The writer Upton Sinclair was a household name in the early 1900s. His exposé The Jungle revealed unsanitary conditions in meat processing plants and the unwholesomeness of the U.S. meat supply. The public became fixated on food safety. The Jungle influenced Congress to enact the following responses: the Federal Meat Inspection Act,1 which sought to ensure that meat and meat food products distributed to the public are wholesome, not adulterated, and properly marked, labeled, and packaged, ands the Pure Food and Drug Act, which was the nation’s first federal food labeling law and precursor to the modern Federal Food, Drug, and Cosmetic Act.2 These two laws opened the channels of communication between food producers and the public, and provided the public with some of the information necessary to formulate implicit consent to consume meat and meat products.

More than 100 years have passed since The Jungle was published. Nevertheless, the modern FMIA and FFDCA remain inadequate tools for dispensing critical information about meat and meat production. The labels that they require do not speak to how the animals were raised, whether they were administered antibiotics or other pharmaceuticals, whether they were confined, or what impact the facilities have on public health or the environment. The disclosures mandated by statute simply fail to provide the public with a complete and accurate picture. The public is surprisingly unaware of — and often unable to find — critical information about meat.

Yet, the public has a fundamental right to certain information about food. This right is manifest in the public’s constitutionally protected listener’s rights to receive truthful and non-misleading information. As the U.S. Supreme Court explained in 1976, commercial information is crucial to public choice: “[P]eople will perceive their own best interests if only they are well enough informed, and . . .
the best means to that end is to open the channels of communication rather than to close them.”3 Later that year, the U.S. Court of Appeals for the Sixth Circuit recognized that Ohio students’ First Amendment rights to receive information were violated when the school board removed books from the school library that it found distasteful.4 Citing the Supreme Court, the Sixth Circuit held: “We believe that the language just quoted, plus [ ] recent cases . . . serve to establish firmly . . . the First Amendment right to know.”5

The First Amendment right to know is now firmly established in environmental law. California’s Safe Drinking Water and Toxic Enforcement Act6 (commonly known and referred to here as Proposition 65) and the Emergency Planning and Community Right-To-Know Act7 are two examples of environmental disclosure laws that provide the public with notification of potential exposure to chemicals that could cause cancer, reproductive ailments, or other health problems. While successful on many fronts, both Proposition 65 and EPCRA fail to satisfy the public’s First Amendment right to know important information about meat and meat products.

One significant hurdle is the express preemption provision in the FMIA and Poultry Products Inspection Act.8 The FMIA and PPIA delegate the responsibility for the regulation of food labeling for meat and meat products to the Department of Agriculture’s Food Safety and Inspection Service. Another hurdle is the U.S. Environmental Protection Agency’s rules exempting most food animal facilities from air emissions reporting requirements under EPCRA. These failings illustrate that while environmental disclosure law is making progress, disclosures about meat and meat production still lag behind.

This article analyzes animal agriculture’s exemption from Proposition 65 and EPCRA, two of the most successful environmental disclosure laws in the United States. It considers whether Congress intended that an industry that impacts the lives of nearly every American should escape the watchful eye that disclosure statutes provide. It concludes that while environmental disclosure laws are far from perfect, they can act as models for the meat industry and for meat labeling.

This article considers why the public seeks truthful and non-misleading information about food animal production. It examines two successful environmental disclosure laws: Proposition 65 and EPCRA. The article then focuses on the FMIA, PPIA, and the preemption hurdles these statutes present. Finally, it analyzes some of the lessons learned from environmental disclosure laws and possible paths forward for meat disclosures.

The Public Right to Know and Animal Factories: An Overview

The animal agriculture industry has changed significantly in the past several decades. The once extensive system of small- and medium-size farms owned by single families across the country has given way to a system of large, intensive operations.9 Most animals raised for food in the United States today are raised in facilities more akin to factories than farms. These “animal factories” cram tens of thousands and sometimes millions of animals into confined spaces, forcing the animals to compete for space, food, and water; breathe contaminated air; and live in their own waste. Hidden from the public view by both visible and invisible structures,10 these animals live out their lives without so much as the possibility of federal welfare protections; the factories often escape environmental regulation; and the products of these factories — the meat, eggs, and dairy consumed by most Americans — lack labeling informative enough for the public to connect the food to the facility, or understand the conditions in which the animals were raised, slaughtered, or processed.

