The U.S. Congress has been the scene of many a power grab over the years, but few have been as brazen as the current bid to tack onto the upcoming farm bill a vague and overreaching measure known as the EATS Act (S. 2019 in the Senate, with companion House legislation expected to be reintroduced soon). As an acronym, EATS stands for “Ending Agricultural Trade Suppression,” but in a classic Orwellian twist, the measure doesn’t end trade suppression. Actually, it encourages it.
To be clear, the EATS Act is a creature of an outlier minority faction in the pork industry. They fought against the passage of California’s Proposition 12, the country’s strongest farm animal protection law, and then its implementation, all the way to the Supreme Court, which decided against them in National Pork Producers Council v. Ross. Though they apparently want access to California’s market, the pork industry’s trade associations chose to wage this fight rather than encouraging producers (as the egg industry did) to take meaningful steps toward compliance with the state’s animal welfare standards. Now they’re digging in further, demanding that Congress upend 250 years of state and local authority to regulate the production and sale of agricultural products within a state’s borders.
Speaking truth to power often involves unmasking the untruths that power peddles whenever and wherever profits are at stake. On Tuesday, we did that, joining with business, legal, economic, and government experts to make the case against EATS at congressional briefings.
Our expert panelists on Tuesday included:
- Michigan Solicitor General Ann Sherman
- Chris Oliviero, general manager, Niman Ranch (a Perdue Farms brand)
- Professor Scott Ballenger, University of Virginia School of Law
- Jeff Peterson, director, Proterra Investment Partners
- Professor Galina Hale, University of California Santa Cruz’s Center for Analytical Finance
- Chris Green, Harvard Law School
- Ralph Henry, senior director, the HSUS Animal Protection Law division
Together, we made the case that if passed into law, the EATS Act could strip all states of their traditional authority to enact standards for the in-state production and sale of any agricultural products; such standards address food safety, public health, animal welfare and a host of other concerns.
In effect, the EATS Act inflicts a bottom-of-the-barrel framework on the entire nation, steering agricultural production, including the production of animal-derived foods, to the lowest standard around. If any one state permits the production or sale of a particular agricultural product, no matter how hazardous, low-grade or morally objectionable the circumstances of its production, every other state might be forced to do so and suffer the associated risks and harms.
By the logic of the EATS Act, if there is a lack of standards anywhere—under federal or state law—that shoddy benchmark will be the one that governs commerce in every corner of the country. For the entire history of this country, the states have regulated food and related activities, responding to local and regional conditions. The pork industry’s attempt to nationalize this responsibility by preempting all state law—even when there’s no federal standard in place—would produce a true hell on earth for animals, consumers, production workers and small and independent producers—in sum, a nightmare for the country.
Our panelists emphasized that a bill like this is made for Big Pork, which for decades has pursued technocratic efficiency at the expense of everything else, especially the welfare of animals. The pork barons behind this bill don’t seem to understand the world we’re living in now. Above all, they seem oblivious to the dramatic shift in consumer preferences and corporate supply chain decisions favoring higher animal welfare standards. Big Pork bet against these trends and lost—first with people who voted for change, and then in the courts.
So, they’re seeking a political handout from Congress that would erect barriers against change, limit innovation in the marketplace, and disadvantage those producers who have already moved to respond to consumer trends and preferences. Under EATS, there would be little room for consumer choice. And animal welfare, public health and other standards would disappear.
It’s worth remembering that the Supreme Court was unanimous on the basic issue in the recent Proposition 12 case. The justices rejected the pork industry’s central argument, seeking the same rule that it now seeks in Congress—that a state cannot regulate its own market if doing so has incidental effects outside of the state. Not a single justice thought California was acting in a manner that improperly regulated conduct outside of its borders.
Some proponents of the EATS Act are pounding their chests and shouting themselves hoarse in defense of free market economies. Yet none of the standards at issue force out-of-state economic actors to do anything. Those who want to sell products to California consumers can choose to operate there by meeting California’s standards (and the same applies for other states’ standards). No one has to do so.
Differentiation of America’s supply chains is not a new thing, and many of the nation’s biggest producers have said they can meet the standards in California and other states with similar laws while continuing to supply other markets. That includes many small farmers who have chosen to take advantage of the emerging market for high-welfare animal products in California and more than a dozen other states that have passed similar laws.
It's becoming clearer by the day that the pork lobby’s efforts to sabotage Proposition 12 and related laws are themselves disruptive of the market and threaten to put well over a billion dollars of investment at risk, the investments of those producers who have already moved to satisfy consumer and voter demand. On top of that, the overbroad framing of the measure will create confusion and disruption in relation to many state laws and regulations on other topics. By their intransigence, the NPPC and its allies are creating dangerous chaos and uncertainty in the national marketplace.
For these and other reasons, we are determined to keep the EATS Act and anything like it out of the farm bill. Ironically, the senators and representatives supporting the EATS Act have put themselves in the strange position of undermining the interests of their own states and the nation as a whole. We’re working as hard as we can to persuade their undecided colleagues that EATS is no kind of good governance. Quite the opposite.
Sara Amundson is president of the Humane Society Legislative Fund.