Judge Kozinski: Argument that Once State Allows Slaughter of Pigs it Cannot Further Regulate what Types of Pigs may be Slaughtered for Human Consumption is “Hogwash”

April 7, 2010

By Riëtte van Laack

Late last month, the U.S. Court of Appeals for the Ninth Circuit vacated a district court’s injunction against California’s prohibition of the use of non-ambulatory pigs for use in human consumption, Cal. Pen. Code § 599f.  Last year, the district court granted plaintiff National Meat Association (“NMA”) a preliminary injunction against implementation of Section 599f.  According to NMA, the ban would effectively prevent the slaughter of approximately 2.5% of pigs brought to slaughter.  The district court concluded that section 599f was preempted by the Federal Meat Inspection Act (“FMIA”) because downer pigs were not “a type of meat.”  Once California allowed the slaughter of pigs, it could not further restrict what kinds of pigs are eligible for slaughter.  Consequently, the district court granted a preliminary injunction.

The Ninth Circuit disagreed, labeling the district court’s holding as “hogwash.”  According to the Court, “regulating what kinds of animals may be slaughtered [concerns] practical, moral and public health judgments” typically reserved for states.  While FMIA does preempts state laws regulating premises, facilities and operations, those concerning the types of animals that may be slaughtered are not expressly limited by the FMIA.   Moreover, section 599f does not duplicate, interfere with or conflict with procedures under the FMIA.  Thus, section 599f is not expressly or implicitly preempted by the FMIA.  The Court vacated the preliminary injunction and the entire matter was remanded to the district court for further proceedings.

Categories: Drug Development