Federal preemption often seems like one of those topics far removed from the typical student’s life. The Court recently heard a case that ties in with a topic that has been enjoying a lot of attention lately—food safety. The case of National Meat Association v. Harris is a good example of how esoteric issues can become entangled in the everyday activities of life and in this case, how there can be a limit to the impact of politics on the law.
In 2008, the Humane Society took undercover videos showing the treatment of “nonambulatory” or “downer” cows (i.e., cows that cannot move on their own) at a slaughterhouse in California. The animals were kicked, electrocuted, and dragged with chains before being processed into meat. The videos raised concerns that the animals were diseased and those concerns in turn sparked a huge recall of meat products.
Following the recall, President Obama issued an order prohibiting the slaughter of “downer” cattle. The order was limited to cattle. California also passed legislation that made it a criminal offense to slaughter any nonambulatory livestock. Under that law, these animals are to be immediately euthanized and are not to be processed. The California law appears to conflict with the Federal Meat Inspection Act (FMIA). The FMIA requires downer animals to be held separately for federal inspection. The animal may still be slaughtered if the inspection determines that it is fit for consumption. Because downer cattle are already kept out of the food supply under the federal law, the animal most affected by the conflict between the California and federal laws is the pig.
According to a representative of the National Meat Association (NMA), the California law would exclude 200-300 pigs a day from slaughter. That would have an unacceptably large economic impact on the industry. He noted, “Sometimes the pigs are stressed or fatigued from the trip, or they’re just stubborn. Usually, they recover, and if they’re fine, they go into the food supply.” 
The NMA has challenged the California law in federal court, arguing that it is preempted by the FMIA. Although the NMA won at the district court level, the Ninth Circuit reversed. In the opinion by Chief Judge Kozinski, that court held that “the FMIA establishes inspection procedures to ensure that animals that are slaughtered are safe for human consumption, but this doesn’t preclude states from banning the slaughter of certain animals altogether….”  In other words, the Ninth Circuit found that although the federal government is regulating how meat is processed to ensure product safety, the states under their police powers can determine what kinds of animals may be processed for food.
Although the Ninth Circuit opinion seems to split hairs, the concern about how food is raised and processed has entered the mainstream social consciousness through bestsellers like Fast Food Nation and The Omnivore’s Dilemma and documentaries like Food, Inc. The conflict between the two laws is a conflict about the safety and humaneness of meat processing. It is easy to feel queasy at the realization that the bacon at breakfast tables around the country may have come from an animal that was not able to walk.
The legal issue is also interesting. The Supreme Court has enunciated a “presumption against preemption” in past cases; however, the Court indicated last year that the presumption might be weakening. The FMIA does include language that seems to clearly “occupy the field” with respect to the procedure for handling downer animals and clearly prohibits states from making regulations “in addition to or different than” federal regulations. In oral argument, members of the Court seemed to signal that they were not convinced by the Ninth Circuit’s arguments against preemption. What this suggests is that, at least in cases where the legislation includes specific provisions regarding preemption, that there may be limits to the impact of politics even in a sensitive area like this one.
 David G. Savage, “US Supreme Court Takes Up Treatment of Pigs,” Los Angeles Times, 10/29/2011; http://www.latimes.com/news/nationworld/nation/la-na-court-pigs-20111030,0,4290983.story, accessed 12/8/2011.
 Quoted by Tom Goldstein, “Argument Preview: Will presumption against preemption survive?” SCOTUSblog (Nov. 7, 2011, 6:00 PM) http://www.scotusblog.com/2011/11/argument -preview-will-%e2%80%9cpresumption-against-preemption%e2%80%9d=survive/ accessed 12/8/2011.