facts, we do not recount them here. “We review de novo an order granting a

motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure

12(b)(6).” Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th

Cir. 2021). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the

district court’s dismissal of IPPA’s complaint.1

1. We begin with IPPA’s claim that Proposition 12 unconstitutionally

discriminates against interstate commerce in violation of the dormant Commerce

Clause. “If a statute discriminates against out-of-state entities on its face, in its

purpose, or in its practical effect, it is unconstitutional unless it ‘serves a legitimate

local purpose, and this purpose could not be served as well by available

nondiscriminatory means.’” Rocky Mountain Farmers Union v. Corey, 730 F.3d

1070, 1087 (9th Cir. 2013) (quoting Maine v. Taylor, 477 U.S. 131, 138 (1986)).

On its face, Proposition 12 does not discriminate against out-of-state pork

1 “Because we affirm the district court’s Rule 12(b)(6) dismissal of the complaint, . . . we need not separately address the question whether the denial of the [plaintiff’s] motion for a preliminary injunction was proper.” See Santa Monica Nativity Scenes Comm. v. City of Santa Monica, 784 F.3d 1286, 1291 n.1 (9th Cir. 2015).

2 producers. As codified, Proposition 12 provides that any “business owner or

operator,” regardless of their location, “shall not knowingly engage in the sale

within” California of any pork meat derived from a breeding pig “confined in a

cruel manner.” Cal. Health & Safety Code § 25990(b). Where a statute—like

Proposition 12—bans the sale of a product, regardless of whether the product is

intrastate or interstate in origin, it is not discriminatory. Ass’n des Eleveurs de

Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 948 (9th Cir. 2013) (holding

that a statute banning the sale of any product resulting from force feeding a bird,

regardless of the product’s origin, was not discriminatory). Because the statute

“treats all private companies exactly the same,” it “does not discriminate against

interstate commerce.” Id. (alteration accepted) (quoting United Haulers Ass’n v.

Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 342 (2007)).

Nor has IPPA adequately alleged that Proposition 12 has a discriminatory

purpose. IPPA asserts that California enacted Proposition 12 to “avoid negative

fiscal impacts to the State of California.” But Proposition 12’s stated purpose “is

to prevent animal cruelty by phasing out extreme methods of farm animal

confinement, which also threaten the health and safety of California consumers,

and increase the risk of foodborne illness and associated negative fiscal impacts on

the State of California.” Prop. 12, § 2 (2018) (emphasis added). This statement

reflects a concern about fiscal impacts associated with foodborne illness, and

3 cannot support an inference that California sought to discriminate against out-of-

state producers by enacting Proposition 12.2

As for discriminatory effects, IPPA notes that Proposition 12 was enacted

against the backdrop of California’s Proposition 2, which prohibits in-state pork

producers from confining breeding pigs in conditions where they cannot turn

around. Prop. 2, § 3 (2008). IPPA argues California imposed similar restrictions

on out-of-state pork producers by enacting Proposition 12 and contends this had

the effect of benefiting in-state producers who had been competitively

disadvantaged by Proposition 2. IPPA also alleges that Proposition 2 gave in-state

producers six years to comply with its turnaround provisions, whereas Proposition

12 gave producers less than six weeks to comply with its turnaround provisions

and only three years to comply with its square footage requirements. See Cal.

Health & Safety Code § 25991(e).

Contrary to IPPA’s characterization, Proposition 12 did not extend the

provisions of Proposition 2 to out-of-state producers. Proposition 2 imposed

2 IPPA also alleges the California Department of Food and Agriculture (“CDFA”) “explicitly noted that, unless out-of-state farmers are required to comply with the confinement requirements as well, ‘[i]n-state farms will find it more costly to compete with farms outside of the state when selling . . . whole pork meat to an out of state buyer compared to farms located in states that do not have the same animal confinement standards as described in the Act.’” But rather than revealing protectionist intent, this statement suggests that Proposition 12 may place in-state farms at a competitive disadvantage with respect to sales to out-of-state buyers.

4 turnaround provisions on all breeding pigs located in California, regardless of

where pork derived from those pigs might ultimately be sold. Prop. 2, § 3 (2008).

