Sherry F. Colb

Federal Appeals Court Rejects Preemption Claim Against California "Downed Animal" Law: A Victory for Animal Rights?

By SHERRY F. COLB
Wednesday, April 14, 2010

Last month, in National Meat Association v. Brown, a decision lauded by "animal-rights groups," the U.S. Court of Appeals for the Ninth Circuit reversed a district court's decision preliminarily enjoining enforcement of California Penal Code 599f (the "downed animal law"). The law in question bans the slaughter of animals who are unable to stand or walk to their death without assistance, and requires that a slaughterhouse holding such animals immediately euthanize them in a humane fashion.

The National Meat Association (NMA), a trade association representing those who pack and "process" live and dead pigs for human consumption, brought a lawsuit asserting – among other claims – that the Federal Meat Inspection Act (FMIA), which requires the inspection and labeling of animals prior to their slaughter, preempts state legislation like the downed animal law. The NMA contends that enforcement of this law, moreover, would prevent the slaughter of at least 2.5% of "their" pigs, on whom they could otherwise profit.

The district court agreed with NMA's preemption claim and preliminarily enjoined enforcement of the California law. The Ninth Circuit, however, reversed, finding that while federal law regulates what happens to animals who will be slaughtered, state law may consistently – and thus permissibly – decide which animals fall completely outside the category of those who will be slaughtered in the first place.

In his opinion, Chief Judge Kozinski analogizes the two legal regimes with a hypothetical federal law regulating the safety of fireworks, if and when they are used, leaving states free to prohibit altogether the use of fireworks.

In this column, I will take up the question of whether the California law that was upheld by the Ninth Circuit (at least for the time being) offers a benefit to farmed animals, and, if so, what that benefit is.

How the California Law Came to Pass

In 2008, the Humane Society of the United States released a video (taken at an undercover, random inspection) depicting conscious, non-ambulatory cows at a California slaughterhouse being kicked, electrocuted, dragged with chains, and rammed with forklifts. The footage also included scenes of slaughterhouse workers using water hoses to fill the cows' airways and thus cause their suffocation, and otherwise attempting to motivate the cows to stand up and walk to slaughter, despite their inability to do so.

The video inspired two reactions. First, people were upset by the cruelty of what they had witnessed. Second, people were worried about consuming the flesh of animals who were likely quite ill when they perished, given their inability to walk.

To address both concerns, California passed a law – the "downed animal" law – prohibiting the slaughter of non-ambulatory animals and requiring slaughterhouses holding such animals to euthanize them immediately.

The law also prescribed methods for moving non-walking live animals from one place to another that would be more humane than dragging and pushing them with equipment. This latter portion of the law may prove to be preempted by federal law (which appears to allow some of the methods prohibited by the California law), but evidence on the matter of cost (and thus of irreparable harm to "packers" and "processors") was not fully developed at the preliminary injunction phase. The Ninth Circuit therefore reversed the injunction as to that portion of the law as well (with the caveat that the "humane handling" part will likely not survive further development of the evidence relevant to it at trial).

What the California Law Does Not Do

When animal rights groups are said to applaud a law (and the judicial decision that permits its enforcement), it is useful to examine what the law does not do for the farmed animals it aims to protect. Such an examination of the California law is quite telling.

First, California's downed animal legislation does not recognize that any pig, cow, or other nonhuman animal has the right to live out her natural life. This may seem like a self-evident point, when we are talking about the meat and dairy industries, but it bears noting, nonetheless. One of the rights that a healthy sentient being would have, in a world in which animals had basic entitlements, would be the right to live out her life and not be killed. The California law does nothing to disturb the existing status quo with respect to domestic pigs and other animals who are owned by people intending to make a profit from their flesh and bodily secretions. None of them has the right just to live.

A second thing the law does not do is prohibit the infliction of suffering on sentient animals. Though it is in reality not possible to slaughter billions of living creatures a year without causing immense pain and suffering to those creatures, consumers do seem to nurture the belief that while animals must die for meat (and, as informed consumers realize, for dairy and eggs as well), they need not necessarily suffer. This is doubtless why so many people who viewed videos of the downed animals were shocked. "It does not have to be this way," they likely thought, "Animals can be turned into meat and cheese without this suffering." People who buy their flesh and animal secretions from local or organic farms seem particularly wedded to this illusion.

There is nothing in the California law, however, (or any other law, for that matter), that prohibits or prevents the infliction of terrible suffering on animals who will be slaughtered for food, whether they come from factory farms or from the falsely labeled "humane" and "free range"/"cage free" farms. Instead, the law prohibits the particular cruelty that is depicted in the Humane Society video, and it prohibits even that kind of cruelty only when directed at animals who must not be consumed. (And, as noted above, the "humane handling" component of the law may itself turn out to be preempted by federal legislation.)

