Federal Preemption, Nonambulatory Cows and "Hogwash"

It is not this editor’s intent in this post to indicate her feelings on agricultural animal husbandry practices. In contrast the focus here centers on National Meat Association v. Brown, 2010 WL 1225477 (C.A. 9 Cal.) (2010), a case that portends of possible forthcoming developments with potential impact for the nation’s meat processors, animal rights activists, and preemption scholars grounded in agriculture law. Ultimately the case proves intriguing for students of Agricultural Law as to the nature of federal/state relationships, the diversity of plaintiffs and defendants involved with further contemplations of feeding the nation and the legal mechanisms employed to ensure food safety.

The facts reveal that on January 30, 2008, The Humane Society released a video depicting images of nonambulatory cows and triggered the largest beef recall in the United States. The videos revealed cows that had been kicked, electrocuted, dragged with chains and rammed with forklifts at California's Westland/Hallmark slaughterhouse. The reason for such tactics was to enable the cows to stand or walk. Other methods were employed but compounding the issue including warnings from public health officials that downed cattle might impact consumers’ health. In response California promulgated a state law that banned the slaughter of nonambulatory animals.

Before implementation of the statute the National Meat Association (“NMA”) comprising a trade association that represented packers and processors of swine livestock and pork production filed an action in federal district court seeking declaratory and injunctive relief. NMA asserted that the Federal Meat Inspection Act (“FMIA”) preempted California law. The party defendants at the appellate level included a range of animal rights groups including The Humane Society, Farm Sanctuary, Humane Farming Association, and the Animal Legal Defense Fund. The case is challenging and could prove of value to the study of Agricultural Law for several reasons. I am thus tempted to include it in my Agricultural Law Seminar. Any thoughts to the contrary of course would be greatly appreciated.

First, NMA established that the FMIA “did not expressly preempt California statute banning slaughter of nonambulatory animals.” The rationale stemmed in part from the interpretation that the “state ban did not require any additional or different inspections than did federal law.” Second, the NMA nonetheless established the substantial likelihood of success on the merits of the claim that the inhumane treatment ban was expressly preempted. This resulted from the distinctions between federal law’s broader measures and use of additional equipment in treating downer animals as opposed to the California statute ban on such practices. At this juncture could NMA rest on its laurels?

To its detriment NMA did not succeed on the merits of its plea because it also failed to demonstrate a critical element in their request for an injunction— irreparable harm. Undermining its plea moreover highlights NMA failing to show in the alternative that the “public interest and balance of hardship favored injunctive relief.” The appellate court therefore vacated the lower court’s preliminary injunction ruling. So far and at this moment of time good news for the party defendants with a few lessons for agricultural law students.

At times law students default to federal law without regard to its relationship to state law. For agricultural law students the case illustrates the nature of federal state hierarchies with the complexities of states attempting to regulate food production. For example, the appellate court in its rationale against the reasoning that states were barred from adding their own regulatory structures declared: . . . .“Hogwash.”

This language wanders into the realm of legal realism adding to the jurisprudence of agricultural law. How? The appellate court’s contextual framework tells us that 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 not the entire species? Or to allow wild dogs and horses to be slaughter but not domesticated companions?. . . .” Other examples are provided but here the court reasons: “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.” In other words, “. . . .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 case underscores further reasons as to whether to include it in the study of agricultural law but its value reaches into the entangled nature of preliminary injunctive relief with appellate court rulings. The rules in force underscore how equitable constraints can sustain a law. The decision and its contextual framework thus bring to mind how law shapes the contours of agricultural practices. The decision speaks volumes of the future and unknown possibilities for all parties as to whether or not irreparable harm will ultimately be shown at some point in the future. While I am sure there are more theoretical legal lessons one more emerges. Specifically and whether animal rights activists will be able to participate and ultimately influence the nation’s food production systems.