McGeorge School of Law

Proposition 6

Proposition 6:
Prohibition on Slaughter of Horses and
Sale of Horsemeat for Human Consumption

By Greg Fayard

Copyright © 2000 by University of the McGeorge School of Law

JD and Governmental Affairs Certificate
McGeorge School of Law, University of the Pacific
to be conferred 2000
M.A., University of Utah, 1996
B.S., Pacific Union College, 1991

 

Table of Contents

Executive Summary

General Description

Ballot Pamphlet Text

Text of Proposition 6

 

The Initiative Review is produced by the Governmental Affairs Student Association of the McGeorge School of Law


Chapter 1

Executive Summary

 

Current law permits meat shops, butchers, grocery stores, and eating establishments to sell and serve inspected horsemeat for human consumption in California as long as the availability of the horsemeat is conspicuously displayed to customers. (Cal. Food & Agric. Code §§' 19360, 19362.) California also requires a license for slaughtering horses for animal or human consumption. The slaughtering of horses for human consumption must be done in state or federally inspected facilities, and must be done separately from other livestock. (Cal. Food & Agric. Code §§ 18733.) Additionally, it is unlawful to sell or transport any part of an equine carcass, or meat or food byproduct of an equine, if it is not conspicuously labeled or marked as coming from an equine (i.e., horse, pony, burro, mule, donkey). (Cal. Food & Agric. Code §§ 18849.) Anyone sending a horse out of state for slaughter is required to document that the horse is being sent for that purpose.

In sum, in California it is currently legal to eat, sell, and serve horsemeat, as well as to kill a California horse for its meat. It is also legal to sell and transport horses to slaughterhouses in different states.

Proposition 6 proposes to add two new sections to the California Penal Code. The first section would make it a felony, punishable by up to three years in state prison, a $1,000 fine, or both, for any person to possess, transfer, receive or hold any equine with the intent to kill it or have it killed, where the person knows or should know that any part of the equine will be used for human consumption. The second new section would make it a misdemeanor, with subsequent violations punished as felonies, to sell horsemeat in California for human consumption.

California would be the first state to impose criminal penalties for sending a horse to slaughter for human consumption. No other state or federal legislation has attempted to ban the slaughtering of horses for horsemeat. If passed, Proposition 6 would ban the sale of horsemeat for human consumption in California, but would not affect a person's right to eat horsemeat from a non-Californian horse. For example, it would still be legal for a person to import horsemeat taken from non-Californian horses and consume it (but not sell it) in the state; however, persons could not kill and eat their own horses.

Proposition 6 may present some legal problems due to its ambiguous wording and its affect on interstate and foreign commerce. Specifically, Proposition 6 may be interpreted to penalize otherwise lawful conduct and may conflict with the United States Constitution's Commerce Clause.

 

Chapter 2

General Description

 

A. FACTUAL BACKGROUND ON HORSE SLAUGHTER AND HORSEMEAT

According to the California Department of Food and Agriculture, approximately 2,700 horses were exported from California to equine slaughterhouses inspected by the United States Department of Agriculture (hereinafter, USDA) in 1997. This figure was down considerably from 1992, when nearly 14,000 horses were exported from the state. Moreover, the state's equine export industry experienced a steady decline during the intervening years. (Telephone Interview with Morris Weisbart, Regional Brand Supervisor, Cal. Dep't of Food and Agric., Bureau of Livestock Identification (July 23, 1998) (manuscript on file with the California Initiative Review).)

Contrary to these findings, a survey of eight of the nine horse slaughter plants in the United States, Canada, and Mexico, indicated that an estimated 5,600 to 7,000 horses were exported in 1997 from California to these plants. (Telephone Interviews with Jack Bond, general manager, Central Nebraska Packing Co. (July, 1998); Claude Bouvry, president, Bouvry Exports (July 24, 1998); Pascal Derde, Cavel International Inc. (July 24, 1998); Brent Heberlein, general manager, Beltex Corp. (July 22, 1998); Oliver Kimsky, general manager, Dallas Crown Packing (July 23, 1998) (manuscripts on file with the California Initiative Review).) These conflicting data suggest that the number of horses actually exported from California to slaughterhouses in 1997 was likely between 2,700 and 7,000.

Nationally, more than 113,000 horses were slaughtered in 1996, the last year for which complete figures are available. (Memorandum from Jan Hershenhouse, Veterinary Medical Officer, Cal. Dep't of Food and Agric., Meat and Poultry Inspection Branch, to Greg Fayard (July 7, 1998) (manuscript on file with the California Initiative Review).) Thus, California horses accounted for well less than 10% of those slaughtered in recent years.

Horses sent to slaughter are typically older (average age 11.4 years), neglected, displaced, or retired animals that are no longer useful for saddle, ranch, recreation, breeding, or racing endeavors. (Telephone Interviews with Carolyn L. Stull, Ph.D., Animal Welfare Program, University of California, Davis (July 9, 22, 23, 1998) (manuscript on file with the California Initiative Review); Carolyn L. Stull, Stress and Injuries in Horses Commercially Transported to Slaughter in the U.S. (July 1998) (unpublished manuscript on file with the California Initiative Review) (hereinafter Stress and Injuries).) Many wild horses are also exported to slaughterhouses, as are some young and healthy horses. (Telephone Interview with Heberlein, supra; Jim Motavilli, The Last Roundup: Wild Horses--and Yesterday's Prized Pets--Get Sent for Slaughter, E/The Environmental Magazine, Jan-Feb. 1998 (June 21, 1998) (hereinafter The Last Roundup).)

Most of the California horses destined for USDA-licensed horse slaughterhouses are purchased at horse auctions, which are regulated by the California Department of Food and Agriculture. These auctions are held regularly throughout the state. Several kinds of horses are sold or bartered at these auctions, including race, breeding, show, ranch, saddle, and wild horses. Ranchers, equestrians, racehorse owners, as well as those who own horses for personal and recreational use, sell their horses to the highest bidder. Buyers at the auctions include the aforementioned, as well as horse rights advocates, children's camps, research universities, horse traders, and those seeking personal companionship. Horse slaughter buyers usually pay between $400 and $800 a head for a horse that is no longer useful in most other capacities, and will take old, injured, and blind--but not sick--equines. Such horses not bought by horse slaughter buyers would have to be "put down" by lethal injection, purchased by a horse sanctuary, or will die of natural causes or possibly neglect. (Telephone Interview with Stull, supra.)

