordinates the Safe Food Coalition, which is dedicated to reducing the burden of
`
`foodborne illness in the United States by improving government food inspection
`
`programs. The CFA has previously advocated against the “Protect Interstate
`
`Commerce Act”—also known as the “King Amendment”—which would have
`
`required states to authorize the sale of “any agricultural product” not prohibited
`
`under federal law, and would have wiped out dozens of states laws aimed at
`
`protecting food safety, animal welfare, and the environment, among other state
`
`interests. The CFA thus brings a unique perspective to this case because of its long-
`
`standing support for state laws aimed at protecting the very same state interests at
`
`stake in the present appeal.
`
`3
`
`

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`
`
` Food & Water Watch
`Food & Water Watch is a 501(c)(3) non-profit 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. Food & Water
`
`Watch mobilizes regular people to build political power to move bold and
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`uncompromised solutions to the most pressing food, water, and climate problems of
`
`our time. Food & Water Watch works to protect people’s health, communities, and
`
`democracy from the growing destructive power of the most powerful economic
`
`interests. As part of its mission, Food & Water Watch works with and advocates for
`
`small family farms and ranches against corporate control and abuse of food and
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`water resources, including campaigning for a ban of factory farms. The practices of
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`factory farms place our public health and food supply at risk, pollute the
`
`environment and our drinking water, and wreck rural communities —while
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`increasing corporate control over our food. Food & Water Watch brings a unique
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`perspective to this case because of its prior experience with and knowledge of safe
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`and sustainable farming practices and the long-term harms of factory farming.
`
`4
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`

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`
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`INTRODUCTION
`
`The amici write separately to emphasize the importance of states’ rights to
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`regulate, in a non-discriminatory manner, the sale of food products affecting human
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`health and safety, and implicating animal cruelty issues, without judicial second-
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`guessing of the empirical foundation of the regulations.
`
`There should be no question that California can, for example, ban the sale of
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`pork from pigs (wherever raised) that were fed poison, raised in housing containing
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`asbestos, or loaded full of antibiotics prior to slaughter. All of these are clearly
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`issues affecting the health and safety of California citizens and are well within a
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`state’s police power, regardless of whether such regulations negatively affect the
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`bottom line of pork producers.
`
`Proposition 12 is no different. While not as facially obvious as the above
`
`examples, there is substantial evidence demonstrating that Proposition 12 addresses
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`significant health and safety risks to California citizens, at least by minimizing risk
`
`of the spread of the swine flu (an illness arguably as serious as COVID-19) and
`
`decreasing incentives for excessive antibiotic use (which is often used as an
`
`alternative to simply increasing standards of care for cleanliness and nutrition).
`
`Proposition 12 also addresses animal cruelty issues in a similar manner to California
`
`Health & Safety Code § 25982 (banning the sale of products that are the result of
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`force-feeding birds to abnormally enlarge their livers), which this Court previously
`
`5
`
`

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`
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`upheld in the face of a dormant commerce clause challenge. Compare Ass’n des
`
`Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937 (9th Cir. 2013).
`
`These are both laudable state objectives, are well within California’s police power,
`
`and are achieved by Proposition 12 in a non-discriminatory manner, without regard
`
`to where the animals are raised or a preference for one state’s suppliers over another.
`
`While Appellants question the efficacy of Proposition 12 in achieving these
`
`state objectives (see Dkt. No. 14-1 at 71-72), they do not seriously question the
`
`legitimacy of the objectives themselves. It is not the role or expertise of the Courts
`
`to put “science on trial,” and not the right of Appellants—a collection of large-scale
`
`industrial pork producers—to supplant their own judgment, view of the facts, or
`
`economic motivations for that of California’s citizens, who overwhelmingly passed
`
`Proposition 12 because they want the comfort of knowing that the food products
`
`they purchase are not disease-ridden or produced using excessive antibiotics or
`
`inhumane methods. See Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 1017
`
`(9th Cir. 1994) (recognizing that courts should not second-guess the empirical
`
`judgments underlying the utility of legislation (quoting CTS Corp. v. Dynamics
`
`Corp. of Am., 481 U.S. 69, 92 (1987))). Indeed, other primarily export-driven states,
`
`or even Congress, may have entirely different motivations in regulating this
`
`conduct—or in not regulating it all. California should have every right to protect the
`
`6
`
`