The public seeks truthful and non-misleading information about how food animals were raised for several reasons. The most obvious is the public’s concern about the welfare of the animals themselves. Between 1980 and 1995, Congress received more letters, faxes, and telephone calls dealing with animal welfare than any other issue.11 In a 2008 Humane Research Council survey, a large majority of participants supported a law that would require food animal producers to provide animals enough space to behave naturally.12 An American Humane Association survey revealed that nearly 90% of the 2,600 participants were concerned about farm animal welfare and 74% of participants were willing to spend more for meat, dairy, and eggs that were labeled humanely raised.13

Despite this overwhelming concern about animal welfare, there are no federal welfare standards. The Animal Welfare Act14 — the broadest federal statute geared toward animal welfare in the United States — exempts farm animals.15 Most states also turn a blind eye to animal cruelty in animal agriculture, exempting inhumane and unnatural “common farming practices”16 from state anti-cruelty statutes. Federal or state labeling systems that could at a minimum inform consumers of the conditions that food animals are raised in are similarly non-existent. Instead, the public’s desire for increased welfare spurred the creation of a new business: third-party certifiers.17 While some certifiers are undoubtedly credible, without a significant amount of research into which certifiers have defensible standards, the public is vulnerable to deceptive or empty labeling schemes.

The public also has a right to know about the environmental impacts of animal factories. By one estimate, animal agriculture in the United States creates 500 million tons of manure each year.18 The vast majority of this waste eventually reaches the nation’s waterways. “Generally accepted livestock waste management practices” are not adequate to protect water resources from contamination with excessive nutrients [fertilizer chemicals], microbial pathogens, and pharmaceuticals present in the waste.19 Manure lagoons — intended to reduce the number of pathogens and pharmaceuticals escaping into the environment — are often ineffective.20 Moreover, as animal factory waste decomposes, it releases toxic chemicals, such as ammonia,21 nitrous oxide,22 and hydrogen sulfide.23 Exposure to these chemicals can cause death, seizures, comas, respiratory problems, skin irritation, headaches, and nausea.24 Evidence suggests that the release of hazardous chemicals from animal factories presents a public health risk, and that low-income communities suffer the most. Yet, animal factories are exempt from many environmental compliance and disclosure laws, and those that do apply are hardly enforced by the appropriate agencies.25 For some, this information is critical in purchasing decisions.26

Third, the public may seek information about the conditions to which animal factory workers are exposed. Animal factory workers are consistently exposed to the same noxious chemicals and toxic waste as the communities that house these factories, and they suffer a host of other job-related injuries. For example, a health hazard evaluation at broiler processing plants in South Carolina conducted by the National Institute for Occupational Safety and Health reported that 42% had carpal tunnel syndrome and 39% had hand or wrist symptoms.27 Another study found that 34.4% of poultry processing workers had moderate to severe upper-extremity musculoskeletal symptoms, over three times more than a matched community-based sample of workers in other low-wage industries in the same area of North Carolina.28

Finally, of the numerous health and environmental impacts from animal factories, the one garnering the most attention and concern from the American public is the correlation between antibiotic-resistant infections and animal factories.29 It is no secret that a major contributing factor to this emerging public health crisis is the animal factory industry’s overuse of antibiotics in food-producing animals.30 Antibiotics are administered to animals raised for food, but not for medical treatment alone. Antibiotics are routinely administered at low levels to healthy animals to accelerate growth and serve as a prophylactic measure to compensate for unsanitary confined conditions.31 This low-level dosing causes bacteria to become resistant to antibiotics.32 The resistant bacteria are passed to humans through water, food, or through direct contact with food animals or food animal waste.33

While Congress and the courts continue to recognize and create assurances about the right to know as it relates to food, as evidenced by mandating the nutritional information and labeling on food packaging,34 the right has thus far not extended to disclosures about the conditions at animal factories. The tides may, however, be turning. Recently, the U.S. Court of Appeals for the District of Columbia Circuit addressed the right to know as it relates to meat. In a decision upholding as constitutional regulations that require producers to disclose the country-of-origin of meat, the court in American Meat Institute v. U.S. Department of Agriculture indicated that there is a substantial interest in “enabling customers to make informed choices based on characteristics of the products they wished to purchase, including United States supervision of the entire production process for health and hygiene.”35 The court concluded:

Several aspects of the government’s interest in country-of-origin labeling for food combine to make the interest substantial: The context and long history of country-of-origin disclosures to enable consumers to choose American-made products; the demonstrated consumer interest in extending country-of-origin labeling to food products; and the individual health concerns and market impacts that can arise in the event of a food-borne illness outbreak.