Horse slaughter buyers transport horses alive in loads of 38 to 44 to one of three USDA-inspected equine slaughterhouses- Beltex in Fort Worth, Texas, Dallas Crown Packing in Kaufman, Texas, and Central Nebraska Packing Company in North Platte, Nebraska C where they are sold for profit. (Stress and Injuries, supra) Until recently, there were 14 slaughterhouses in the United States. (the largest number in Texas), including five in California. A wave of closings, however, has consolidated the industry, leaving nine known plants throughout Canada, Mexico, and the United States. (The Last Roundup, supra, at 2.) Of the three plants that operate in Canada, one is owned by Central Nebraska Packing, which imports some California horses. Bouvry Exports owns the other two, in Alberta and Quebec; the Alberta facility receives California horses, although the Quebec plant does not. Beltex, meanwhile, owns one of the two slaughter plants in Mexico. A majority of the California horses that are exported for slaughter go to Canada. Few if any are slaughtered in Mexico. (Telephone Interviews with Bond, supra; Bouvry, supra; Heberlein, supra; Kimsky, supra.) Corona Cattle is the only plant licensed in California to slaughter horses. The meat, however, is shipped to pet food companies and zoos. (Telephone Interview with Tony Ormonde, owner and general manager, Corona Cattle, (Aug. 6, 1998) (manuscript on file with the California Initiative Review).) In 1997, Corona Cattle killed 55 horses using humane slaughter methods. (Memorandum from Hershenhouse, supra, at 1.)

Like cattle, the horses are killed using humane slaughter methods. The process is regulated by the Humane Methods of Slaughter Act, and USDA inspectors are on site during all operating hours. (7 U.S.C.A. §§1901 (West 1998); 21 U.S.C.A. §§603 (West 1998).) Specifically, a metal bolt is used to penetrate the horse's skull. The bolt renders the horse unconscious, whereupon the horse is hoisted by the back legs, the major blood vessels in the throat are severed to remove blood, and the carcass is dismembered. (Telephone Interview with Stull, supra.) Horses cannot be killed via lethal injection because the administered drug, barbiturate, enters the blood stream, which taints a horse's meat for human and animal consumption and would also prohibit other pharmaceutical uses of the horse's carcass. (Telephone Interviews with Stull, supra; Heberlein, supra.)

The horsemeat is exported primarily to Europe, Mexico, and Japan; Belgium and France account for a vast majority of the imports. (U.S. Agricultural Exports of Horsemeat, USDA, Foreign Agricultural Service, Jan. 1991-Dec. 1997.) The low fat, high-protein meat, which many say tastes like the less expensive beef, is then sold for up to $15 a kilogram ($6.80 a pound), where it is served in restaurants or meat shops. (Voters to Decide if Horses Can Be Eaten, S.F. Chron., July 8, 1998 at A18.) While there is no data on horsemeat consumption, it is widely believed that virtually no one eats horsemeat in the United States. Even though it is legal to serve and sell horsemeat in California, which has 20% of the nation's horses, market forces prevent stores or restaurants from selling or serving it. (Pamela Warrick, When a Horse Isn't a Horse but a Meal, LA Times, Aug. 8, 1997 at D1; Telephone Interview with John Lovell, legal representative for Proposition 6 (June 11, 1998) (manuscript on file with the California Initiative Review).) Moreover, the amount of horsemeat exported from the United States has plummeted by more than 70% over the last seven years, from 48,000 metric tons in 1991 to 13,000 metric tons in 1997. (U.S. Agricultural Exports of Horsemeat, supra.)

In addition to the meat, virtually every part of a horse's carcass has other uses and is sold to various industries. For example, the hide is sold and made into leather which, until recently, was used to make baseballs. Some shoes, purses, and other leather products are still made out of horsehide. The horse's spleen, heart, pericardium (heart sack), and blood are sold to pharmaceutical companies. Iron is extracted from the spleen to create ferritin, which is sold to iron deficient countries like Italy. The pericardium is used for the production of artificial heart valves; and the blood and heart are used to create certain enzymes and serums. Additionally, horsehair is used to make belts, hatbands, and (ironically) reins, while the tail is used to produce violin bows. The horse's bones, teeth, and hooves are sold to rendering companies that convert it into protein meal for livestock and poultry. The manure is converted into compost and fertilizer. Occasionally body parts are donated to veterinary schools, and the hooves are sold to horseshoe trade schools. In the past, the horse's animal fat was used to make cosmetics, such as soap and lipstick. Glue products, however, are no longer derived from horses. (Telephone Interview with Heberlein, supra.)

Alternatives to selling unwanted horses would be to "put down" the horse via lethal injection or by gunshot. In California, the costs of killing a horse by lethal injection varies and would include the cost of a veterinary ranch call (minimum $45), plus the cost of the euthanasia service ($35), totaling $80. The disposal fee also varies depending on the distance the carcass-hauler must travel to pick up the dead horse. The carcass-haulers, whose fees start at $60, pick up and transport the dead animal to a rendering plant where it is used to produce animal protein feed. Approximately 5% of the dead horses removed by carcass-haulers in California have been killed by lethal injection and about 5% have been euthanized by gunshot. (Memorandum from Hershenshouse, supra, at 2.) It is illegal to dispose of a horse carcass in any California landfill; it may only be buried on the hauler's property, or taken to a licensed collection center, rendering plant, animal disease diagnostic laboratory, or crematory. (Cal. Food & Agric. Code §§ 19348 (West 1998).) Due to the equine's size, it can cost up to $1,100 to cremate a horse. (Telephone Interview with Stull, supra.)


B. CURRENT CRIMINAL STATUTES PERTAINING TO ANIMAL SLAUGHTER

California law currently prohibits the killing of domestic animals such as dogs and cats either for food or for the use of the animal's pelt. (Cal. Pen. Code §§' 598a, 598b.) These laws permit the slaughter of livestock as well as game-hunting. (Cal. Pen. Code §§ 598b.) Proposition 6 would amend this section of the Penal Code.

 

C. SUMMARY OF PROPOSITION 6

Proposition 6 will add two new sections to the Penal Code: sections 598c and 598d. Section 598c will make the slaughter of California horses for human consumption a felony, punishable by imprisonment in state prison for 16 months, 2 years or 3 years. It will also punish horse sellers who knew or should have known that their horses were purchased for horsemeat. Section 598c does not disturb commercial activities involving horses beyond human consumption purposes.

Section 598d will make the sale of horsemeat in California a misdemeanor for first time offenders. Repeat offenses will be felonies, punishable by imprisonment in state prison for two to five years. Thus, eating establishments may no longer import out-of-state horsemeat for human consumption purposes.

