Prop 12 And The EATS Act: Fighting For Basic Animal Welfare Reforms

Photo by Adam Michael Szuscik on Unsplash

A version of this post originally appeared on the Faunalytics blog.

This blog explores how animal advocacy groups defended Proposition 12 at the Supreme Court, and explains the current threat to state welfare laws as a result of that court decision.

Proposition 12: A State Victory For Farmed Animals

“While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list,” Supreme Court Justice Neil Gorsuch penned.

This statement can be found in the recent U.S. Supreme Court decision, National Pork Producers Council v. Ross (NPPC). In this landmark decision, the Court upheld the constitutionality of California’s Proposition 12 (Prop 12), also known as the Farm Animal Confinement Initiative. Specifically, Prop 12 established minimum space requirements for egg-laying hens, calves raised for veal production, and mother pigs (also known as “sows”) and prohibited the sale of products sourced from those kept in conditions below these specified standards. In 2018, Prop 12 garnered support from 63% of California voters. This amounts to more than 7.5 million individuals voicing their opposition to the sale of products made from farmed animals. 

As a result of this decision, millions of sentient beings will no longer endure the harsh confinements of battery cages, veal crates, and gestation crates. Although NPPC is focused on sows, its impact also extends to approximately 40,000,000 hens whose eggs are sold in California annually, ensuring them the ability to exhibit natural behaviors such as standing up, turning around, and stretching their wings. While these new standards still permit immense suffering on factory farms, this is presumably a step in the right direction.

At our non-profit legal organization Legal Impact for Chickens (LIC), our goal is to make animal cruelty on factory farms a liability. In this blog, we explore how a coalition of other animal rights groups effectively defended Prop 12 at the Supreme Court. We then discuss new challenges to Prop 12 and other state animal welfare laws as a result of that Supreme Court decision and what animal advocates can do to secure legal wins for farmed animals in the future.

The Supreme Court Case

Despite claiming that its farmers “care deeply about the health and well-being of their animals and have a moral obligation to raise them humanely and compassionately,” the National Pork Producers Council, along with the American Farm Bureau Federation, sued to prevent Prop 12’s modest welfare reforms from going into effect, largely in light of increased production costs. 

The NPPC petitioners argued that Prop 12 violates the Dormant Commerce Clause, a constitutional doctrine that essentially prohibits states from discriminating against out-of-state businesses. (The “Dormant Commerce Clause” is not actually a clause in the U.S. Constitution. Because the Constitution gives Congress the power to regulate interstate commerce, judges have inferred that this limits state government regulation of interstate commerce, and those limits are referred to as the Dormant Commerce Clause.) 

Arguing that Prop 12 effectively compels farmers outside of California to adhere to its standards and impacts non-California pork purchases, they posited that Prop 12 “impermissibly intrudes” upon interstate commerce and thus violates a part of the Dormant Commerce Clause called the “extraterritoriality doctrine.” NPPC’s first theory was that the Dormant Commerce Clause prohibits nearly any state law that controls commerce outside the state. The Court rejected this theory as too broad, noting that in today’s interconnected economy, a wide variety of state laws from taxation to environmental regulation impact the behavior of out-of-state businesses, and that the Dormant Commerce Clause doctrine is more concerned with preventing states from intentionally discriminating against out-of-state businesses. 

Second, the NPPC cited a prior Supreme Court case, Pike v. Bruce Church. They argued that the Pike decision said that a law violates the Dormant Commerce Clause if it places burdens on out-of-state commerce that significantly outweigh the in-state benefits of the law. The petitioners asserted that the Court should invalidate Prop 12 upon assessing its costs to out-of-state farmers and consumers versus benefits to Californians. However, Justice Gorsuch contended that this expanded interpretation of the Dormant Commerce Clause would grant courts “freewheeling power” to overturn laws based on one or more judge’s analysis of the costs and benefits of that law. Justice Gorsuch stated that elected legislators are better suited than judges to weigh costs and benefits of a given law, especially where those costs and benefits range from economic to moral to health and welfare. 