The American Meat Institute decision opens the door to expand the contents of meat labeling. Environmental disclosure laws can act as a model for this expansion.

Two Successful Environmental Disclosure Laws

Legislators enacted Proposition 65 and EPCRA in response to two devastating incidents at Union Carbide chemical plants in Bhopal, India, and West Virginia. Those incidents were not unlike devastating manure spills from animal factories. The disasters outraged the public and forced legislative action. Legislators passed Proposition 65 and EPCRA to protect the public’s right to know about hazardous substances in commercial products, food, and the environment. The laws facilitate informed public decisions and the right to choose (or to avoid) certain products. This section discusses how they work and why they are currently not adequate to require meat labeling or disclosures.

Proposition 65

California’s Proposition 6536 may be the most successful environmental disclosure law to date.37 The statute has “quietly driven cancer- and birth defect-causing chemicals out of thousands of everyday consumer products.”38 Proposition 65 enforcement litigation has reduced a number of well-known toxins, such as lead, ethylene oxide, perchloroethylene, tobacco smoke, engine exhaust, and mercury.39 Companies have reformulated products in response to enforcement actions or the threat of enforcement actions, providing the public with less toxic alternatives.40 Action is not limited to the state of California. Proposition 65 has significantly influenced the manufacture of consumer products nationally. While it would be legally safe to sell a reformulated product in California and the original product in other states, many companies have chosen not to sell a harmful product in some states and a less harmful product in another state.41

The statute has two mandates. First, businesses must provide clear and reasonable warnings prior to exposing individuals to chemicals that cause cancer or reproductive harm.42 Second, it bans the discharge of those chemicals into drinking water.43 The “clear and reasonable” warning message must include the following language:

WARNING: This product contains a chemical known to the State of California to cause [cancer/reproductive toxicity/birth defects or other reproductive harm].

Companies are not required to warn each exposed individual separately.44 Companies can provide warning by placing labels on consumer products, including notices in mailings to water customers, issuing point-of-sale notices, and distributing notices in public news media, provided that the warning message is clear and reasonable.45 A company must communicate the warning in such a way as to “render it likely to be read and understood by an ordinary individual under customary conditions of purchase and use.”46 There are two exceptions to the requirement to warn: businesses with fewer than 10 people and when the exposure to the listed chemical is below the safe harbor or de minimis level. The regulations provide that an exposure to a known carcinogen needs a warning if the calculated cancer risk is more than 1 in 100,000.47 The federal level is 1 in a million. For reproductive toxins, the standard is set by statute as .001 of the “no observable effect level.”48 Notably, the de minimis exemption is an affirmative defense, placing the burden on the companies to prove that their products are not harmful and not on the public to prove that they are.49

Proposition 65 is enforceable by both the attorney general and citizens of California. The citizen suit provision is broader than similar federal provisions — it creates universal standing. Under Proposition 65’s citizen suit provision, “[a]ctions . . . may be brought by any person in the public interest.”50 Plaintiffs “need not allege that Defendants violated the statute[ ]
as to every member of the public.”51 The statute simply provides that “[n]o
person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”52

Some could argue that Proposition 65 blinds consumers to the risk of carcinogens and reproductive toxins because the point-of-sale warnings have become ubiquitous. Nevertheless, Proposition 65 has done more than any other statute to inform the public of the dangers of environmental toxins. For example, California has mandated point-of-sale labeling for mercury. The public is primarily exposed to mercury through fish consumption. The U.S. Food and Drug Administration — the agency responsible for regulating commercial seafood — does not require mandatory labeling of mercury or any heavy metals in food, despite clear evidence of the dangers to consumers. FDA’s action level is 1 part per million, and the agency recently declined a citizen petition requesting the agency lower the action level to .5 ppm.53 The California attorney general, in consultation with the state’s health experts, has taken the position that “warnings are required for methylmercury exposures exceeding 0.0046 [micrograms] a day — a level that translates into concentration levels in fish far lower (more protective) than the FDA’s action level of 1 ppm.”54 In 2003, the California AG initiated several lawsuits to force direct consumer labeling about mercury in fish.55 The AG sued seven major grocery store chains and 15 restaurant chains operating 400 restaurants in the state.56 The result: both grocery stores and restaurants are posting point-of-sale warnings about mercury.