 

D. POTENTIAL LEGAL PROBLEMS III. Potential Legal Problems

1. Drafting Issues

If Proposition 6 becomes part of the California Penal Code, courts will be required to interpret the meaning of these two new criminal statutes. It is common for courts to apply traditional rules of statutory interpretation to initiative measures proposed by the voters. (Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188, 1202.) That is, where a court can derive meaning from the express language of a statute, it need not look further. (Lungren v. Deukmejian (1988) 45 Cal. 3d 727, 735.) Only in the face of statutory ambiguity must a court look to the intent of the legislature, or in the case of an initiative measure, the intent of the electorate in passing the law. (Id.) Some of the language of Proposition 6 seems ambiguous and could pose problems in how the proposed statutes are interpreted.

 

a. Who is "that person"?

Section 598c, subdivision (a) reads:

"Notwithstanding any provision of law, it shall be unlawful for any person to possess, import into, or export from, the state, or to sell, buy, give away, hold, or accept any horse with the intent of killing, or killing or having another person kill that horse, where that person knows or should have known that any part of that horse will be used for human consumption."(Prop. 6, §§ 4 (a); emphasis added.)

Based on the wording above, it is unclear who "that person" refers to. It may refer to either "any person" or "another person." This ambiguity is important because it dictates against whom and under what circumstances charges can be brought. If "that person" refers to "another person" then the law would have a limited impact because it would only apply when the accused has an active accomplice who does the actual killing of the horse, and the accomplice knows that part of the horse will eventually be eaten. Under this narrow interpretation, the one who seeks out the accomplice would be liable, but the person who did the killing and who knew the horse would be eaten, would not be liable. This interpretation is unlikely.

The more probable interpretation of this language is that the aforementioned "that person" refers to "any person" because the application of the law would be much broader. The law would only require that the accused knew or should have known the horse would eventually be used for human consumption. Under this interpretation, any rancher who sells one of her horses at an auction could be prosecuted if she "should have known" that the horse would be killed and eaten.

Requiring such a low level of culpability could be problematic, however. A horse seller, who at the time of sale did not actually know that the horse would be slaughtered and eaten, could be prosecuted if, for instance, the buyer was a known slaughterhouse representative and other factors were present giving rise to a reasonable inference that the horse would be used for human consumption. Given the nature of auctions, a seller may have no idea to whom her horses will sell. In certain situations persons lacking the requisite intent could be charged with and potentially convicted of a felony offense.

b. "Human Consumption"

Section 598c, subdivision (a) seeks to ban the killing of horses where "any part" of the horse will be used for "human consumption":

A[I]t shall be unlawful for any person to possess, import into, or export from, the state any horse where that person [kills or intends to kill the horse and] knows or should have known that any part of that horse will be used for human consumption." Prop. 6, §§ 4(a); emphasis added.)

The key question here is: does "Human consumption" refer only to "eating," or could "Human consumption" refer to the various ways humans "consume" or "use" a horse? The definition of consume includes A[t]o expend; use up," and the definition of consumption includes A[t]he using up of goods and services by consumer purchasing or in the production of other goods." (American Heritage Dictionary of the English Language 405 (3d ed. 1992); emphasis added.) Since subdivision (a) does not mention "horsemeat," the phrase "Human consumption" could be narrowly or broadly interpreted. There are at least three different interpretations of the phrase:

1. "Human consumption" refers to eating "any part" of a horse and to other numerous ways of consuming or using a horse that do not include ingestion.

2. "Human consumption" refers to the eating or ingestion of "Any part" of a horse.

3. "Human consumption" refers only to the eating or ingestion of horsemeat.

The first interpretation is broad and may exceed the scope and intent of the initiative. As noted, many products originate from the body of a horse (e.g., heart valves, violin bows, leather products, shoes, pharmaceutical drugs, veterinary research, pet food, etc.). If this interpretation applies, then California horses could not be slaughtered if any part of the horse would be used by humans. Under this interpretation, Corona Cattle, a California company that slaughters horses for pet and zoo animal food, may have to halt its slaughtering operations because, arguably, pet food is a type of human "consumption" of horsemeat (i.e., used in the production of other goods). As a result, a "commonly accepted horse commercial" activity (pet and zoo food) would be impacted. However, this interpretation directly conflicts with Section 598c, subdivision (d) of the initiative, which says in part that it is not the intent of the initiative to impact "Any commonly accepted commercial . . . activity that relates to horses." (Prop. 6, §§ 4.)

Furthermore, if "Human consumption" refers to "Human use," then veterinarians who possess horses with the intent to kill or who actually kill the horses by lethal injection, could be prosecuted under the new law if they knew or should have known that any part of the horse's carcass would later be "used" by humans. A veterinarian could hypothetically violate the proposed law because the language of the proposition does not distinguish slaughter methods from other ways to kill a horse. Even though it is extremely unlikely that a horse "put down" by a vet would be used for its byproducts (e.g., violin bows, or leather products), under the broad interpretation of "Consumption," the law could still apply to veterinarians. Given its overbroad nature, this interpretation is unlikely.

The second interpretation is narrower, in that a person would commit a felony by killing or intending to kill a horse if that person knew that any part would be eaten by humans. However, no known body parts, other than the meat, are eaten by humans. Therefore, because the initiative seeks to "prohibit the slaughter of California horses to be used for food for human consumption" (see Prop. 6, §§ section 3 (b)), this interpretation anticipates circumstances where a horse might be killed in order for humans to eat a part of the horse that is not horsemeat and thus is unlikely.

The third interpretation is the most likely of the three, making it a felony to kill or to intend to kill a horse if it is known that the horse's meat would be eaten by humans. This interpretation is most consistent with the dual purpose of the initiative A[t]o prohibit the sale of horsemeat" (Prop. 6, §§ 3 (a)) and A[t]o prohibit the slaughter of California horses for human consumption" (Prop. 6, §§ 3 (b).) Under this interpretation, California horses could continue to be slaughtered for their many other uses, as long as the horsemeat is not consumed. However, it is not economically practical for horse slaughter companies to buy horses, slaughter them, discard their meat, and use the carcasses for other purposes. (Telephone Interview with Heberlein, supra.) Therefore, market forces could essentially stop the selling of California horses for slaughter for any purpose.

 

2. Constitutional Problems: The Commerce Clause

Proposition 6 may significantly impact the flow of commerce to other states as well as to foreign countries. It may therefore violate the United States Constitution's Commerce Clause which grants Congress the authority "to regulate commerce with foreign nations, and among the several States." (U.S. Const., art. I, §§ 8.) This broad power has been interpreted by the Supreme Court as a restriction on the ability of individual states to adopt laws that burden the forms of commerce which fall under the control of the federal government, such as interstate and foreign commerce. (Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine (1997) 520 U.S. 564, __, 117 S.Ct. 1590, 1595-96.) Therefore, Congress may regulate any activity that has a close and substantial relationship to, or effect, on commerce. In other words, Congress may set the terms for the interstate transportation of persons, products, or services. (Id.)