Proposition 12, by contrast, requires all pork producers who sell pork meat in

California to comply with certain confinement standards, including turnaround

provisions and square footage requirements. See Cal. Health & Safety Code

§ 25991(e). Although in-state producers may have felt less impact from

Proposition 12 because they were already subject to the turnaround provisions of

Proposition 2, that does not demonstrate that Proposition 12 discriminates against

out-of-state producers. See Eleveurs, 729 F.3d at 948 (noting that a statute is not

discriminatory “even when only out-of-state businesses are burdened because there

are no comparable in-state businesses” (citing Exxon Corp. v. Governor of

Maryland, 437 U.S. 117, 119-20, 125 (1978))). The district court properly

concluded that IPPA did not adequately allege discrimination under the dormant

Commerce Clause.3

2. We next address IPPA’s claim that Proposition 12 is unconstitutional

3 To the extent IPPA relies on the CDFA’s answers to Frequently Asked Questions, those answers make no distinction between in-state and out-of-state businesses. See Animal Care Program, CDFA (Mar. 5, 2021), www.cdfa.ca.gov/AHFSS/pdfs/Prop_12_FAQ_March_2021.pdf. IPPA also contends that California’s implementing regulations, which were not presented to the district court, enhance the discriminatory effects of Proposition 12. But we may not consider matters outside the complaint when reviewing a motion to dismiss. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

5 under the dormant Commerce Clause because it imposes an excessive burden on

interstate commerce. A statute is unconstitutional under the dormant Commerce

Clause where “the burden imposed on [interstate] commerce is clearly excessive in

relation to the putative local benefits.” Rocky Mountain, 730 F.3d at 1087-88

(alteration in original) (quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142

(1970)).

We previously considered and rejected such a challenge to Proposition 12 in

National Pork Producers Council v. Ross (NPPC I), 6 F.4th 1021 (9th Cir. 2021).

The Supreme Court later affirmed in a fractured decision. See Nat’l Pork

Producers Council v. Ross (NPPC II), 598 U.S. 356 (2023). We conclude that

NPPC I remains controlling in this circuit because a majority of the Justices in

NPPC II did not agree upon a “single rationale” and there is no opinion in that case

that “can reasonably be described as a logical subset of the other.” United States v.

Davis, 825 F.3d 1014, 1021-22 (9th Cir. 2016) (en banc); see also Miller v.

Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).4

In NPPC II, a majority of the Court held that the plaintiff’s challenge to

Proposition 12 fell “well outside Pike’s heartland,” but did not agree on the

underlying reasoning. 598 U.S. at 380; id. at 377-89. A four-justice plurality

concluded that the plaintiff had not met its initial burden of showing the

4 Indeed, IPPA conceded at oral argument that our court is bound by NPPC I.

6 “challenged law imposes ‘substantial burdens’ on interstate commerce.” Id. at

383, 386-87 (plurality opinion). Three justices separately reasoned that the case

demanded a comparison of “incommensurable” goods, which is “a task no court is

equipped to undertake.” Id. at 382 (three-justice opinion).

Because the Court did not agree upon a single rationale for affirming, and

neither of the two rationales is a “logical subset” of the other, “only the specific

result [in NPPC II] is binding on lower federal courts.” Davis, 825 F.3d at 1022;

see also Ballinger v. City of Oakland, 24 F.4th 1287, 1295 (9th Cir. 2022)

(recognizing that, “when determining the holding of a fractured Supreme Court

decision[,] only the opinions of those who concurred in the judgment[] can be

considered”).5 Because only the result in NPPC II is binding, and there is no

controlling reasoning, we remain bound by our decision in NPPC I.

5 The concurrence’s analysis of NPPC II disregards the settled rule that dissents may not be considered when interpreting the holding of a splintered Supreme Court decision. See Marks v. United States, 430 U.S. 188, 193 (1977) (limiting review to opinions of “those Members [of the Court] who concurred in the judgments” (citation omitted)). In our 2016 en banc decision in Davis, we “assume[d] but [did] not decide that dissenting opinions may be considered in a Marks analysis,” and noted that doing so would not have changed our conclusion in that case. 825 F.3d at 1025; see also id. at 1025 n.12 (“We emphasize here . . . that we do not decide that issue.”). Although we left the question unresolved in Davis, we squarely decided it in Ballinger, where we rejected the argument that a controlling rationale could be derived from a concurrence and a four-justice dissent. Ballinger, 24 F.4th at 1295 (holding that “[d]issenting opinions cannot be considered when determining the holding of a fractured Supreme Court decision”); see also Miller, 335 F.3d at 900.

