In response to the U.S. Supreme Court’s May 2023 decision in National Pork Producers Council v. Ross to uphold California’s farmed animal confinement law, Proposition 12, Senator Roger Marshall (R-KS) and Representative Ashley Hinson (R-IA) introduced the Ending Agricultural Trade Suppression (EATS) Act. If enacted, this legislation would federally overrule California’s law that, in part, prohibits the sale of pork from pigs confined to gestational crates, and similar state and local health, safety, and animal welfare laws.
The EATS Act is the most recent incarnation of legislation initiated by former Representative Steve King (R-IA) to counter state animal protection laws, which was unsuccessful in being included in both the 2014 and 2018 U.S. Farm Bills. New efforts, however, are underway to include the EATS Act in the next Farm Bill, which is expected to be finalized by the end of 2023.
In its decision, the U.S. Supreme Court acknowledged that California’s law highlighted the constitutional power Congress possesses to “regulate commerce … among the several states,” and suggested that Congress could displace the legislation by exercising its commerce power and enact legislation that regulates the interstate trade of pork.
Still, plenty of opposition to the EATs Act exists, with many claiming that the proposed legislation would curtail the ability of state and local governments to regulate the production and sale of agricultural products, potentially nullifying more than a thousand state laws.
In an August 2023 letter to the House Agriculture Committee, 150 lawmakers cautioned that the act would harm America’s small farmers, threaten numerous state laws, and infringe on the fundamental rights of states to establish laws and regulations within their own borders. “The EATS Act goes beyond overturning Proposition 12 to threaten many other state laws,” the letter stated. “The bill is particularly draconian in that it aims to negate state and local laws even if there is no federal standard to take their place, creating an overnight regulatory vacuum. In doing so, [it] would drastically broaden the scope of federal preemption and impede the ability of voters and elected officials to enact laws that address local concerns.”
A July 2023 report by the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School in Cambridge, Mass., analyzed the legislation and presented potential widespread consequences if the EATS Act passes. The report called the proposed legislation “unconstitutional” and said it would threaten states’ rights, consumer safety, and farmer livelihood.
Kelley McGill, a regulatory policy fellow at the program and author of the report, says the act raises potential constitutional questions related to the 10th and 11th Amendments in addition to state sovereignty. “Enactment of the EATS Act likely would spawn litigation that could tie up the legislation in courts for years to come,” she says. “This litigation would create years of regulatory uncertainty for food and agriculture industry participants, regulators, and consumers. Without regulatory certainty, it will be difficult for the industry to accurately conduct the forecasting necessary to make business decisions and move forward with plans.”
When it comes to states’ rights, McGill says that the EATS Act would upset the long-standing, constitutional balance of power between the 50 states and the federal government. “It would shift agricultural oversight power away from the states and to the federal government,” she says. “Federal agencies, such as USDA and FDA, would need to fill regulatory voids created by the EATS Act, and the federal judiciary would have to review a likely onslaught of challenges brought against and under the legislation.”
What’s more, her report says the act could prohibit the enforcement of numerous state and local regulations related to food safety, food quality, and product labeling, exposing consumers to new risks. “The EATS Act also could affect certain state and local regulations on pesticides and fertilizers as well as future restrictions on the use of antibiotics or growth hormones, soil or irrigation quality requirements, PFAS contamination thresholds, manure management practices, and limitations on genetic engineering and other technological processes,” McGill adds.