When Congress has not spoken on a commerce matter, the Commerce Clause is said to be dormant. If Congress is silent on a commerce matter, the Supreme Court must attempt to interpret the meaning of congressional silence in an area where the primary power, such as foreign and interstate commerce, belongs to Congress. The Supreme Court can decide if the area is appropriately regulated by the states, or given Congressional silence, if the area may not be regulated by the states at all. The rationale behind the Commerce Clause is to create and foster the development of a common market among the states, and to eradicate internal trade barriers. When state legislation thwarts the operation of the common market of the United States, the state laws have exceeded the permissible limits of the dormant commerce clause. (United States v. Lopez (1995) 514 U.S. 549, 579-80.)

a. Interstate Commerce

Congress has not addressed whether states may ban the export of horses to slaughterhouses in other states, or the importation of horses for slaughter.1 Therefore, the Commerce Clause, as it relates to Proposition 6, is dormant. If Proposition 6 passes, it would become a state law that impacts interstate and foreign commerce. Specifically, the exportation of horses to both foreign and domestic slaughterhouses would likely be curtailed, and the exportation of California horsemeat to foreign countries would likely cease. If challenged, a court would have to determine if the new California laws violate the United States Constitution.

The United States Supreme Court has set forth the general rule for determining the validity of state laws that incidentally affect interstate commerce:

"Where the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." (Pike v. Bruce Church, Inc. (1970) 397 U.S. 137, 142.)

State regulations may not survive this dormant commerce clause analysis if they discriminate against interstate or foreign commerce or if they incidentally affect such commerce in an unconstitutional manner. (Pacific Northwest Venison Producers v. Smitch (9th Cir. 1994) 20 F.3d 1008, 1012.) Thus, section 598c, subdivision (a) of Proposition 6 would violate the Commerce Clause only if it is found to discriminate against interstate or foreign commerce or to incidentally affect interstate or foreign commerce in an unconstitutional way. (See Letter from Jana T. Harrington, Deputy Legislative Counsel, Legislative Counsel of California, to Ken Maddy, California State Senator (July 10, 1998) at 2 [Proposition 6 is unconstitutional because it violates the Commerce Clause of the United States Constitution].)

Section 598c, subdivision (a) of Proposition 6 would ban the importation and exportation of horses intended to be killed for human consumption, which would equally impact the sellers of horses destined for slaughter (exporters), as well as the horse slaughterers in Texas, Nebraska, and Canada (importers). As a result, it appears that subdivision (a) would apply "evenhandedly" to both in-state and out-of-state interests. (Letter from Harrington, supra, at 2.) However, since the slaughtering of horses for human food currently does not occur in California, the sole effect of Proposition 6 is to ban exports. Since Proposition 6 would not directly impact intrastate--or domestic--commerce stemming from horse slaughter, yet would ban the exportation of an article of commerce (horses), it appears to discriminate against those states that import such horses, namely Texas and Nebraska. Likewise, even though it does not occur today, Proposition 6 would stop the importation of horses into California, where such horses would be slaughtered for human food. The Supreme Court held that a law that overtly blocks the flow of interstate commerce at a State's borders" is an example of a law that is invalid per se because it violates the principle of nondiscrimination inherent in the Commerce Clause. (City of Philadelphia v. New Jersey (1978) 437 U.S. 617, 624.) Moreover, the Supreme Court struck down on Commerce Clause grounds a state law where the "practical effect of such regulation is to control [conduct] beyond the boundaries of the state" (Id. at 643; Southern Pacific Co. v. Arizona (1945) 325 U.S. 761, 775; see (Hughes v. Oklahoma (1979) 441 U.S. 322 [Court invalidated an Oklahoma law that banned the exportation of natural minnows procured in the state, holding that the law discriminated against interstate commerce by overtly blocking such transportation]; Baldwin v. Montana Fish and Game Comm'n (1978) 436 U.S. 371, 385-86 [A[s]tates may not compel the confinement of the benefits of their resources, even their wildlife, to their own people whenever such hoarding and confinement impedes interstate commerce"].) A court may rule, therefore, that Proposition 6 is invalid on its face because it is intended to control conduct in other states, where California horses are slaughtered; it impedes interstate commerce by overtly blocking the transportation of horses; and it results in the hoarding of resources.

Even if Proposition 6 is not invalid on its face, a court could still find that it violates the Commerce Clause. The Supreme Court has stated that the transportation of livestock (e.g. horses) from state to state falls under interstate commerce, and all objects of interstate trade merit Commerce Clause protection. (City of Philadelphia v. New Jersey, supra, 437 U.S. at 622; Reid v. Colorado (1902) 187 U.S. 137, 146.) Assuming that Proposition 6 applies "evenhandedly" to both in-state (horse sellers) and out-of-state (horse slaughterers) interests pursuant to Pike, subdivision (a) could violate the Commerce Clause if it "incidentally affects" interstate or foreign commerce in an unconstitutional manner. (Pacific Northwest Venison Producers v. Smitch, supra, 20 F.3d at 1012.) Under this prong of the test, a court may be asked to determine whether subdivision (a) would "Incidentally" affect interstate commerce, or whether it would "directly" regulate interstate commerce, which is prohibited. (Waste Management of Alameda County, Inc. v. Biagini Waste Reductions Systems, Inc. (1998) 63 Cal. App. 4th 1488, 1498.) The term "direct" refers to regulations whose central purpose is to regulate commerce, usually in order to benefit local interests. (Kleenwell Biohazard Waste v. Nelson (9th Cir 1995) 48 F.3d 391, 396 citing Exxon Corp. v. Governor of Maryland (1978) 437 U.S. 117.) Therefore, a court must examine the central purpose of a state law to determine whether the regulation "Directly" regulates interstate commerce. If the central purpose of the state law is to address a "legitimate local concern" rather than to regulate commerce, the effect on interstate commerce is not "direct." (Letter from Harrington, supra, at 4.)

According to Section 3, the "Purpose and Intent" of Proposition 6 is:

"(b) To prohibit the slaughter of California horses to be used for food for human consumption. [and] (c) To recognize the horse as an important part of California's heritage that deserves protection from those who would slaughter them for food for human consumption." (Prop. 6, §§ 3.)

While subdivision (a) would affect interstate commerce by prohibiting the flow of horses destined for slaughter to and from California, the central purpose of the initiative is the protection of horses, and not the regulation of commerce. Hence, it would seem that the effect of subdivision (a) on interstate commerce would be incidental to its primary purpose, and would not directly regulate commerce. (Letter from Harrington, supra, at 4-5.)