Readers may ask, Why is this second point important? What difference does it make whether the law addresses cruelty toward animals who will be slaughtered, or toward animals who will not be slaughtered?

The difference is that what distinguishes the former from the latter is simply their classification as "food" or "not food." That is, there is no inherent moral difference between the non-ambulatory cow or pig or lamb, and her ambulatory neighbor. The truth is that the entire group of animals would benefit from immediate euthanasia, if the alternative is the terror and pain of the slaughter process.

Once the non-ambulatory living being has been removed from the category of "food animal," however, it may become easier for many of us to take account of that animal's interests without necessarily weighing them against those of her owner, the pig farmer, and those who consume and utilize her flesh. The difference, as described by Melanie Joy in her book, Why We Love Dogs, Eat Pigs, and Wear Cows: An Introduction to Carnism, is one of perception.

What the California Law Does

Before saying what the law does actually accomplish, I must provide a significant caveat: As with many laws pertaining to the treatment of animals "raised" for food, there is a good chance that the law will not be consistently enforced. At the moment, for example, federal law prohibits the slaughter of a large mammal (such as a cow, a pig, or a goat) who is conscious (though the law contains broad religious exceptions to the prohibition). Yet virtually every time anyone enters a kill floor to inspect what goes on, he or she sees live animals hanging upside down, drowning on the blood leaking into their respiratory tracts from their slit throats, and thrashing around.

Why? Because we are slaughtering too many animals, one after another, for real compliance to possible. In the U.S. alone, over 300,000 pigs are slaughtered every day. Official inspections are typically scheduled (and thus anticipated) and even so, inspectors see ghastly and nightmare-inducing cruelty and suffering.

It is, in fact, interesting to note how worried California pig "processors" and "packers" seem to be about a law that deprives them of the ability to slaughter animals whose flesh is – at least in theory – likely to be condemned after federal inspection. It appears to follow that they have come to expect their non-ambulatory pigs to make it to slaughter, notwithstanding later inspections intended to weed them out. To state the point differently, pig farmers have come to expect – and to rely on – the non-enforcement of federal law.

For purposes of examining the California statute, however, let us assume that it will be enforced, perhaps because whoever is in charge of enforcement does not (yet) have a developed "one hand washes the other" relationship with animal farmers. What will the law, if enforced, actually do?

Within its relatively narrow domain, the law will do something positive and important. It will require that an animal who cannot be placed into the food supply be treated – if only for a tiny fraction of her life – as if her own experience matters. When she proves unable to walk to slaughter, the slaughterhouse that is holding her becomes obligated to provide her with an actual humane death. Though federal law purportedly requires "humane methods of slaughter," the California law implicitly recognizes that all slaughter is inhumane, and that at least some pigs and cows who are being raised for their flesh have a right, an entitlement, to be euthanized, rather than slaughtered.

Seeing What Is In Front of Our Faces: How We React to the Suffering of "Food Animals"

When an animal leaves the category of "food animal," we may feel freer to experience compassion for her, without worrying that such compassion will lead us to feel guilty about consuming her flesh and secretions or "worse," to feel inspired to stop doing so. Because we know that a non-ambulatory animal is more likely than others to carry disease, too, we may also lose our appetite for flesh and bovine breast milk in looking at such an animal – again, opening the door to compassion.

When we are able to see the sentient being who is suffering when someone kicks her or drags her or drowns her with a hose, we want that cruelty to stop. If we have no desire to eat her and her bodily fluids, we no longer have a vested interest in the cruelty continuing so we may eat our cheese, butter, flesh, and eggs, and thus we may let down our usual defenses (in which we "weigh" our enjoyment of flesh and animal product consumption against the harm of being tortured and slaughtered for each individual animal). Indeed, we have no "use" for the downed animal, so we see her more clearly for the innocent, suffering individual she is.

The "meat packer" and "meat processor," of course, may continue to see the downed pig as a potential source of income. Debate over the euthanasia requirement thus captures the essential conflict between the pig-as-a-commodity (the farmer's perspective) and the pig-as-an-individual (the shocked viewer's perspective).

The public accordingly sees the non-ambulatory pig in the way that ethical vegans see all of the sentient beings who are hurt and killed in order to delight people's palates. Unlike the more common regulations (saying "Kill the pig this way" or "Cage the pig in a cage this size"), the requirement that the suffering pig be euthanized is not a regulation on how that pig is to be used, but a prohibition against her use coupled with an entitlement on her part to a humane death.