7 Under NPPC I, a plaintiff “must, at a minimum, plausibly allege the

ordinance places a significant burden on interstate commerce.” 6 F.4th at 1032

(citation and internal quotation marks omitted). The plaintiffs in NPPC I could not

satisfy that burden—which is met “only in rare cases”—because “laws that

increase compliance costs, without more, do not constitute a significant burden on

interstate commerce.” id.; see also id. at 1033.

Here, as in NPPC I, IPPA argues that complying with Proposition 12 will

require costly alterations to its infrastructure and substantial new training and

labor.6 See id. at 1033 (noting that the “crux” of the plaintiffs’ allegations was that

“the cost of compliance with Proposition 12 makes pork production more

expensive nationwide”). But “[t]he mere fact that a firm engaged in interstate

commerce will face increased costs as a result of complying with state regulations

does not, on its own, suffice to establish a substantial burden on interstate

commerce.” Id. at 1032 (citation omitted). Moreover, “a non-discriminatory

regulation that ‘precludes a preferred, more profitable method of operating in a

retail market’” does not “place a significant burden on interstate commerce,” even

6 To the extent IPPA argues that Proposition 12 has an “impermissible extraterritorial effect,” the NPPC I court already concluded that “state laws that regulate only conduct in the state, including the sale of products in the state, do not have impermissible extraterritorial effects.” 6 F.4th at 1029.

8 if it inflicts “heavy burdens on some out-of-state sellers.” Id. (citation omitted).

We conclude the district court properly dismissed IPPA’s Pike claim.

3. We next consider IPPA’s as-applied vagueness challenge. A

regulation “is unconstitutionally vague if it does not give ‘a person of ordinary

intelligence fair notice of what is prohibited.’” Tingley v. Ferguson, 47 F.4th

1055, 1089 (9th Cir. 2022) (quoting United States v. Williams, 553 U.S. 285, 304

(2008)). Where criminal sanctions are involved, as is the case here, Cal. Health &

Safety Code § 25993(b), “the standards of certainty [are] higher than” in the case

of civil sanctions. Maldonado v. Morales, 556 F.3d 1037, 1045 (9th Cir. 2009)

(citation omitted).

Section 25990(b) makes it unlawful to “knowingly engage in the sale”

within California of non-compliant pork meat. The statute further provides that “a

sale shall be deemed to occur at the location where the buyer takes physical

possession of an item covered by [the statute].” Cal. Health & Safety Code

§ 25991(o).

IPPA first argues that “engage in” is unconstitutionally vague because it

could apply to anyone in the supply chain. We disagree.

The term “engage in” is widely used and readily understood. Generally, to

“engage in” an activity means to “take part in” that activity. See, e.g., Engage,

Black’s Law Dictionary (11th ed. 2019) (“To employ or involve oneself; to take

9 part in; to embark on”). IPPA insists that entities upstream of a sale in California

might be deemed to have “engaged in” that California sale. Upstream entities, by

virtue of being upstream, are not engaging in the ultimate sale in California; rather,

they are engaging in earlier, separate sales.7

IPPA also makes the derivative argument that “knowingly,” as used in

§ 25990(b), is impermissibly vague because one cannot know whether one is

“engaging in a sale” in California. This argument is premised upon IPPA’s

contention that the phrase “engaging in” is unconstitutionally vague. Because

“engaging in” a California sale is not unconstitutionally vague, however, one

would understand what it means to “know” one is taking part in such a sale. See

Cal. Penal Code § 7 (to act “knowingly” is to act with “knowledge that the

[operative] facts exist”); Vill. of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 499 (1982) (“[A] scienter requirement may mitigate a law’s

vagueness, especially with respect to the adequacy of notice to the complainant

that his conduct is proscribed.”). One knowingly engages in the sale of pork meat

in California if one takes part in a sale with knowledge that the buyer will take

possession of the pork meat in California.

4. IPPA also raises a facial vagueness challenge. Where a challenged

7 To the extent IPPA challenges the regulations accompanying Proposition 12, those regulations are not identified in the complaint and are therefore not before the court. See Lee, 250 F.3d at 688.

10 law does not implicate First Amendment rights, a party raising a facial challenge

“must demonstrate that the enactment is impermissibly vague in all of its

applications.” Hess v. Bd. of Parole & Post-Prison Supervision, 514 F.3d 909, 913

(9th Cir. 2008) (citation omitted). Because Proposition 12 does not implicate First

Amendment rights, it is only facially vague if it specifies “no standard of

conduct . . . at all.” Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1020 (9th Cir.