In Pike, the Supreme Court set forth the balancing test applicable to indirect regulation of interstate commerce. That balancing test has two inquiries. The first is directed at the legitimacy of the state's interest. The second inquiry weighs the burden on interstate commerce in light of the local benefit derived from the regulation. (American Libraries Ass'n v. Pataki (S.D.N.Y. 1997) 969 F. Supp 160, 177 citing Pike v. Bruce Church, Inc., supra, 397 U.S. at 142.)

As to the legitimacy of the public interest, regulations designed to promote health and safety, prevent fraud or deception, or ensure the purity of the article of commerce, are valid public interests, according to the Supreme Court. (Pike v. Bruce Church, Inc., supra, 397 U.S. at 143; Letter from Harrington, supra, at 5.) Protecting horses from slaughter for human consumption, however, is not based on any of these traditional justifications because transporting horses and slaughtering them at distant locations has relatively no impact on the health and safety of Californians. Moreover, Proposition 6 does not claim the horse slaughter trade is deceptive or fraudulent, and it is not concerned with the purity of horsemeat in California. Therefore, the next question is whether a court would consider banning the slaughter of horses for human consumption to be a legitimate state interest. (Pike v. Bruce Church, Inc., supra, 397 U.S. at 143; Letter from Harrington, supra, at 5.)

At least one court has diverged from these traditional areas of public interest in finding the humane treatment of dogs to be a legitimate local public interest. (Kerr v. Kimmel (D. Kan. 1990) 740 F. Supp. 1525.) But even if the protection of horses from slaughter for human consumption is a legitimate state interest, the burden that subdivision (a) would impose on interstate commerce must be weighed in light of that local interest. (American Libraries Ass'n v. Pataki, supra, 969 F. Supp at 177.) The test is whether the burden on interstate commerce is excessive in relation to that local public interest and whether that interest could be advanced with a lesser impact on interstate commerce. (Pike v. Bruce Church, Inc., supra, 397 U.S. at 142; Letter from Harrington, supra, at 6.)

Subdivision (a) would prohibit the trading of any horse for the purpose of killing it for human consumption. Since, horses are items of commerce, this would be an absolute ban on the importation and exportation of an article of commerce. It is unlikely that this purpose--banning the trade of horses destined for slaughter--could be achieved in a way that would have a "lesser impact on interstate activities." (Letter from Harrington, supra, at 6.) While subdivision (a) would protect horses from slaughter for human consumption, it would not protect horses from slaughter for pet or zoo animal food, which are "commonly accepted horse commercial activit[ies]." (Prop. 6, §§ 4 (d).) That is, subdivision (a) would not impact Corona Cattle's activities as a horse slaughterer that supplies horsemeat for pets and zoo animals. Thus, horses would be protected from slaughter only for the purpose of prohibiting their use as food for humans, and not any other purpose. An implied purpose of subdivision (a) may be to protect the public from the possible offensiveness arising from foreigners eating the meat of California horses. However, at least one court has stated that justifying the impact of a law on interstate commerce "requires more than mere offensiveness to taste." (See People on Complaint of Freshel v. Teter (1962) 231 N.Y.S.2d 651, 655 [New York City Magistrates' court invalidated a statute that was predicated on the possible offensiveness arising from viewing horses whose tails have been cut or altered, because it violated the commerce clause of the United States Constitution]; Letter from Harrington, supra, at 6-7.)

The United States Supreme Court recently invalidated a Florida city ordinance that banned ritualistic animal sacrifice, but allowed almost all other types of animal killings. (Church of the Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520.) The Court voided the regulation because its purposes — to prevent the cruelty of animals and promote public health — were not consistently achieved. By targeting ritualistic animal sacrifices, the ordinance, as governed by Florida law, exempted the killing of animals for food, pest control, hunting, fishing, medical research, etc. (Id. at 543-44.) By trying to curtail animal sacrifices, which offended public morals, the ordinance favored certain types of animal killing over others. Likewise, a court could rule that a state law that exempts the killing of horses for animal food — but not human food — is invalid because it is not based on preventing animal cruelty or promoting public health, but instead is solely contingent on offensiveness to public morals or taste (i.e., humans eating horses).

The burden that subdivision (a) would impose on interstate commerce is great because it would place an absolute ban on the trade of an article of commerce for a purpose unrelated to sanitation, human health and safety, or any other areas which state regulation traditionally has been permitted. Even though protecting horses from slaughter for human consumption may be a legitimate local public purpose that may not be promoted with a lesser impact on interstate commerce, this purpose is not within the scope of those areas in which state regulation traditionally has been permitted. Since subdivision (a) would act as an absolute ban on an article of commerce (livestock horses), the burden on interstate commerce appears excessive in relation to the interest served by Proposition 6's proposed addition to the California Penal Code. For these reasons, subdivision (a) may unconstitutionally affect interstate commerce and thus violate the Commerce Clause of the United States Constitution.


b. Foreign Commerce

Similarly, by banning the exportation of horses for slaughter to other nations and limiting the amount of horsemeat exported abroad, subdivision (a) would also affect foreign commerce. It is a well-accepted rule that state restrictions burdening foreign commerce are subjected to a more rigorous and searching scrutiny." (South-Central Timber Development, Inc. v. Wunnicke (1984) 467 U.S. 82, 100.) The United States' foreign policy demands that the Federal Government speak with one voice when regulating commercial relations with foreign governments," as opposed to several, individual state voices. (Michelin Tire Corp. v. Wages (1976) 423 U.S. 276, 285.) Thus, added scrutiny is needed to determine whether regulations may implicate matters of concern to the whole nation." (Kraft Foods v. Iowa Dept. of Rev. (1992) 505 U.S. 71, 79; Letter from Harrington, supra, at 8.)

California bans the importation and exportation of animals kept as pets or companions if they will be killed for human consumption. (Cal. Penal Code §§ 598b (West 1998); Letter from Harrington, supra, at 8.) States have different laws regarding the trading of animals, however currently there appears to be no uniform national policy. Moreover, other than it being an offensive practice to some, there appears to be no convincing reason that a ban on the shipment of horses destined for slaughter for human consumption might be of concern to the nation as a whole. (Letter from Harrington, supra, at 9.)