`

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`
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`integrity of the food sold to, and consumed by, its own citizens without concern for
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`certain industrial pork producers’ profit margins.
`
`Finally, Proposition 12 does not place any burden on the interstate market for
`
`pork products. Appellants’ complaint simply alleged that certain pork producers
`
`(consciously) chose to set up their supply chain in a manner that will require cost
`
`expenditures if they want to keep selling their products in California. They did not
`
`allege, nor could they allege, that the sow cage dimensions requirements of
`
`Proposition 12 have any actual effect on the market for pork itself. Nor do they
`
`allege any intent of economic protectionism for the benefit of in-state producers, the
`
`prohibition of which is the “central rationale” of the dormant commerce clause
`
`doctrine. See C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 390 (1994). The
`
`judgement of the District Court should be affirmed.
`
`ARGUMENT
`
`
`
`California Is Entitled to Promulgate Non-Discriminatory Standards
`Affecting Public Health and Safety, as Well as Animal Cruelty, Without
`Being Second Guessed by Courts on the Efficacy of those Standards in
`Achieving the Stated Goals.
`The purpose of Proposition 12 is to “prevent animal cruelty by phasing out
`
`extreme methods of farm animal confinement, which also threaten the health and
`
`safety of California consumers, and increase the risk of foodborne illness and
`
`associated negative fiscal impacts on the State of California.” Prevention of Cruelty
`
`to Farm Animals Act, Prop. 12 § 2. Both purposes represent legitimate exercises of
`
`7
`
`

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`
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`the state’s police power and are implemented by Proposition 12 in a non-
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`discriminatory manner. See Huron Portland Cement Co. v. Detroit, 362 U.S. 440,
`
`443–444 (1960) (noting that the commerce clause was “never intended to cut the
`
`States off from legislating on all subjects relating to the health, life, and safety of
`
`their citizens, though the legislation might indirectly affect the commerce of the
`
`country.” (quoting Sherlock v. Alling, 93 U.S. 99 (1876))). The same is true with
`
`respect to animal cruelty issues. See Ass’n des Eleveurs, 729 F.3d at 952 (citing U.S.
`
`v. Stevens, 559 U.S. 460, 469 (2010) (“[T]he prohibition of animal cruelty itself has
`
`a long history in American law, starting with the early settlement of the Colonies.”)
`
`(citing The Body of Liberties § 92 (Mass. Bay Colony 1641), reprinted in Am. Hist.
`
`Documents 1000-1904, 43 Harv. Classics 66, 79 (C. Eliot ed. 1910) (“No man shall
`
`exercise any Tirranny or Crueltie towards any bruite Creature which are usuallie
`
`kept for man’s use”))). Importantly, Appellants do not dispute that these are
`
`legitimate state objectives. They simply dispute that Proposition 12 is effective or
`
`necessary to achieve those objectives and complain that it affects animal cruelty
`
`occurring both inside and outside of California.
`
`While Appellants assert there was a fact issue about the efficacy of
`
`Proposition 12, it is not the role of the courts to engage in a fact-based “science-on-
`
`trial” analysis of whether a proposition sufficiently achieves legitimate state goals;
`
`here, there is substantial credible evidence (as set out in the sections below)
`
`8
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`

