Every day, hundreds of pigs arriving at American slaughterhouses are, or become, unable to stand or walk before they are slaughtered. Federal law allows the entry of these “downer” pigs into the food supply after inspection (although downer cattle are banned from processing for human consumption), but California has a law banning such animals from the food supply. On Wednesday, November 9, the Supreme Court heard argument on whether this law can stand.

The question before the Court was whether California’s law, which requires that animals too sick to stand or walk before slaughter must be immediately and humanely euthanized and that such animals may not be sold for human consumption, is preempted by the Federal Meat Inspection Act. The Ninth Circuit said no, and it is this decision that will be reviewed by the Supreme Court.


The Federal Meat Inspection Act mandates that all animals, including downer animals, be inspected before slaughter. After inspection, the federal law allows such animals (except cattle) to be sold for human consumption if they do not show signs of certain diseases.  Notwithstanding the Ninth Circuit’s decision, the answer to whether the federal law preempts the state law is, unfortunately, yes.

I say unfortunately because California’s is the better rule. It is both inhumane and dangerous to allow downer animals into the food supply. It is inhumane because the nonambulatory status of the downer animals is a result of cruel pre-slaughter treatment, and it is dangerous because eating diseased meat can make people sick, as the Department of Agriculture acknowledged in the context of cattle. Although the meat industry argues that many downer pigs are victims of “Fatigued Pig Syndrome,” California state officials told the L.A. Times that the state law is concerned with pigs showing pronounced signs of illness or injury, not with animals that need a nap.


Nevertheless, the Federal Meat Inspection Act explicitly preempts state requirements “with respect to premises, facilities and operations of any [slaughterhouse] at which [federal] inspection is provided . . . which are in addition to, or different” than the federal requirements. The Ninth Circuit construed this provision narrowly to uphold California’s law, holding that California’s different inspection requirements actually only regulate the kind of animal that can be slaughtered, not the “premises, facilities and operations” of the slaughterhouse. And although the State argues that downer swine fall out of the scope of the statute, because they are not “meat,” this interpretation is a distortion of the plain language of the statute. The California law, which requires slaughterhouses to adhere to a different inspection procedure than they would under federal law, is a state requirement concerning the operations of a federally inspected slaughterhouse that is different than the federal requirement, and is thus explicitly preempted.


And even though states traditionally hold the authority to regulate health and animal welfare, the nationalization of food safety regulations makes sense. The uniformity resulting from this nationalization benefits industry, which can standardize its operations across states, as well as the public health. Federally inspected meat should comply with the same standards regardless of its state of origin.


These standards should include a prohibition against the entry of any downer animals into our food supply.  The economic consequences of such a ban – which the National Meat Association argues would be significant — would force the meat industry to alter its pre-slaughter practices, and the public would not be exposed to the pathogens more likely to be found in the meat of downer animals than in healthy animals.

If the Supreme Court reverses the Ninth Circuit, as it is likely to do, and California can no longer enforce its law, what can concerned citizens do to advocate for a change in federal law? One thing that can be done is filing suit against the Department of Agriculture alleging that the agency has acted arbitrarily and contrary to the Humane Methods of Slaughter Act, which is incorporated into the Federal Meat Inspection Act, by not banning all downer animals from the food supply. 


All meat eaters are at increased risk of harm from the government’s policy to permit downer animals into the food supply. Moreover, the government’s current policy allows the continuance of the horrific practices that result in the inability of animals to move before slaughter. This policy should change, and the change should be national.


Diana R. H. Winters is a Visiting Assistant at Boston University Law School, where she is the Health Law Scholar. Her research involves issues of food safety and the decision-making processes of federal agencies. Previously she was an Assistant Solicitor General with the New York Attorney General’s Office. She holds a J.D. from New York University and a Ph.D. in American Civilization from Harvard University.