A new study says EATS Act could do a lot of damage, including to food safety

When the conservative U.S. Supreme Court said California could put whatever restrictions it wanted on selling meat, it left rural producer states scratching their heads.

The Court’s state’s rights philosophy upheld the animal housing requirements of Proposition 12 but left pork producers and the National Farm Bureau wondering what happened.

And it left rural America to come up with a “big government” solution, which they say is needed to preserve the rights of state and local governments.

But animal activists say the EATS Act could jeopardize more than a thousand public health, safety, and welfare laws, according to a new research report. 

A new report analyzing the “Ending Agricultural Trade Suppression Act” (“EATS Act”) and its potential widespread consequences was released Wednesday by the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School.

The 48-page report reveals that the likely negative impacts of the EATS Act could range far more widely than its sponsors envision – threatening states’ rights, consumer safety, and farmers’ livelihoods. 

The report also raises several questions about the constitutionality of the EATS Act itself. This research builds upon Harvard’s 2018 report on the Protect Interstate Commerce Act by outlining the EATS Act’s legislative history and legal background, providing a section-by-section legal analysis of the bill, and identifying a range of regulatory areas the EATS Act could disrupt. The report additionally provides a 100-page state-by-state index listing of more than 1,000 state laws and regulations that potentially could be challenged and invalidated if the EATS Act becomes law.

The “Ending Agriculture Trade Suppression or EATS Act” is the so-called solution.   Rural Republicans are signing on to the legislation. They think the EATS Act would overturn the Supreme Court’s ruling on Prop 12 and prevent California from imposing its will on farmers and ranchers outside the Golden State.

As the report details, if enacted either on its own or as part of the U.S. Farm Bill, the EATS Act could create a regulatory race to the bottom by substantially curtailing the ability of state and local governments to regulate the production and sale of agricultural products – potentially nullifying over a thousand state laws and likely many more.

Senator Roger Marshall and Rep. Ashley Hinson stated that they introduced the latest EATS Act (S.2019/H.R.4417) in direct 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. 

“The language of the EATS Act leaves open significant questions, and each of these unresolved questions has the potential to disrupt entire industries and billions of dollars of investment,” says Kelley McGill, Regulatory Policy Fellow with the Brooks McCormick Jr. Animal Law & Policy Program, and author of the new report. “If enacted, the legislation would spawn substantial litigation through its citizen suit provision, likely subjecting state and local governments to countless costly lawsuits. It could be years before courts are able to provide a functional understanding of the EATS Act. Even for producers who initially might benefit from the EATS Act, this uncertainty and disruption could be extensive.”

The EATS Act stems from legislation initiated by former Iowa Rep. Steve King which unsuccessfully sought to counter state animal protection laws.

The report outlines several specific concerns with the EATS Act. One is that key terms such as “standard,” “condition,” and “preharvest production” are not defined anywhere in the bill – while other terms such as “agricultural products” are defined so broadly as to include vaccines, vitamins, and even narcotics potentially. The EATS Act’s Rule of Construction also attempts to freeze future legislative progress by preventing any further regulation of agricultural products where none currently exists. Lastly, the EATS Act tries to create a citizen suit provision that essentially would permit anyone to legally challenge any regulation of any agricultural product sold in interstate commerce. This private right of action also would invert longstanding burdens of proof by placing the onus on states to prove they likely would prevail at trial and suffer irreparable harm in order to prevent their laws from being enjoined.

For some agricultural products, the Harvard study claims the EATS Act threatens to create regulatory voids or regulatory ceilings where none existed before, leaving entire sections of industries unregulated. A number of laws the EATS Act could obstruct were drafted for the benefit of consumers, so without these protections, product quality, transparency, and safety may suffer.

“The EATS Act could tip the balance of states’ rights and circumvent decades of settled constitutional jurisprudence by federally overriding the expressed will of U.S. voters – shifting agricultural oversight away from states and localities toward federal administrative agencies and the federal judiciary,” said Chris Green, the Harvard program’s executive director who supervised and edited the report. “Our report seeks to bring an informed perspective to the conversation around such legislation and identify a range of very real unintended consequences that could result from the EATS Act’s passage or inclusion in the U.S. Farm Bill.”

The report also finds that while some agricultural producers may face less oversight because of the EATS Act, those same producers could suffer negative consequences from the federal legislation. A significant portion of the laws and regulations the EATS Act potentially could prohibit indeed were enacted to safeguard agricultural production itself. Such regulations related to importing and inspecting livestock and plants into states exist to protect producers from costly diseases and pests such as highly pathogenic avian influenza, African swine fever, and the emerald ash borer. The EATS Act’s potential invalidation of these regulations could jeopardize entire sectors of the agricultural economy and threaten the livelihoods of local producers. If the EATS Act were adopted, producers who already have made significant investments in updating infrastructure in response to state measures such as Prop 12 could also see those investments’ economic value plummet without receiving compensation for their losses.

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