Two of the industry’s major trade associations are cooperating in a lawsuit to prevent a California statute, which is designed to prevent the slaughter of downed livestock, from taking effect, but the purposes of each organization in the effort are not exactly alike.

The suit, filed by the National Meat Association and the American Meat Institute in the U.S. District Court for the Eastern Division of California (Fresno), seeks a Declaratory Judgment that Section 599f of Title 14 of the California Penal Code, which was scheduled to take effect Jan. 1, 2009, is preempted by the Federal Meat Inspection Act and its implementing regulations; that the state law violates the Commerce Clause of the U.S. Constitution; and is void for vagueness under the 14th Amendment to the U. S. Constitution.

The new law, Jeremy Russell, NMA’s director of communications, explained to, "takes a law that was really concerned pretty specifically to BSE in cattle and applied it across the board to all livestock." The law states, in part: "[N]o slaughterhouse… shall buy, sell, or receive a non-ambulatory animal. [N]o slaughterhouse shall process, butcher, or sell meat or products of non-ambulatory animals for human consumption" and further that "no slaughterhouse shall hold a non-ambulatory animal without taking immediate action to euthanize the animal."

After USDA’s Food Safety and Inspection Service outlawed processing non-ambulatory cattle earlier this year, acting on petitions by both AMI and NMA in the wake of the Hallmark-Westland cattle-abuse scandal, USDA veterinarians stationed at all meat packing plants were authorized to determine whether all other species of non-ambulatory livestock are fit for consumption. According to AMI, "This veterinary judgment is a critical element in ensuring that only livestock processed in an inspected establishment provides meat that is fit for human consumption." The Institute also point out that "on some occasions all species can become injured even until the last minutes before processing, but an injury like a broken ankle does not automatically make livestock unfit for consumption. Preventing veterinarians from evaluating the health of these livestock and requiring blanket condemnation of this class of animals is not only illegal… but a waste of livestock that could provide wholesome meat products."

NMA’s suit zeroes in on the question of whether state or federal law applies to the handling of hogs, specifically, that are unwilling to move independently upon arrival at a USDA-inspected meat plant and whether they are still fit for entry into the food system when they are merely tired or otherwise suffering from hog fatigue after being transported by road or rail systems. According to an NMA statement, "Hogs are likely to suffer travel/transport fatigue, and they customarily will recover mobility after they rest, feed and drink water in the holding facilities at the inspected establishment. "

AMI’s motion, filed as an intervenor to NMA’s suit, also seeks declatory and injunctive relief from the new law, but is broader than NMA’s suit, extending to any livestock processed at a federally inspected plant. "In its motion to intervene, AMI argued that the new state law imposes requirements that are different than and in addition to the FMIA requirements imposed by USDA in federally inspected establishments," AMI stated in a Dec. 24 release.

The California law was passed by the state’s legislature in July of this year. Russell said that soon after, NMA heard from members "who had concerns right away. They said, ‘This is putting our employees at risk because this is a criminal law.’" The Washington, D.C., firm of Olsson, Frank & Weeda, which has represented NMA for many years, is handling the lawsuit for NMA.

Over the years there have been a handful of suits to prevent state laws that potentially conflict with federal meat inspection laws from taking effect, with the rule of federal preemption always prevailing. Russell told that NMA expects preemption to apply in this case as well. However, with the overwhelming passage last November of Proposition 2 in California, which will, when enacted in 2015, prevent the egg industry from caging laying hens, the cause of animal welfare in the state seems on the upswing.

The Humane Society of the United States, which campaigned heavily for 2’s passage, has not stated whether it will join the state of California in the battle against NMA and AMI. HSUS did support the two organizations in their petition to prevent non-ambulatory cattle from being processed.