2013) (citation omitted). Because the statute is sufficiently clear as applied to

IPPA, it is not “impermissibly vague in all of its applications.” Hess, 514 F.3d at

913 (citation omitted).

5. We now address IPPA’s claim under the Privilege and Immunities

Clause, which provides that “[t]he Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several States.” U.S. Const. art. IV, §

2, cl. 1. To state a claim, IPPA “must show that the challenged law treats

nonresidents differently from residents and impinges upon a ‘fundamental’

privilege or immunity protected by the Clause.” Marilley v. Bonham, 844 F.3d

841, 846 (9th Cir. 2016) (en banc) (citation omitted). IPPA cannot do so because

Proposition 12 treats all businesses the same by prohibiting all of them from selling

non-compliant pork, regardless of where they reside. See Cal. Health & Safety

Code § 25990. Thus, citizens of other states are on “the same footing” as citizens

of California. See McBurney v. Young, 569 U.S. 221, 226 (2013) (citation

11 omitted).

6. IPPA contends that Proposition 12 is impliedly preempted by the

Packers and Stockyards Act based on principles of conflict preemption. A federal

statute preempts state law where “a party’s compliance with both federal and state

requirements is impossible,” or where “state law poses an obstacle to the

accomplishment of Congress’s objectives.” Whistler Invs., Inc. v. Depository Tr.

& Clearing Corp., 539 F.3d 1159, 1164 (9th Cir. 2008).

The Packers and Stockyards Act makes it unlawful “for any packer or swine

contractor” to “[m]ake or give any undue or unreasonable preference or advantage

to any particular person or locality in any respect, or subject any particular person

or locality to any undue or unreasonable prejudice or disadvantage in any respect.”

7 U.S.C. § 192(b). IPPA argues that Proposition 12 requires packers and

wholesalers to favor in-state pork producers, who have had more time to comply

with the requirements of Proposition 12. But Proposition 12 does not require

packers or wholesalers to favor or disfavor any pork producers based on their

location. It instead prohibits packers and wholesalers from selling non-compliant

pork meat in California, regardless of where such meat originates. See Cal. Health

& Safety Code § 25990. IPPA does not allege that out-of-state producers are

unable to comply with California’s requirements, such that Proposition 12 requires

packers and wholesalers to prefer in-state producers. Thus, Proposition 12 does

12 not render it impossible to comply with the Packers and Stockyards Act, nor serve

as an obstacle to its purposes and objectives.

AFFIRMED.

13

FILED

JUN 25 2024

CALLAHAN, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I join the court in holding that we are bound by National Pork Producers

Council v. Ross (NPPC I), 6 F.4th 1021 (9th Cir. 2021). As the memorandum

disposition explains, none of the opinions in National Pork Producers Council v.

Ross (NPPC II), 598 U.S. 356 (2023) “can reasonably be described as a logical

subset of the other.” See United States v. Davis, 825 F.3d 1014, 1021–22 (9th Cir.

2016) (en banc). I also find it significant that IPPA concedes that the result in

NPPC I controls. See United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020)

(“[W]e rely on the parties to frame the issues for decision . . . .”).

I write separately, however, to note that there may indeed be a “single

underlying rationale” in NPPC II that would have saved IPPA’s Pike claim. See

Davis, 825 F.3d at 1021–22. By my count, a majority of the Justices would find

that (i) Proposition 12 is compatible with Pike balancing, and (ii) IPPA plausibly

alleged that Proposition 12 imposes a substantial burden on interstate commerce.

In view of this, were we not bound by NPPC I, remand to the district court would

have been appropriate “to decide whether [IPPA] stated a claim under Pike.”

NPPC II, 598 U.S at 395 (Roberts, C.J., concurring in part and dissenting in part). 1

1 The majority says my analysis “disregards” a rule that courts cannot consider dissents when interpreting fractured Supreme Court decisions. Mem. Disp. n.5. The opposite is true. The last time this court sat en banc to interpret Marks it looked at the votes of all Supreme Court justices from a fractured decision. See Davis, 825 F.3d at 1025 (considering Chief Justice Roberts’s dissent in Freeman v.

-1- Proposition 12 Is Compatible with Pike Balancing

To begin, only three Justices believe that Proposition 12 is incompatible with

Pike balancing. According to Justices Gorsuch, Thomas, and Barrett, weighing the

burdens of Proposition 12 on interstate commerce with the moral and health

interests of California is “a task no court is equipped to undertake.” NPPC II, 598

U.S. at 381–82 (Part IV-B).

