In 2018, California voters approved a ballot measure to ban the sale of meat and egg products from farms that raise their pigs and egg-laying hens in confined, tiny spaces.
Five years later, that measure is finally moving forward after the Supreme Court this May rejected a challenge to it by the pork industry. But Proposition 12 and others like it are facing headwinds.
Republicans in both the U.S. House and Senate are pushing a bill to block state and local governments, not only in California but across the country, from being able to place restrictions on the crops and animals sold in their jurisdictions.
In Florida, statewide voters in 2002 approved an amendment to the state constitution, which went into effect in 2008, that said pregnant pigs could not be confined in such a way that “prevented (them) from turning around freely.”
It's been largely criticized by conservatives ever since. Republicans in the Legislature have used the measure as an example in efforts to rein in the state's citizen initiative process and make it harder for proposed amendments to get on the ballot.
At issue, according to one of the bill’s proponents, is allowing states like California to “dictate what Iowa farmers can do,” a spokesperson for Republican Iowa Sen. Joni Ernst told Route Fifty.
A spokesperson for Sen. John Boozman of Arkansas, the top Republican on the Senate agriculture committee, added that if states are allowed to continue to set rules on farmers and breeders in other states, agricultural businesses would have to deal with “50 different standards for animal welfare, which would harm both farm families and consumers.”
The Ending Agricultural Trade Suppression or EATS Act is backed by 16 state attorneys general. In a letter to congressional leaders last week, they argued that allowing states like California to set “radical” and “hog wild” requirements are an “attack” on the authority of other states to set their own standards. “This does not stop at hogs,” they wrote.
But critics of the bill, including associations representing state legislatures and cities, worry that it would negate laws meant to prevent diseased animals or crops with plant-killing bugs from spreading to other parts of the country.
'EATS Act' could upend state, local laws
Under the EATS Act, which would be part of the farm bill, Congress could put into jeopardy thousands of laws passed by states and cities around the country, according to a recent analysis by the Brooks McCormick Jr. Animal Law & Policy Program at Harvard University.
The proposal could wipe away laws dealing with “everything from commercial fishing regulations to the slaughter of horses, [...] creating cascading effects far beyond the core farm commodities it seeks to protect,” said the analysis, which included a list of laws that could be impacted that stretched for 100 pages.
Laws intended to prevent the spread of infectious diseases like avian influenza, or bird flu, “could be one of the most significant casualties,” wrote the report’s author, Kelley McGill, regulatory policy fellow with the Animal Law & Policy Program.
Under the bill, state and local governments would be barred from imposing standards or conditions that can prevent crops and animals from being brought into their areas based on their “preharvest production.” (The bill fails to clearly define “preharvest,” which the analysis cautions could lead to a court assigning it an expansive definition to mean any restriction on importing any live animal that hasn’t been slaughtered yet.)
Individuals would also be able to challenge laws that keep them from selling agricultural products in another state. Unless a state or local government could prove that blocking such a law would cause irreparable harm, courts would be required to impose a preliminary injunction to suspend the requirements.
Because the courts would be left to decide, the report warned that the bill could shift “tremendous power from state and local legislative bodies to the judiciary.”
“If passed, EATS would erode state and local sovereignty by prohibiting the establishment of laws and statutes that aim to protect our nation’s food production and manufacturing,” the National League of Cities said in a statement. A spokesperson for the group said it is working with other associations to draft a letter to Congress opposing the bill.
Kristen Hildreth, the National Conference of State Legislatures’ senior legislative director for state and federal affairs, said the bill is similar to proposals former Iowa Republican Rep. Steve King unsuccessfully tried to include in the updates of the farm bill in 2014 and 2018.
Her group, as well as several other associations, also opposed that proposal, writing in a 2018 letter to congressional leaders that it would endanger laws that state and local governments had passed to “protect our citizens from a wide array of threats including invasive pests and livestock diseases while maintaining quality standards for agricultural products and ensuring food safety.”
McGill, in an email, disputed the complaints that laws like California’s would put undue pressure on businesses to change their practice, noting that they don’t have to sell their products in that state.
Restrictions pit freedom against regulation
“As with other kinds of state regulations across the country that affect products imported from other states, each out-of-state producer has a choice about whether or not to sell their products into the regulated market. In this case, the regulated market,” she wrote, “California, is large, but that doesn't remove from producers the choice of whether to comply.”
She also disagreed with Boozman’s concern that without the bill, states would create different regulations around the country. “States already have in place thousands of regulations that producers have to comply with if they wish to do business in those regulating markets,” McGill wrote.
The Harvard report details hundreds of laws that could be upended under the bill.
An insect called the glassy-winged sharpshooter, for instance, creates about $100 million in damage to California’s grape and wine industry by damaging grape crops.
States with large wine industries like California and Oregon have created regulations that require inspections, quarantines and prohibitions to try to prevent the insects from coming into the state on certain plants.
The bill in Congress could make it “impermissible” for a state to require that agricultural products be treated with pesticides to kill the insects or ban the importation of infested agricultural products carrying the insect.
The EATS Act could undo laws in states like Alabama, Georgia and Louisiana aimed at preventing a bacteria that can cause trees to stop producing fruit from being imported into the states. The “regulations might not survive challenges” under the bill, the report said.
Over half the states in the nation have regulations on importing fish. West Virginia, for example, requires that fish be certified as disease-free before being allowed in the state. The law could also impact food safety laws, like Texas’ requirement that herds of cows be tested for tuberculosis and brucellosis before the milk they produce can be sold in the state. The EATS Act could make these regulations unlawful.
Spokespeople for these states’ agriculture departments did not respond to requests for comment.
Despite the report’s warnings, Don McDowell, communications director for the Iowa Department of Agriculture and Land Stewardship, said his main concern is other states imposing laws that could hurt Iowa’s agriculture businesses and prevent them from being able to sell their products in those states.
“Regardless of which legislative vehicle is used to accomplish this badly needed fix, it’s clear that Congress must take swift action to reestablish robust interstate commerce,” he said.