Without any factors that would require heightened scrutiny, such as a national interest in banning the horsemeat-for-foreigners industry, which is regulated by the USDA, a court would analyze the burden on foreign commerce in the same way that it would analyze the burden on interstate commerce. (Letter from Harrington, supra, at 9.) The balancing test set forth in Pike would apply: if the state law regulates evenhandedly to effectuate a legitimate local public interest, and its effect on foreign commerce are only incidental, it will be upheld unless the burden on commerce is clearly excessive in relation to the putative local benefits. For the reasons set forth in the analysis concerning the impact of subdivision (a) on interstate commerce, it appears that the burden on foreign commerce that could result from the ban on the trading of horses for human consumption, could be clearly excessive" in relation to the interest to be served by subdivision (a). (See section D, subdivision (2)(a), supra.) Therefore subdivision (a) may affect foreign commerce in an unconstitutional manner and thus violate the Commerce Clause of the United States Constitution.

c. Embargoes

As a general rule, state laws that burden the exportation of local products are considered to be embargoes, which conflict with the national common market philosophy of the commerce clause. (Hughes v. Oklahoma (1979) 441 U.S. 322, 329-30.) The United States Supreme Court, however, has recognized that certain forms of embargoes are legitimate when they represent the least burdensome alternative for achieving a necessitated goal. (Id. at 335.) When laws to protect local economic interests operate equally on domestic and foreign consumers, the Supreme Court does not consider these laws to be embargoes. (Id. at 336-37.)

One balancing test to determine if a state law is valid and not an embargo is whether the competing national interests outweigh the local interests served by the law. That is, if the local interests are greater than the national interests, then the state law would not violate the Constitution's dormant commerce clause and would therefore be valid. (Id.; See Parker v. Brown (1943) 317 U.S. 341 [California raisin marketing scheme that fixed prices did not violate the dormant commerce clause because of impact of raisins on interstate and foreign commerce].)

The purpose behind Proposition 6 is to prohibit the sale of horsemeat for human consumption in California [and] prohibit the slaughter of California horses to be used for human consumption." (Prop. 6, §§ 3 (a), (b).) Applying the Court's test to the horsemeat industry, it appears that the local interest to be served is a ban on the sale of horsemeat throughout California, as well as a substantial decrease in the number of horses transported to slaughterhouses. Since there is currently no known consumption of horsemeat in California, a ban on the sale of horsemeat would have little or no impact on the lives of Californians, Proposition 6 merely codifies the status quo. Since horsemeat is not eaten in California, there does not seem to be a local interest in banning the availability of horsemeat in California. The only local interest achieved by Proposition 6 through the drastic curtailment of the number of California horses slaughtered appears to be the cumulative peace of mind Californians may feel knowing that California horses are no longer slaughtered for human consumption.

Furthermore, Proposition 6 will likely result in a drastic decrease in the number of California horses exported for slaughter, thus increasing the horse population in California. With an increased population of older, injured, and lame horses with no salvage value, more horses may die of starvation or neglect at the hands of less conscientious horse owners. By taking away their salvage value, Proposition 6 could remove the incentive for some horse owners to adequately care for some of their horses. As a result, Proposition 6 may increase the number of neglected horses in California, which contradicts its implied purpose of promoting equine welfare. (Prop. 6, §§' 2, 3.) Additionally, the ban on horse slaughter would effectively end the use of California horses for horsemeat, which would likely put many horse slaughter buyers out of business. These are examples of local interests that may be harmed, not advanced, by Proposition 6.

The balancing test in Parker also weighs any competing national interests served by the state law. The $41 million horsemeat industry would probably not be noticeably affected by Proposition 6 since California horses account for less than 10% of slaughtered horses. (Memorandum from Hershenhouse, supra.) Horse slaughter plants would probably purchase more horses from states other than California. The effect on the horsemeat industry would likely be nominal. The decrease in California horses may cause some reduction in the overall horse supply, which could raise the price of horsemeat abroad, and result in a decrease in worldwide demand for horsemeat, even if only slightly.

Since horsemeat is the most valuable part of a horse, slaughterhouses would likely stop purchasing California horses for other uses. As a result, a decrease in the number of California horses slaughtered each year may either have no effect on other industries, or may cause a slight increase in costs for the other industries (e.g., pharmaceutical, leather, animal feed, etc.) that rely on horse carcasses. While it is difficult if not impossible to estimate the actual impact of a ban on the slaughter of California horses, Proposition 6 could have a cumulative, albeit indirect, effect on industries besides horsemeat.

Even though Proposition 6 may have only a slight negative impact on national interests, the local interests it would protect are virtually nonexistent (i.e., collective peace of mind). Therefore, a court may find that the local interests behind Proposition 6 do not outweigh any national interests. If so, according to the test laid out in Parker, the proposition could be an embargo and hence unconstitutional.

When it is difficult to evaluate local interests, as here, a more appropriate test may be whether the effect of a state law on interstate commerce is discriminatory and impairs national interests. If it is not, then there is no basis to strike the law. (Lone Star Gas Co. v. Texas (1938) 304 U.S. 224.) Proposition 6 would prevent horse owners from selling horses to horse slaughter buyers, and would preclude those buyers from engaging in commerce with horse slaughterers. Infringing on this trade could be characterized as discriminatory. With a decrease in the total number of horses available for slaughter, Proposition 6 could impair the foreign exportation of horsemeat, as well as other industries that rely on horse body parts. If impairing businesses that rely on horse carcasses is deemed a national interest, a court, according to Lone Star, may have cause to strike down Proposition 6.

 

E. CONCLUSION

Proposition 6 will make the slaughter of horses for human consumption a felony in California. It will also punish those who sell horsemeat for human consumption (misdemeanor for first-time offenders; felony for repeat offenders). The new laws will significantly alter the state of the current law with regard to these activities, creating potentially severe sanctions for what is now lawful conduct.

 

Some parts of Proposition 6 may seem ambiguous and thus may present interpretation problems; however, courts will probably apply the law correctly under most circumstances. Most significantly, by impacting the flow of goods beyond the borders of California, Proposition 6 may encroach upon Congress' Commerce Clause authority and violate the United States Constitution.

 

Appendix A

Ballot Pamphlet Text

 

CRIMINAL LAW. PROHIBITION ON SLAUGHTER OF HORSES AND SALE OF HORSEMEAT FOR HUMAN CONSUMPTION. INITIATIVE STATUTE. Makes possession, transfer, or receipt of horses for slaughter or human consumption a felony. Makes sale of horsemeat for human consumption a misdemeanor. Fiscal Impact: Probably minor, if any, law enforcement and incarceration costs.

 

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BALLOT TITLE AND SUMMARY

CRIMINAL LAW. PROHIBITION ON SLAUGHTER OF HORSES AND SALE OF HORSEMEAT FOR HUMAN CONSUMPTION. INITIATIVE STATUTE.

Prohibits any person from possessing, transferring, receiving or holding any horse, pony, burro or mule with intent to kill it or have it killed, where the person knows or should know that any part of the animal will be used for human consumption. Provides that a violation constitutes a felony offense.