Six Justices disagree. Chief Justice Roberts—joined by Justices Alito,

Kavanaugh, and Jackson—explained that when it comes to Proposition 12, “a

majority of the Court agrees that it is possible to balance benefits and burdens

under the approach set forth in Pike.” Id. at 397 (Roberts, C.J., concurring in part

and dissenting in part.). Justices Sotomayor—joined by Justice Kagan—similarly

found Proposition 12 capable of judicial balancing. Id. at 392–93 (Sotomayor, J.,

concurring in part) (“Justice Gorsuch, for a plurality, concludes that petitioners’

Pike claim fails because courts are incapable of balancing economic burdens

against noneconomic benefits. I do not join that portion of Justice Gorsuch’s

United States, 564 U.S. 522 (2011) to explain why “the plurality and dissent do not share common reasoning whereby one analysis is a logical subset of the other.”) (internal quotations omitted). The statement in Ballinger about Marks, which was not “germane to the eventual resolution of [Ballinger],” does not change this. See United States v. McAdory, 935 F.3d 838, 843 (9th Cir. 2019); see also United States v. Orozco-Orozco, 94 F.4th 1118, 1128 (9th Cir. 2024) (explaining that statements regarding “non-litigated issues” cannot be “precedential holdings binding future decisions”).

-2- opinion. . . . I agree with the Chief Justice that courts generally are able to weigh

disparate burdens and benefits against each other, and that they are called on to do

so in other areas of the law with some frequency.”). See also id. at 403

(Kavanaugh, J., concurring in part and dissenting in part) (“In today’s fractured

decision, six Justices of this Court affirmatively retain the longstanding Pike

balancing test for analyzing dormant Commerce Clause challenges to state

economic regulations.”).

Proposition 12 Imposes a Substantial Burden on Interstate Commerce

Writing separately, Justice Barrett stated that if the “burdens and benefits [of

Proposition 12] were capable of judicial balancing, I would permit petitioners to

proceed with their Pike claim.” NPPC II, 598 U.S. at 393–94 (Barrett, J.,

concurring in part). According to Justice Barrett, this is because petitioners’

complaint alleged that “Proposition 12’s costs are pervasive, burdensome, and will

be felt primarily (but not exclusively) outside California.” Id. (“I disagree with

my colleagues who would hold that petitioners have failed to allege a substantial

burden on interstate commerce.”). And, as explained above, a majority of the

Court does indeed find that the burdens and benefits of Proposition 12 are capable

of judicial balancing.

According to Chief Justice Roberts and the three other Justices who joined

him, petitioners in NPPC II plausibly alleged that Proposition 12 imposes “a

-3- substantial burden against interstate commerce” and that “Pike found both

compliance costs and consequential market harms cognizable in determining

whether the law at issue impermissibly burdened interstate commerce.” Id. at 398

(Roberts, C.J., concurring in part and dissenting in part). The four Justices further

noted that, in addition to alleging compliance costs, petitioners asserted harms “to

the interstate market itself.” Id. at 399–400 (“[D]ue to the nature of the national

pork market, California has enacted rules that carry implications for producers as

far flung as Indiana and North Carolina, whether or not they sell in California.”).

Accordingly, they would have held that “[t]he Ninth Circuit misapplied our

existing Pike jurisprudence” and that remand was required for the court below to

decide petitioners’ Pike claim. Id. at 395.

So, five Justices would have found IPPA plausibly alleged that

Proposition 12 imposes a substantial burden on interstate commerce. Only four

Justices would conclude that Proposition 12 does not impose “substantial burdens”

on interstate commerce. See 598 U.S. at 383–87 (Part IV-C) (Gorsuch, Thomas,

Sotomayor, Kagan, J.J.).

***

Putting this all together, I read NPPC II as supporting the following

conclusions: (i) that Proposition 12 is compatible with Pike balancing, and (ii) that

IPPA plausibly alleged Proposition 12 imposes a substantial burden on interstate

-4- commerce. However, these conclusions do not derive from opinions that are a

“logical subset of the other.” Davis, 825 F.3d at 1025 (“[T]he plurality and dissent

do not share common reasoning whereby one analysis is a logical subset of the

other.” (internal quotations and citations omitted)). If they did, I would remand for

the district court to decide IPPA’s Pike claim.

-5-