Another example of a Proposition 65 success involves arsenic in playground equipment. Historically, arsenic compounds were used in many industries, including: as a preservative in pressure-treated lumber — wood treated with a mixture of pesticides known as chromated copper arsenate; as a preservative in animal hides; as an additive to lead and copper for hardening; in glass manufacturing; in pesticides; in animal agriculture; and as arsine gas to enhance junctions in semiconductors. In 2000, the Center for Environmental Health and the California attorney general sued 34 manufacturers of pressure-treated lumber products.57 Three years later, all the defendants agreed to stop selling pressure-treated playground structures, picnic tables, and park benches in California, and nationally.58 In 2003, manufacturers of arsenic-based wood preservatives voluntarily withdrew their products due to safety concerns and EPA signed the cancellation order. In the Notice of Cancellation Order, EPA stated that it considered the voluntary move a positive step, especially for the nation’s children.59

It is difficult to quantify Proposition 65’s impact on chemicals that were not the subject of enforcement litigation. David Roe, former staff attorney at the Environmental Defense Fund and Proposition 65 author, suggests comparing statistics from California to other states. For example, EPA started collecting information on releases of toxic chemicals into the air, established pursuant to EPCRA, about the same time Proposition 65 went into effect. The database—the Toxics Release Inventory — measures air emissions of some Proposition 65-listed chemicals. In the first decade of both programs, air emissions of Proposition 65-listed chemicals dropped twice as fast in California as they did nationally.60 This dramatic difference did not apply to non-listed chemicals; they were consistent with the national average.61

Despite these successes, Proposition 65 remains controversial. Media focuses on some of the enforcement actions that incite reaction from a food-loving community — acrylimide in bread products and French fries, lead in chocolate — and on the statute’s “perceived excesses” — suits by profiteering attorneys.62 Nevertheless, the statute has managed to do what several federal agencies have been struggling with for the past 40 years: reduce California’s toxic emissions. Proposition 65 is picking up the federal government’s slack.

Yet, Proposition 65 is not the silver bullet for meat disclosures; current case law indicates that the FMIA may preempt Proposition 65. The American Meat Institute v. Leeman court addressed this issue.63 The court determined that “point of sale warning[s] with respect to meat or meat products constitute ‘labeling’ within the meaning of the FMIA’s preemption clause,” and that there is “no dispute that Proposition 65’s point of sale warning requirements with respect to meat are preempted by the FMIA.”64

Emergency Planning and Community Right-To-Know Act

The purpose of EPCRA is similar to Proposition 65, but the kind of information disclosed and the method of disclosure are different. EPCRA’s objectives are to “provide the public with important information on the hazardous chemicals in their communities, and to establish emergency planning and notification requirements to protect the public in the event of a release of hazardous chemicals.”65 These “dual goals” — providing information to the public and creating emergency response plans — do not impose any substantive requirements on industry beyond disclosure.66

Section 304 of EPCRA requires companies to report hazardous emissions to state and local authorities.67 This mandate not only facilitates a coordinated effort among response officials and a timely response in the event of an emergency, it also increases transparency and provides an incentive for companies to improve their environmental performance. In addition, it empowers citizens to hold companies and government officials accountable for how they manage hazardous substances.

Sections 311 and 312 of EPCRA require facilities that manufacture, process, or store designated hazardous chemicals to make Material Safety Data Sheets available to state and local officials and local fire departments.68 MSDS describe the properties and health effects of these chemicals. Facilities must also report, to state and local officials and local fire departments, inventories of all on-site chemicals for which MSDS exist.69 Companies must make information about chemical inventories at facilities and MSDS available to the public.