Also adds a provision making the sale of horsemeat for human consumption a misdemeanor offense, with subsequent violations punished as felonies.

 

Summary of Legislative Analyst's Estimate of Net State and Local Government Fiscal Impact:

The measure could result in some increased law enforcement and incarceration costs at both the state and local level. These costs probably would be minor, if any.

ANALYSIS BY THE LEGISLATIVE ANALYST

Proposition 6

Prohibition on Slaughter of Horses and Prohibition on Slaughter of Horses and Sale of Horsemeat for Human Consumption. Initiative Statute.

Background

State law permits the slaughter of horses for human consumption and for use in pet food. The slaughtering of horses for human consumption must be done in state or federally inspected facilities and must be done separately from other livestock. Currently, there are no facilities in California licensed to slaughter horses for human consumption. Nationwide, there are fewer than ten facilities that slaughter horses to provide horsemeat for human consumption.

Anyone sending a horse out of state for slaughter is required to document that the horse is being sent for that purpose. According to the state Department of Food and Agriculture, last year over 3,000 horses were sent from California for slaughter in another state.

Currently, businesses are allowed to sell horsemeat for human consumption in California. Data are not available on whether or not this occurs.

 

Proposal

This measure prohibits both the slaughter of horses for human consumption and the sale of horsemeat for human consumption in California. In addition, horses could not be sent out of California for slaughter in other states or counties for human consumption. Under the measure horses include any horse, pony, burro, or mule.

The measure establishes felony and misdemeanor criminal penalties for violations of these provisions.

 

Fiscal Effect

Since this measure creates new crimes, it could result in some increased law enforcement and incarceration costs at both the state and local level. These costs probably would be minor, if any.

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Argument in Favor of Proposition 6

PROP 6: THE "SAVE THE HORSES" INITIATIVE PUTS CALIFORNIA HORSES BACK IN THE STABLE...AND OFF THE TABLE!

Horse Slaughter is virtually a secret industry to Californians. Nationally, TWO AND A HALF MILLION horses have been slaughtered for HUMAN CONSUMPTION and exported to foreign countries as a "gourmet" meat since 1986.

Horses slaughtered for human consumption are not humanely euthanized. Because they are slaughtered for human consumption, they are killed by splitting open their skulls with a four-inch spike then hung, bled and dismembered while still alive.

Slaughter is not exclusive tot he old, sick and crippled. Slaughter includes the young and healthy, our children's pets, frightened mares with helpless foals standing at their sides and our treasured wild mustangs.

Horses have evolved to be pleasure, recreational and sporting animals. Horses are not food animals. Existing laws protect our dogs and cats from slaughter and export. Our horses deserve this protection as well. When necessary, horses should be put to sleep humanely and rendered, not brutalized for export.

California was developed in partnership with the horse. They tilled our fields, pulled our wagons, delivered our mail. Horses have helped us immeasurably. Now we must help them by voting to prohibit their cruel and unnecessary slaughter.

People's horses are stolen, obtained under false pretenses and purchased for slaughter, without the owner's knowledge, to quickly be shipped out of state to a "no-questions" asked outlet.

Horse slaughter is contrary to basic American values. Californians do not support horse slaughter. Prop. 6 would make it a crime to export and kill California's pleasure horses for foreign "gourmet" markets. It would also prohibit any California restaurant or supermarket from selling horsemeat to unwary California consumers.

WHY WE NEED THIS MEASURE:
CALIFORNIANS DO NOT EAT HORSES. We shouldn't allow California's pleasure horses to be slaughtered and exported overseas for "gourmet" human consumption

- Horse slaughter is cruel and inhumane.
- Horses can be bought for slaughter without the knowledge of the owner.
- Horses slaughtered to be eaten by humans cannot be humanely euthanized and must be killed in a cruel and inhumane fashion.
- Horsemeat is sold as a "gourmet" item, not to feed starving people.
- Existing laws protect dogs and cats from slaughter, our horses also deserve protection.
- Horses are recreational animals, not bred for human food.
- Horses are part of California's heritage and culture.
- Horse slaughter contributes to theft and consumer fraud.
- Californians do not want horsemeat sold in restaurants or supermarkets.
- The horse slaughter industry is all foreign owned, serving foreign interests.
- California sales tax and equine revenues are lost from the export of horses for slaughter for human consumption.

PROP 6 IS A CITIZENS, GRASSROOTS EFFORT SPONSORED BY CATHLEEN DOYLE, SHERRY DEBOER AND SIDNEY J. LONG AND HAS OBTAINED BROAD BASED BI-PARTISAN SUPPORT SUPPORTED BY:

The California State Horsemen's Association

Members of the United States Olympic Equestrian Team

California Organization of Police Sheriffs

Thoroughbred Owners of California

Del Mar, Golden Gate Fields and Hollywood Park Race Tracks.

(This initiative is dedicated to California's horses)

Gina Richardson, Legislative Chair
CALIFORNIA STATE HORSEMEN'S ASSOCIATION

Michael D. Bradbury
VENTURA COUNTY DISTRICT ATTORNEY

William J. Hemby, Legislative Chair
CALIFORNIA ORGANIZATION OF POLICE AND SHERIFFS (COPS)

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REBUTTAL TO ARGUMENT IN FAVOR OF PROPOSITION 6

This initiative shows how the ballot process can be abused by the idle rich. A wealthy heiress wants to foist her pet project--outlawing horsemeat for human consumption-- on the rest of California.

Get a life! Hardworking Californians don't need to waste their time voting on measures that are of little concern to the average citizen. Only 10,000 California horses are slaughtered for consumption each year.

These champions of horse rights paint a picture of dangerous entities in our midst, ready to dismember Mr. Ed at a moment's notice, then gleefully eat the carcass ala Jeffrey Dahmer.

If the goal of Proposition 6 is to save horses, why would it only address killing them for human consumption? Horses are more often killed to make dog food or for industrial purposes.

If the goal is to change the method of slaughter, then the authors could propose regulations to that effect. Instead, Proposition 6 turns factory workers into felons.

Under Proposition 6, horse owners could not sell their animals as they see fit. Many horses would just be cruelly abandoned and die anyway. If horses are disposed of in landfills, will decomposing carcasses pose a risk of disease or groundwater contamination?

California's Legislative Counsel reviewed Proposition 6 and found that it violates the U.S. Constitution. Thus, if passed, it would face expensive legal challenges (to be paid by taxpayers).

Look this "gift horse" in the mouth, and see it for the lame nag it really is. Just say NEIGH to Proposition 6.

