July 26, 2023 – A new report analyzing the “Ending Agricultural Trade Suppression Act” (“EATS Act”) and its potential widespread consequences was released today (July 26, 2023) by the Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School.
Harvard’s 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 over 1,000 state laws and regulations that potentially could be challenged and invalidated if the EATS Act becomes law.
The EATS Act is the most recent incarnation of legislation initiated by former Iowa Representative Steve King to counter state animal protection laws. Senator Roger Marshall and Representative Ashley Hinson indeed 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. Rossto uphold California’s farmed animal confinement law, Proposition 12 (“Prop 12”). While the language of the legislation has evolved throughout its progression from the King Amendment to its current form, the central aim of the EATS Act remains the same: to federally overrule Prop 12 and similar state and local health, safety, and welfare laws.
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.
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 potentially include vaccines, vitamins, and even narcotics. 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.
“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.”
For some agricultural products, 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 report concludes that while some agricultural producers may face less oversight as a result 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 the importation and inspection of 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 potential invalidation of these regulations by the EATS Act 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 also could see the economic value of those investments plummet, without receiving compensation for their losses.
“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.”
About Harvard Law School’s Brooks McCormick Jr. Animal Law & Policy Program
The Brooks McCormick Jr. Animal Law & Policy Program at Harvard Law School is committed to analyzing and improving the treatment of animals through the legal system. The Program engages with academics, students, practitioners, and decision-makers to foster discourse, facilitate scholarship, develop strategic solutions, and build innovative bridges between theory and practice in the rapidly evolving area of animal law and policy. In 2019 it launched the Animal Law & Policy Clinic to provide students with direct hands-on experience in animal advocacy on behalf of farmed animals, wildlife, animals used in research, entertainment, and in other forms of captivity, using strategies including litigation, legislation, administrative practice, and policy-making.