The most meaningful and significant part of EPCRA is Section 313: the TRI. This section requires facilities to provide EPA and the public with any monitoring data on toxic releases. If these data are not available, the company must estimate the amount of chemicals being released. “The release forms required under this section are intended to provide information to the federal, state, and local governments and the public, including citizens of communities surrounding covered facilities” and “to inform persons about releases of toxic chemicals to the environment; to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appropriate regulations, guidelines, and standards; and for other similar purposes.”70

The current TRI contains 689 chemicals.71 Facilities must report the total annual releases of listed chemicals into the air, surface water, and soil; any transfer of chemicals to waste disposal facilities; toxic chemicals that are treated, recycled, and combusted; location of facility; amount of each toxic chemical used and disposed of; and other relevant information.72 This information is then disclosed to the public in the TRI database.

Like Proposition 65, EPCRA has been criticized for falling short. Some argue that EPCRA has facilitated environmental racism and allowed more affluent communities to take advantage of the data at the expense of less privileged communities.73 Nevertheless, EPCRA has been successful in reducing releases of toxic chemicals. The Government Accountability Office captured some of the statute’s earlier successes. For example, “one large chemical corporation listed in the 1987 inventory as a top air polluter pledged to cut its release of inventory chemicals to 90 percent of their 1987 levels by 1992.”74 In addition, “a representative of another large chemical corporation said that, using 1987 as a benchmark year, the company had established a corporate goal of reducing its toxic air releases by 70 percent by 1993.”75 In 1991, the GAO estimated that half of all reporting facilities had already made one or more operational changes as a result of the TRI program.76 These reductions in toxic releases continued for the next 20 years. EPA’s 2011 Toxics Release Inventory National Analysis Overview confirms that the data demonstrate a general decrease in toxic release and disposal.77

Animal factories are exempt from EPCRA’s reporting requirements. On December 18, 2008, EPA published a final rule exempting most hazardous releases from Section 304, but decided that releases from farms that meet the definition of a “large CAFO [concentrated animal feeding operation]” in 40 C.F.R. Section 355.31(g) must continue to provide emergency notifications under that provision. Large CAFOs — the largest of the animal confinement facilities — are defined as those with more than 700 dairy cows, 2,500 mature pigs, 35,000 laying hens, or 125,000 chickens. Therefore, the rule exempts all animal factories that do not reach this behemoth size.

This EPCRA “CAFO Rule” was made effective on January 20, 2009.78 Several environmental, animal welfare, and public health organizations dedicated to the protection of the public from air and water pollution associated with industrial farm operations intervened in litigation surrounding the rule to oppose the exemption. In June 2010, EPA filed a motion to voluntarily remand the proposed rule so it could reissue another rule that would then be subject to notice and comment. Plaintiff environmental groups opposed the remand, but the court allowed it in late 2010. Nearly a decade later after lengthy litigation, the Trump administration codified this unlawful exemption.79

The Federal Meat Inspection Act, the Poultry Products Inspection Act, and Preemption

This section discusses one of the most significant hurdles that state meat labeling laws face: federal preemption. The Supremacy Clause80 invalidates state laws that interfere with or are contrary to federal law.81 Under the Supremacy Clause, federal law may supersede state law in three ways.82 First, Congress may preempt state law by so stating in express terms.83 Second, in the absence of express preemptive language, Congress’s intent to preempt all state law in a particular field may be inferred where the scheme of federal regulation is sufficiently comprehensive that Congress left no room for supplementary state regulation.84 Finally, even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law. Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” or when the state law poses an obstacle to the federal objective.85

The states are independent sovereigns in our federal system. Courts have long presumed that “Congress does not cavalierly preempt state law causes of action.”86 Instead — particularly in those areas in which Congress has legislated, in a field that the states have traditionally occupied — a court must start with the assumption that the historic police powers of the states were not to be superseded by the federal statute unless that was the clear and manifest purpose of Congress.87 The proper marketing of food, including the prevention of deceptive sales practices, is traditionally a field that states occupy.88 Nevertheless, the FMIA, the PPIA, and Egg Products Inspection Act89 have nearly identical express preemption provisions that stop states from issuing “[m]arking, labeling, packaging, or ingredient requirements” that are “in addition to, or different than, those made under” the statutes themselves.