TED BROWN
Past Chair, Libertarian Party of California

THOMAS TRYON
Rancher

JEANNE BOWERS-LEPORE, DVM
Horse Doctor

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ARGUMENT AGAINST PROHIBITION ON SLAUGHTER OF HORSES INITIATIVE

IF HORSEMEAT IS OUTLAWED, ONLY OUTLAWS WILL EAT HORSEMEAT!

Proposition 6 is one of the strangest measures ever to go before California voters. The proponents must really love horses to spend over $500,000 to qualify this for the ballot. But the fact is, they have no right to use the power of government to regulate peoples' eating habits.

People make choices in life. What they eat is quite fundamental. Some people like to eat horsemeat. Because of this, a few businesses cater to the demand and sell the product. This is a private matter between a person and his local butcher--and between the butcher and his supplier. The government should not be involved.

THREE HORSEBURGERS AND YOU'RE OUT!

Proposition 6 makes killing a horse for human consumption a felony. It also makes selling horsemeat a felony on the second offense. This is an absolute misuse of the law and of our justice system.

Felonies are serious offenses, most often involving violations of peoples' rights. Good examples are murder, rape and armed robbery. Selling horsemeat is certainly not in that league.

Indeed, with the current interpretation of the "three strikes" law, a restaurant owner could sell four horse burgers; the first offense would be a misdemeanor and the other three would be felonies. Three felonies means "Three strikes and you're out," with a mandatory sentence of 25 years to life in prison! Do we really want scarce prison space to be taken up for a non-offense like this?

People have the right to eat horsemeat if they want to. Residents of other nations, like Canada, enjoy it more than Americans do, and in fact, horsemeat exports often go there. To outlaw its sale and consumption is cultural imperialism at its worst. It's also a violation of the free market; as long as there is demand, there should be a safe, legal supply available.

Proposition 6 is dangerous, unnecessary, unconstitutional and downright nutty. Keep the government out of our stables and out of our kitchens. Just say NEIGH to Proposition 6.

 

TED BROWN
Past Chair, Libertarian Party of California

THOMAS TRYON
Calaveras County Supervisor

JOSEPH FARINA
Attorney
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REBUTTAL ARGUMENT IN FAVOR OF PROPOSITION 6

THERE IS NO LEGITIMATE FORMAL OPPOSITION TO THIS MEASURE.

The oppositions argument against this initiative makes it abundantly clear that they are out of step with the principles and beliefs of the vast majority of Americans. They apparently fail to recognize that we do not want our recreational animals, be it our dogs, cats, or horses slaughtered for human consumption.

We agree people have the right to choose what they eat. Californians CHOOSE NOT to eat their horses and Californians have the right to protect their horses against the cruelty of the foreign slaughter trade.

RESPONSE TO OPPONENTS:

The secret slaughter of our recreational animals is NOT A PRIVATE MATTER BETWEEN A BUTCHER AND HIS SUPPLIER.

This felony does NOT trigger the "Three strikes" law because it is NOT A VIOLENT CRIME AGAINST PEOPLE.

World market meat demands should NOT be supplied with California's pet and recreational animals.

Proposition 6 is NOT dangerous. It protects horses. NOR is it unnecessary. 2,500,000 horses have been slaughtered since 1986.

Horses need protection because exporting them for human consumption means they have to be slaughtered cruelly instead of humanely euthanized and rendered.

Horses are an important part of California's heritage and its culture. Let's leave an honorable and compassionate legacy and protect California's horses against the cruelty of slaughter for human consumption.

BROAD-BASED, BI-PARTISAN, MAINSTREAM SUPPORT

VOTE YES ON PROPOSITION 6

Robert Redford
ACTOR, THE HORSE WHISPERER

John Van de Kamp, President
THOROUGHBRED OWNERS OF CALIFORNIA

Jill Henneberg
U.S. EQUESTRIAN OLYMPIC SILVER MEDALIST

 

Text of Proposition 6

 

PROHIBITION OF HORSE SLAUGHTER AND SALE OF HORSEMEAT FOR HUMAN CONSUMPTION ACT OF 1998

 

SECTION 1. TITLE.

This act shall be known and may be cited as the Prohibition of Horse Slaughter and Sale of Horsemeat for Human Consumption Act of 1998.

 

SECTION 2. FINDINGS AND DECLARATIONS

The people of the State of California find and declare

(a) The horse is part of California's heritage, having played a major role in California's historical growth and development. Horses contribute significantly to the enjoyment of generations of recreation enthusiasts in California.

(b) Horses are not raised for food or fiber and are taxed differently than food animals.

(c) Hundreds of thousands of California horses have been slaughtered for food for human consumption abroad. Horses are being slaughtered in order to provide a gourmet meat to foreign markets.

(d) Horses can be stolen, purchased without disclosure, or under false pretenses to be slaughtered or shipped for slaughter. That practice has contributed to crime and consumer fraud.

SECTION 3. PURPOSE AND INTENT.

The people of the State of California hereby declare their purpose and intent in enacting this act to be as follows:

(a) To prohibit the sale of horsemeat for food for human consumption in the State of California.

(b) To prohibit the slaughter of California horses to be used for food for human consumption.

 

(c) To recognize the horse as an important part of California's heritage that deserves protection from those who would slaughter them for food for human consumption.

SECTION 4. Section 598c is added to the Penal Code, to read:

Section 598c Prohibition of Horse Slaughter

(a) Notwithstanding any provision of law, it shall be unlawful for any person to possess, import into, or export from, the state, or to sell, buy, give away, hold, or accept any horse with the intent of killing, or killing or having another person kill that horse, where that person knows or should have known that any part of that horse will be used for human consumption.

(b) For purposes of this section, "horse" means any equine, including any horse, pony, burro, or mule.

(c) Violation of this section is a felony punishable by imprisonment in the state prison for 16 months, 2 years or 3 years.

(d) It is not the intent of this section to impact any commonly accepted horse commercial, non-commercial, recreational or sporting activity.

(e) It is not the intent of this section to impact any existing laws which relate to horse tax or zoning.

SECTION 5. Section 598d is added to the Penal code, to read:

Section 598d Prohibition on Sale of Horsemeat

(a) Notwithstanding any other provision of law, horsemeat shall not be offered for sale for human consumption. No restaurant, cafe, or other public eating place shall offer horsemeat for human consumption.

(b) Violation of this section is a misdemeanor punishable by a fine of not more than $1,000; confinement in jail for not less than 30 days nor more than two years; or both the fine and confinement.

(c) A second or subsequent offense under this chapter is punishable by imprisonment in the state prison for not less than two years nor more than five years.

SECTION 6. SEVERABILITY.

If any provision of this Act or the application thereof to any person or circumstances is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this initiative which can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this initiative are severable.