As I have argued elsewhere, regulations governing cage size and slaughter on farms implicitly condone the caging, mutilation, and slaughter of these sentient beings. In contrast, a prohibition against slaughtering non-ambulatory animals at all need not be understood as condoning anything. Indeed, this is why Chief Judge Kozinski contends for the Ninth Circuit panel that a state law excluding downed animals from the category of those who may be slaughtered does not regulate slaughter – and thus does not conflict or impermissibly overlap with federal law governing the process of inspection and treatment of those animals who will be slaughtered. For the same reason, we might add, it might be viewed as not condoning or participating in the slaughter regulated by that law either.

A Skeptical Alternative View

One could, however, describe regulations of animal treatment in "rights" terms, just as one could describe prohibitions short of the complete abolition of the use of animals in terms that appear to condone animal exploitation.

A paradigmatic example of an "animal treatment" or welfarist measure is the cage-size restrictions that some animal advocacy organizations have promoted and supported. Proposition 2 in California, for example, requires that beginning in 2015, a chicken or a pregnant sow or a calf must (for most of the day, and with a variety of exceptions) have enough space to turn around in her cage. We could characterize such a regulation as "abolishing" cages that do not allow room for the animal to turn around, as counterintuitive as such a characterization would be.

Conversely, we could characterize a prohibition against the slaughter of baby animals as condoning violence toward adult animals. Such a prohibition, however, would effectively end the current farming of chickens, who are typically killed at the age of 6 or 7 weeks; and of turkeys, who are typically killed at about 20 weeks. It would end the practice of killing each male dairy calf – whose gestation is necessary to induce lactation in his mother – as a baby of a few months old, for veal. And it would end the killing of each newly-hatched male chick within a day of his hatching, through grinding alive or suffocating in a garbage bag filled with his fellow male chicks, a practice that occurs across the hatcheries that supply not only "factory" farms but "cage free" and "free range" farms and even the back yard hen coops that have lately become so popular, and which people like to pretend exist in some separate, "sustainable" universe.

Given that one might describe most legal measures restricting our use and abuse of animals as falling within either a "rights" or "welfarist/condoning" category, how should we think about a prohibition on the slaughter of non-ambulatory animals?

In terms of intent, we would have to tell a mixed story. One of the reasons for prohibiting the slaughter of non-ambulatory animals is the (well-grounded) fear that they are more likely to carry illnesses, such as mad cow disease, than their ambulatory siblings. The fear of disease has nothing, of course, to do with concern for the animals' wellbeing and everything to do with concern for human health. (Yet those who focus on human health should know, too, what has become increasingly clear about a plant-based, vegan diet: it is more conducive to health than an omnivorous or lacto-ovo-vegetarian one).

Nonetheless, the law could conceivably prohibit animals' slaughter, but permit scalding the animals to death or leaving them in a pile to die slowly (both of which happen routinely to slaughtered animals, in part because of the speed with which relatively untrained, underpaid workers conduct slaughter, de-feathering, and skinning operations).

Thus, the purpose of demanding euthanasia seems – at least with respect to the animals who will be euthanized – to reject the status of a non-ambulatory animal as a resource or as garbage to be dispatched cheaply and efficiently. Euthanasia, in this context, is not a compromise, though the scope of category of beings who are deemed by the law to be entitled to it surely is.

The Costs and Benefits of Supporting the Law Mandating Euthanasia for Non-Ambulatory Animals

In agitating for a particular law, it is – of course – important to consider opportunity costs. It is time-consuming and expensive to change the law, and our legal system is unlikely to prove a useful vehicle for addressing animal exploitation directly, as long as consumers demand more and more animal products. One could arguably accomplish more by becoming vegan and informing people about veganism, and by ensuring that schools, prisons, hospitals, and other institutional settings have delicious and healthful vegan options on the menu.

Nonetheless, once a law has passed, we ought to judge that law on its own merits (rather than focusing exclusively on what could have been accomplished instead). On the merits, I consider the euthanize-don't-slaughter law governing non-ambulatory animals in California to be a tiny step in the right direction.

That California law – in the unlikely event that it survives preemption scrutiny at trial and on appeal and is subsequently actually enforced – completely rejects the status of non-ambulatory animals in instrumental terms. Though a non-ambulatory animal is no more "useful" than a male baby chick hatched from an egg-layer, her death – by contrast to the baby chick's – must, under the law, be achieved with an eye to painlessness, not profit or efficiency. Perhaps ironically, the pig who is so injured that she cannot walk to slaughter might now, finally, die with dignity.

Perhaps we can imagine a future in which such animals and the other tens of millions who perish daily are not only permitted to die but to live as well, not as "food on the hoof," but as the inherently valuable sentient beings that they are.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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