EATS Act ‘a radical assault on federalism principles’

Last year, giant meat-packing companies brought a case to the Supreme Court challenging California’s right to prohibit the in-state sale of meat produced through cruel and unsafe practices. They argued that regulating the sale of goods (in California) on the basis of how they were produced (anywhere) is somehow “extraterritorial” legislation because it may have practical effects on how producers act in other states if they want to sell in California. The Supreme Court unanimously rejected that misunderstanding.

Nonetheless, a handful of legislators in the Senate and House are now attempting an even more radical assault on federalism principles with the Ending Agricultural Trade Suppression (EATS) Act, which would eliminate state and local authority to “impose a standard or condition on the preharvest production” — terms not further defined — “of any agricultural products” to be sold in the state if “the production occurs in another State.” The pork industry’s wrong-headed constitutional arguments at least had some limits, since they would have invalidated traditional state authority only if “the practical effect of the regulation is to control conduct beyond the boundaries of the State” or the burdens are “clearly excessive in relation to the putative local benefits.” 

The EATS Act, by contrast, would completely reverse the usual rule that every state gets to regulate what happens within its own borders, and replace it with a novel regime in which minimum standards for the sale of consumer goods are established not by the state of sale but by the state of production. A Virginia law forbidding the sale of vegetables that were fertilized with human sewage would be displaced by the laws of any other state with less rigorous standards.

Proponents of the EATS Act say it will protect the free flow of commerce in agricultural products. In reality the Act would trigger an unhealthy race to the bottom. As Justice Neil Gorsuch explained in National Pork Producers Council Et Al. v. Ross, Secretary Of The California Department Of Food And Agriculture, Et Al.,  “[r]ather than respecting federalism, a rule like that would require any consumer good available for sale in one State to be made available in every State.” And since voters with different preferences will not long tolerate that state of affairs, the result will be pressure on Congress to set its own minimum standards for agricultural production — making farming yet another industry regulated by some new federal bureaucracy.

Recently, some EATS Act supporters have claimed that the Supreme Court called for such action in the California pork case. Hogwash. In its decision, the court noted that Congress has previously chosen not to do anything like the EATS Act, and said that “it is hard not to wonder whether petitioners have ventured [to the Court] only because winning a majority of a handful of judges may seem easier” than convincing Congress. That’s not an endorsement of the EATS Act, just an observation that the court doesn’t legislate.

There’s nothing novel about state laws having out-of-state effects. A few years ago, Amazon sellers were hoarding personal protective equipment and charging outrageous prices, and Kentucky’s attorney general sued them under a state law prohibiting price gouging during natural disasters. The defendants argued that as a practical matter Kentucky’s law would force them to lower prices in other states, since different pricing in different places was impractical. The 6th U.S. Circuit Court of Appeals’ response was: so what? Kentucky doesn’t lose the power to regulate sales inside Kentucky just because it has incidental effects outside the state. A coalition of deep red farm states supported Kentucky in that case, and rightly so. 

Of course uniform national standards are needed in some markets. But the EATS Act does not set standards—it just would vaporize state regulation and leave a vacuum for the lowest-standard producers to exploit. And the EATS Act does not embody nuanced policy choices. It is a blunt instrument invalidating any state regulation based on the “preharvest production” of agricultural products, whatever that means. The opacity of that language should illustrate that its proponents do not want it to be fully understood.

The Biden administration supported the giant pork companies in the Supreme Court case, and argued that California voters are not entitled to enact their “philosophical preferences” into law. To be clear, the local laws the EATS Act would displace often are about public health, not just “philosophical preferences.”

Regardless, people are entitled to have values — not just economic interests and health concerns. As Justice Antonin Scalia pointed out many times, moral sentiments are a perfectly traditional basis for legislation. You may find it annoying that California or Massachusetts voters have strong feelings about how they want the animals they eat to be raised, or their vegetables to be grown. But you may feel differently when the question is whether your state should have the power to prohibit the sale of pharmaceutical products made using human fetal tissue. Federalism makes it possible for communities with different values to coexist, and voters are entitled to be concerned about whether their state’s markets are subsidizing and encouraging conduct they consider wrongful.

Scott Ballenger directs the Appellate Litigation Clinic at the University of Virginia School of Law.