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.
The livelihoods of farmers would also be affected, she says. “The EATS Act could prohibit certain state and local regulations governing pests and diseases, removing critical tools that help protect farmers and their crops and livestock from the spread of invasive pests and disease,” McGill says. “The prohibition of these regulations by the EATS Act could jeopardize entire sectors of the agricultural economy and threaten the livelihoods of local producers. The EATS Act also would devalue significant infrastructure investments made by certain farmers in order to comply with state laws.”
The Cost of Compliance
Shawn Stevens, a food industry attorney with the Food Industry Counsel and a member of the Food Quality & Safety Editorial Advisory Board, says that certain states, such as California, have essentially come close to reaping havoc on the food industry on a national level by creating their own sets of rules that apply to various food commodities, and he believes this isn’t good for business or for the consumer. “If we harken back to Upton Sinclair, who wrote The Jungle in the early part of the last century, what he described was a mishmash of rules and regulations—and in some cases, no regulations—applicable to the slaughter and processing of beef,” Stevens says. “Because of this, every state was doing their own thing, and it made it difficult, if not impossible, to efficiently produce and sell food products throughout the U.S.”
In response, Congress passed the Federal Meat Inspection Act (FMIA) in 1906, which set a single set of standards applicable to slaughter and processing facilities throughout the country, for all meat and poultry. “The idea was to create a uniform set of standards so everyone was operating on the same level and the consumer knew what he or she was getting,” Stevens says. “It enhanced, improved, and supported interstate commerce.”
There’s also a clause in FMIA that prohibits states from creating any additional or different rules than those set forth in the act. “The EATS Act, in essence, is mirroring the preemption clause in FMIA, but extending that clause to agricultural products, through the raising of cattle or other animals intended for slaughter,” Stevens says. “I think it’s a great idea, and I don’t see why anyone would oppose this, unless you’re a senator from California. Therefore, this is as constitutional as you can get.”
The National Pork Producers Council (NPPC) is one group that supports the EATS Act, citing concerns about the cost of compliance with certain state laws for some pork producers. The group also notes that U.S. pork producers are struggling economically. Since Proposition 12 requires capital investment that many producers will not have access to and that will lead to further consolidation between producers who have financial resources and those who don’t, fewer family farmers would continue to operate, says the organization.
Scott Hays, NPPC’s president and a pork producer from Missouri, says that a bipartisan, legislative solution to Prop 12 that ensures affordable, healthy pork products remain available to all Americans, including Californians, is fundamentally important for America’s pork producers. “Therefore, NPPC supports a legislative solution that helps us achieve that goal, which gets right at the fabric of our democracy—by not restricting trade between states,” Hays adds. “The implications are far reaching for agriculture and will stretch to other industries if a solution is not reached.”
Potential Impact on the Food Industry
McGill believes that if enacted, the legislation would cause significant disruption and uncertainty for producers and regulators in the food industry. “Many key terms are undefined in the legislation, leaving open the potential scope and effects that it might have,” she says. “State and local governments may stop enforcing a wide swath of their food and agriculture regulations rather than risk being sued under the expansive private right of action created in section 3 of the legislation. State and local governments also may be chilled from enacting new regulations related to food production to avoid costly litigation.”
Stevens disagrees that it would be that disruptive and stresses that it’s an important piece of legislation that must be passed. “If it is approved by congress and signed by the President, nothing will change; it will be the status quo, and everyone will be happy,” he says. “If it’s not passed, it could be seen as an endorsement to California and other states to go and make whatever rules they want and apply them to the raising of livestock, and we can end up in this crazy swirl where the only place you can get affordable beef is at your local corner butcher shop.”