However, if the out-of-state costs of a state law greatly outweigh the in-state benefits, this may suggest that the legislature intended to discriminate against out-of-state businesses when it passed the law (which would violate the Dormant Commerce Clause). For this reason, judges can consider the costs and benefits as one factor when they are analyzing a law according to the Dormant Commerce Clause. In this case, because the NPPC had admitted that the people of California did not intend to discriminate against out-of-state businesses when they passed Prop 12, the Supreme Court did not need to do a cost-benefit analysis to determine whether California intended to burden interstate commerce in violation of the Dormant Commerce Clause.

A New Challenge To Welfare Reforms: The EATS Act

Just a month following the NPPC decision, Prop 12 found itself under renewed scrutiny, this time in the form of the Ending Agricultural Trade Suppression Act (EATS Act). Representatives in both the U.S. House and Senate are advocating for the inclusion of this bill in the next Farm Bill, an extensive piece of federal legislation that governs an array of programs spanning agriculture, nutrition assistance, conservation, and crop insurance, among other things. 

If the EATS Act were incorporated into this legislation, it would place restrictions on states and local jurisdictions, limiting their ability to regulate the production of agricultural products sold in interstate commerce. This restriction would apply under two conditions: firstly, when the production takes place in a different state, and secondly, when the standard imposed is more stringent than the federal law or the laws of the state and local jurisdiction where the production occurs.

The EATS Act inherently poses a significant threat to Prop 12, as was intended. Senator Chuck Grassley (R-IA) explicitly referenced its intended impact, stating, “California’s Proposition 12 is going to hurt the economy of Iowa, which is number one in pork production. Because we farm differently than the eggheads of California think we ought to run our animal agriculture, we can’t sell our product there. We have to solve this problem by passing legislation. Our bill [the EATS Act] makes sure Iowa pork can be sold everywhere in the nation, including in California, and consumers can afford bacon for breakfast.” 

This suggests that Prop 12, as well as other laws aimed at improving food production standards spanning animal welfare, environmental sustainability, and food safety, would risk invalidation under the EATS Act. Many, if not most, state laws on those subjects would effectively be constrained by the least stringent standards upheld by any given state. 

For instance, even if the majority of voters in California or Massachusetts strongly oppose the practice of confining hens to battery cages, under the EATS Act their voices could be overruled by egg-producing states with the least protective measures for hens, such as Alabama, Iowa, and Mississippi. Because of this, utilizing states’ democratic processes to achieve progress for animals would be considerably more difficult. 

The prospect of the EATS Act finding its place in the forthcoming Farm Bill remains uncertain, but perhaps there is room for some cautious optimism. For instance, this proposed legislation draws inspiration from the twice-unsuccessful “King Amendment,” championed by former Representative Steve King (R-IA) for both the 2014 and 2018 Farm Bills. Moreover, a bipartisan group of 171 U.S. Representatives recently voiced “strong opposition” to the inclusion of the EATS Act in the 2023 Farm Bill through an open letter addressed to the U.S. House Committee on Agriculture. In addition to curtailing state autonomy, they underscored the bill’s potential to harm small American farmers as well as undermine existing regulations concerning public health, food safety, and animal welfare.

Securing Future Victories For Farmed Animals

Securing tangible legal victories for farmed animals remains an ongoing challenge, not least because of the immense influence of financial interests whose profit motives align with preserving the status quo. Predictably, this status quo entails the intensive confinement and the unrelenting suffering of millions of sentient beings. While there is momentum for change, as exemplified by the recent emergence of laws like Prop 12, politicians and lobbying groups are seeking to thwart this movement, whether it be through Supreme Court petitions or under the guise of legislation that “ends agricultural trade suppression.”

Consequently, it has become increasingly vital to safeguard the democratic processes that possess the potential to actualize a more just food system, perhaps one in which labels like “cage-free” or the notion of “intensive confinement” are rendered obsolete. 

Please consider urging your Congress members to oppose the EATS Act, and sign the Defeat EATS Coalition’s petition. For anyone looking to do more to stop the EATS Act from passing, you can volunteer to phone bank for the Humane Society, get involved with Farm Action Fund, or donate to any member organizations of the Defeat EATS Coalition.