The Audacity of Scope

Late Wednesday night, July 11, the House Agriculture Committee added an amendment by Rep. Steve King (R-Iowa) to the farm bill that would severely limit states’ authority to regulate conditions or standards of agricultural production.

The measure’s intent, according to King, was to prevent the state of California from enforcing its ban on sales of eggs from hens kept in so-called battery cages, so small the animals cannot stretch their wings or walk.  This factory farming practice was barred by California’s Prevention of Farm Animal Cruelty Act, enacted in July 2010.

But the King amendment isn’t limited to overturning the California law.  Specifically, the amendment would “prohibit any state or local government” from “impos[ing] a standard or condition on the production or manufacture of any agricultural product sold or offered for sale in interstate commerce” if 1) production of the agricultural product also occurs in another state; and 2) the standard is in addition to the production or manufacture to federal law and the laws of the state is which such production occurs.”  This impenetrable language simply means that states would be prevented from regulating just about any agricultural product in commerce – contrary to the well-grounded constitutional principles of state police power to protect the health and safety of its citizens within the state.

This sweeping provision would severely undermine all states’ authority to set standards for environmental protection, food safety or animal welfare.   It would apply to genetically engineered food labeling, Concentrated Animal Feeding Operations (CAFO) regulation, antibiotics use in meat and other local and state food and farm regulations.

The King amendment’s definition of “agricultural products” would cover fruits, vegetables, plants, dairy, fish, livestock poultry and forest products, including processed and manufactured forms. The amendment could void state regulations on forestry, fish farming or water quality -- even if the citizens of that state passed a ballot initiative demanding government action.

Rather than declaring preemption if the state regulation conflicts with federal law, this amendment turns the federal preemption doctrine on its head. The state regulation will be void if it adds to the federal law but conflicts with another state’s law or lack of regulation. It’s preemption on steroids.

Under King’s amendment, federal legislation is no longer the floor, but the ceiling for protecting health and welfare of U.S. citizens. Furthermore, there will be a “race to the bottom” in food production given that the state with the least protection would become the de facto standard for all of us.

The audacity of the King bill’s scope is breathtaking. It’s a travesty for state governments and for safe, healthy food.  It would set a dangerous precedent for food safety regulation in the country. And, the serious constitutional questions it raises might very well bring the entire farm bill legislative process to a halt.

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