This federal preemption mandate in these three statutes has an expansive reach.90 Courts have repeatedly upheld federal preemption of FMIA labeling requirements in the face of state regulations that are “in addition to, or different than” the labeling requirements in the FMIA. For example, in Jones v. Rath Packing Co., a meat processor brought suit to enjoin the enforcement of a California statute and regulation pertaining to meat weight labeling requirements.91 Unlike the FMIA, the California law made no allowance for the loss of weight resulting from moisture loss during the course of distribution.92 The Supreme Court held that the California law was “different than” the federal requirement and thus the California law was preempted by federal law.93

In Armour & Co. v. Ball, meat packers sued the Michigan Department of Agriculture seeking relief against enforcement of a Michigan statute on the marking, labeling, packing, and ingredient standards for processed meat.94 The Michigan law contained specific provisions governing the marking or labeling of sausage.95 Applying the preemption test, the court determined that

[i]n 21 U.S.C. §678 “Congress has unmistakably so ordained” federal regulation of [the marking, labeling, packaging of meat and meat products] . . . . This language does not designate that the federal standards prescribed by the Secretary in marking or labeling meat or meat products are only minimum standards that can be added to by states. Under the clear wording of §678, marking, labeling . . . ingredient requirements imposed by a state would be “in addition to, or different than” [those requirements in the FMIA].96

By prohibiting a state’s imposition of “marking, labeling, packing” requirements that are “in addition to, or different than” those requirements in the FMIA, Congress has “unmistakably ordained” that the FMIA fixes the sole standards.97

Finally, in Animal Legal Defense Fund Boston, Inc. (ALDF) v. Provimi Veal Corp., ALDF brought action against Provimi, a veal producer, under the Massachusetts consumer protection statute, seeking an order obligating Provimi to tell retail consumers how Provimi’s veal calves were raised.98 In finding that the FMIA and FFDCA preempted such an action, the court stated:

ALDF wants Provimi to display on its “label or packaging” a warning concerning the potential harmful effects of the genetically-altered salmonellae, or information that concerns the manner in which the veal calves were raised or procured . . . [this] is plainly preempted . . . by the federal regulatory scheme . . . .

[M]eat ingredient standards, labeling and packaging have been preempted . . . by the FMIA, and states cannot impose different or additional affirmative requirements on meat and meat food products.99

These cases seem to announce the death knell for state meat labeling legislation. When one, however, applies the presumption against preemption of state laws in areas of traditional state concern, and evaluates the purpose behind the FMIA and the PPIA, these statutes may not preempt some meat labels.100 The FMIA and the PPIA do not regulate the conditions on factory farms or humane conditions pre-slaughter. The substance and scope of these statutes include humane slaughter, yet neither the substance nor the scope of the statutes actually reaches the treatment of animals before they arrive at the slaughterhouse.101 The express preemption provision specifically refers to “articles prepared at any establishment under inspection in accordance with the requirements under subchapter I of this chapter. . . .”102 Moreover, the statutes may not even preempt treatment at the time of slaughter. Congress did not intend the labeling preemption clause to reach humane slaughter. Instead, it focuses primarily on weights and measures.

On the other hand, these statutes could preempt label claims that implicate the safety of meat—“animals raised with antibiotics”; “animals raised with steroids”; “may contain arsenic”—because the FMIA and the PPIA are primarily food safety statutes. Congress intended FSIS to prevent adulterated meat from entering the market, and to protect public health and welfare via these statutes. In sum, it remains an open question whether the FMIA and the PPIA will preempt meat labels that can provide the public enough information to make an educated choice about which meat, if any, to purchase.

What Meat Disclosure Laws Can Glean From Environmental Disclosure Laws

This article has examined why the public has a right to know about meat and meat products, how two critical environmental disclosure laws work, and the most significant hurdle to meat labeling. This final section will discuss some of the lessons learned from environmental disclosure laws and possible paths forward for meat disclosures.

Environmental disclosure laws are a mixed bag — there are aspects that work effectively, and other aspects that have caused more harm than good. EPCRA, for instance, has facilitated the public’s right to know about potential chemical exposure through the TRI. In the first 10 years of reporting, facilities purportedly reduced their releases by 46%.103 Access to information, however, does not necessarily translate into the means to move or otherwise protect oneself from harm. Nor would the information be useful to the individual consumer trying to decipher truthful and non-misleading information about the meat on supermarket shelves. In order for the information to be truly useful, it must be presented in a way that is universally accessible, with data about possible risks and the true environmental performance of the companies.104

Nevertheless, access to information is a critical first step in securing protection. It can delay projects, reveal bad actors, and possibly prevent future contamination. If EPA required all animal factories to report under EPCRA, scientists, activists, attorneys, and organizers would have access to critical information about these facilities and could make this information available — physically and practically—to everyone who would benefit from access.