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`
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`demonstrating that the regulated methods of animal confinement are both cruel and
`
`threaten health and safety of California consumers, which should be per se sufficient
`
`to justify the initiative’s benefits, regardless of whether the Appellants have a
`
`different take on the science. As this Court has previously recognized, “[t]he
`
`Supreme Court has frequently admonished that courts should not ‘second guess the
`
`empirical judgments of lawmakers concerning the utility of legislation.’” Pac. Nw.
`
`Venison Producers, 20 F.3d at 1017 (quoting CTS Corp. v. Dynamics Corp. of Am.,
`
`481 U.S. 69, 92 (1987)). Nor is it the role of courts to “invalidate a statute based on
`
`the availability of less burdensome alternatives,” unless that statute imposes a
`
`“significant burden on interstate commerce,” which, as Appellees explained, is not
`
`the case here. Ass’n des Eleveurs, 729 F.3d at 953 (citing Nat’l Ass’n of
`
`Optometrists & Opticians v. Harris, 682 F.3d 1144, 1157 (9th Cir. 2012)); see Dkt.
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`Nos. 35 & 36.
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`In sum, given the important and legitimate state objectives addressed by
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`Proposition 12, and the significant credible evidence linking the proscriptions in
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`Proposition 12 to these objectives (as set out in the sections below), the District
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`Court was correct to defer to the judgment of California’s citizens and dismiss
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`Appellants’ complaint.
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`9
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`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 17 of 38
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`Industrial Pork Production, A Documented Source of Infectious Disease,
`Poses a Profound Danger to Public Health.
`In recent decades, animal agriculture has shifted away from systems of
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`traditional family farms to systems of industrial farm animal production dominated
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`by a few producers whose streamlined, automated, and standardized animal
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`husbandry practices have reduced the number of workers needed to produce even
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`more animals for meat production.1 In the pork industry—as with the poultry, egg,
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`and other meat-producing industries—these changes have led to the confinement of
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`increasingly large numbers of pigs in relatively small, enclosed facilities that restrict
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`their movement.2 In concentrated animal feeding operations (“CAFOs”), the most
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`
`1 See Pew Comm’n Indus. Farm Animal Prod., Putting Meat on the Table:
`Industrial Farm Animal Production in America at 1-3 (Apr. 29, 2008) (“2008 Pew
`Study”) available at https://www.pewtrusts.org/en/research-and-analysis/reports/
`0001/01/01/putting-meat-on-the-table; Humane Soc. Int’l, An HSI report: The
`connection between animal agriculture, viral zoonoses, and global pandemics at 2-
`3 (Sept. 2020) (“HSI Report”) available at https://blog.humane society.org/wp-
`content/uploads/2020/10/Animal-agriculture-viral-disease-and-pandemics-FINAL-
`4.pdf; Precautionary Moratorium on New and Expanding Concentrated Animal
`Feeding Operations, Am. Pub. Health Ass’n (Nov. 5, 2019), https://www.apha.org/
`policies-and-advocacy/public-health-policy-statements/ policy-database/ 2020/
`01/13/precautionary-moratorium-on-new-and-expanding-concentrated-animal-
`feeding-operations.
`2 2008 Pew Study at 22 (recommending phasing out all intensive confinement
`systems, such as swine gestation crates and restrictive swine farrowing crates, and
`noting the capital investment in such systems in swine production); Dana Cole,
`Lori Todd, & Steve Wing, Concentrated Swine Feeding Operations and Public
`Health: A Review of Occupational and Community Health Effects, 108 Envtl.
`Health Perspectives 685 (2000) (“Cole”) available at https://www.ncbi.nlm.
`nih.gov/pmc/articles/PMC1638284/.
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`
`10
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`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 18 of 38
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`extreme type of such facilities, thousands of animals are confined to a single
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`facility.3
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`As the Fourth Circuit recently recognized, the animal husbandry practices
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`required to confine pigs in modern high-density facilities have dire consequences for
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`not only the health and welfare of the animals,4 but also for worker safety, food
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`safety, and public health. See McKiver v. Murphy-Brown, LLC, No. 19-1019, ---
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`F.3d---, 2020 WL 6787917 at *29-32 (4th Cir. Nov. 19, 2020) (Wilkinson, J.,
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`concurring). Such facilities generate substantial amounts of manure, urine, and
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`other waste materials that generate air and water pollutants, including infectious (and
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`antibiotic-resistant) bacteria, viruses, and fungi, that contaminate the local air and
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`ground water supplies.5 Air- and water-borne chemical pollutants from these
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`facilities not only cause illness in the pigs, but can also directly cause chronic
`
`
`3See 2008 Pew Study at 22; Animal Feeding Operations, U.S. Dep’t Agric.,
`https://www.nrcs.usda.gov/wps/portal/nrcs/main/national/plantsanimals/livestock/a
`fo/ (last accessed Dec. 4, 2020).
`4 See infra, Section III.
`5 See Cole at 685-88; Food & Water Watch, Factory Farm Nation: 2020 Edition at
`2-4 (April 2020) (“Factory Farm Nation”) available at https://www.foodandwater
`watch.org/ insight/factory-farm-nation-2020-edition; How Our Food System
`Affects Public Health, Food Print, https://foodprint.org/ issues/how-our-food-
`system-affects-public-health/ (last accessed Dec. 4, 2020) (“Food & Pub. Health”).
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`11
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`Case: 20-55631, 12/07/2020, ID: 11917278, DktEntry: 48, Page 19 of 38
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`respiratory illnesses, among other illnesses, in workers and surrounding
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`communities. See McKiver, 2020 WL 6787917 at *30.6
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`The air- and water-borne bacteria, viruses, and fungi further spread disease
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`among the closely-confined pigs—and humans are not far behind because many of
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`the diseases carried by the bacteria, viruses, and fungi can also infect humans, either
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`through contact with the pigs and their waste or through contact with infected meat
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`or other infected humans. See McKiver, 2020 WL 6787917 at *30 (Wilkinson, J.,
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`concurring).7 In particular, because pigs can be infected not only with swine, but
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`also human and avian influenza, they are “ideal mixing vessels for influenza
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`viruses.”8 Most famously, the 2009 H1N1 influenza virus (or “swine flu”), which
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`originated from pigs imported from the United States, carried gene segments that
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`originated from humans, birds, North American pigs, and Eurasian pigs. 9 The 2009
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`H1N1 outbreak, which was declared a pandemic two months after the identification
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`of H1N1 in June 2009, resulted in millions of infections and 150,000 to 575,000
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`
`6 See also Cole at 685-94; Food & Pub. Health.
`7 See Cole at 685-94.
`8 HSI Report at 6, 9-11; see also Sigal Samuel, The meat we eat is a pandemic risk,
`too, Vox (Aug. 20, 2020, 11:50 AM ET) https://www.vox.com/future-perfect/
`2020/4/22/21228158/coronavirus-pandemic-risk-factory-farming-meat.
`9 HSI Report at 9-11; H1N1 Flu, Ctrs. For Disease Control & Prevention (Nov. 25,
`2009), https:/