Proposition 65 also has hurdles, not the least of which is the pervasive nature of the labeling scheme. California residents are inundated with warnings at grocery stores, restaurants, and gas stations. When a sign indicates that something on the premises could cause cancer or reproductive harm, it does not necessarily stop people from entering, and may not stop people from purchasing the product with the listed chemical. If Proposition 65 labels were required for toxins in meat, the label would not have the same impact as a label stating: “this product was raised with antibiotics” or “this product was raised at a factory farm.”

Yet, Proposition 65 is working. One reason is that the law places the burden on the company, not the public, to prove the product is safe. The statute does not apply only when listed chemicals reach a certain level. It requires all listed chemicals to be below a certain level. In other words, the de minimis exemption is an affirmative defense—it is the defendant’s burden to show in an enforcement action.105 This “modest shift in the burden of proof” has made Proposition 65 incredibly effective.106 Once the law was enacted, the industry was literally “begging [state regulators] to set clear standards for chemicals” so that they could adhere to the standards.107 Within two years of Proposition 65’s enactment, California had managed to set standards for 282 chemicals.

Proposition 65’s broad citizen suit provision—allowing any member of the public to bring an enforcement action if a company has failed to comply, regardless of injury — is another positive aspect of the statute. Proposition 65 cases cannot be brought in federal court or removed there108; thus, Proposition 65 plaintiffs escape the stricter standing requirements of federal court. Federal court jurisdiction requires that plaintiffs meet the standing requirements of Article III of the Constitution, specifically the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical.109 Proposition 65 does not require injury. Animal activists have faced challenges with respect to standing in the past,110 specifically with respect to showing an injury in fact.111 A state statute that allows any member of the public to file an action regardless of injury circumnavigates one of the greatest standing hurdles environmental and animal activist plaintiffs face.

These insights from environmental disclosure laws provide promising components for future meat disclosure statutes. Until the preemption question is answered, however, a state meat labeling law may be out of the question. Courts are addressing similar preemption questions in other arenas. For example, some courts have found that the AWA does not preempt local animal cruelty ordinances.112 While the AWA does not contain an express preemption clause similar to the clauses found in the FMIA and the PPIA, plaintiffs defending a meat disclosure law could successfully argue that meat disclosure laws of the kind contemplated above are outside the scope of the FMIA and the PPIA and the express preemption clause does not apply.

Considering how far-reaching some industry preemption challenges go, a new federal statute or amendments to existing statutes are the options with the least risk. For example, the Grocery Manufacturers Association and others challenged a Vermont state law mandating the labeling of genetically engineered crops on preemption grounds. This challenge and various other state efforts inevitably prompted federal labeling legislation for genetically engineered foods,113 and any state meat disclosure law would face a similar industry challenge on preemption grounds. The proper marketing of food—including the prevention of deceptive sales practices, which is traditionally a field that states occupy—provides meat disclosure laws with a head start in any preemption challenge.

Conclusion

Consumers have a right to know about the meat they purchase and the animal factories where food animals are raised. This information is critical for the public to form the implicit consent that is necessary to partake in the intimate act of eating. The current meat and meat facility disclosures do not provide the public with adequate information.

EPCRA-style disclosures by animal factories are likely not enough to satisfy the public’s right to know. While useful and necessary, more is needed to create industry-wide impacts. If animal factories were required to provide clear and reasonable warning to consumers if antibiotic-resistant pathogens or arsenic residues were present on meat, and citizens could enforce any failure to warn, these facilities may institute improvements much like the companies did in response to Proposition 65. While state meat disclosure laws face the risk of a preemption challenge, advocates may be able to overcome the reach of the FMIA and PPIA express preemption provisions by convincing the courts that these types of disclosures are outside the scope of the statutes. ELI PRESS

Paige Tomaselli is an experienced public interest practitioner who since 2018 has focused on tribal law issues at LevitanLaw and building her own law practice representing non-profits fighting industrial animal agriculture.