After much delay, the Senate and House of Representatives passed their separate versions of the Farm Bill this summer. The country is now awaiting the final version of the Farm Bill, which will control farm policy and federal farm programs for at least the next five years.
The House’s version of the Farm Bill, H.R. 2642, includes section 11312, better known as the “King Amendment,” as it is the more well-known of U.S. Rep. Steve King’s (R-IA) two amendments that were included in the House’s Farm Bill. Representative King calls it the “Protection of Interstate Commerce Act.” The practical effects of the King Amendment, if included in the final Farm Bill, would be so far-reaching that it has won the attention of animal-welfare groups, consumer and public-health groups, organic associations, environmental groups, and GMO-labeling advocates.
The King Amendment is short but hardly simple. Its unclear language has led to differing perspectives on what the effect of the law would be. Some read the King Amendment as being so broad that it would prevent a state from regulating both in-state and out-of-state producers beyond federal standards.
Others read the King Amendment more narrowly, so that it would only prohibit a state from setting production requirements for food sold in-state if the food is produced or manufactured in another state. In other words, a state could set in-state manufacturing requirements on producers, but it could not require out-of-state producers to meet those same requirements. Existing laws that do so would be preempted.
Heightened state-level production or manufacturing requirements could, for example, prohibit use of battery cages for hens, require a certain level of food processing, or require genetically engineered (GE) foods to be labeled as such.
To set production requirements on only in-state producers would likely be outside of a state’s economic interest. Doing so would likely disadvantage in-state producers, who might have to increase production costs to comply with the new requirements. Thus, if the King Amendment is included in the final Farm Bill, states would be unlikely to set their own more stringent food-production requirements. States will be forced either to “embrace the lowest common denominator … or to undercut the competitiveness of its own producers.”
Even assuming the narrower interpretation, which is how Rep. King understands his amendment, the King Amendment would still have far-reaching consequences. Rep. King has made it clear that his intent is to eliminate certain state-level animal-welfare laws that would impact out-of-state producers. His amendment would successfully do that. However, it would also impact food safety and potential future GE food-labeling laws.
It is not surprising that a representative strongly backed by large industrial livestock producers would try to wipe out state-level laws imposing more stringent production requirements on out-of-state entities selling a product within the state. Alternatively, animal-welfare advocates such as the Humane Society of the United States, which promotes passage of stricter animal-welfare laws, began public campaigns against the King Amendment when it was first introduced in 2012.
More stringent production requirements could include a host of potential animal-welfare laws, which may grow in popularity. Ballot initiatives relating to farmed animal confinement issues have a 100-percent success rate. In nationwide polls, consumers overwhelmingly oppose common practices such as densely crowding cages, forced molting, and debeaking. Animal welfare is now “one of the top three most important issues for restaurant patrons.” All 11 “ag-gag” bills that were seriously considered in state legislatures this year were defeated. With this sort of movement bubbling, the King Amendment is an essential move for those who rely on status quo livestock production.
The King Amendment would make federal animal-welfare laws the ceiling for all farmed animals in a state without more stringent animal-welfare laws. Currently, federal-level legal protections for farmed animals include only the 28-Hour Law and the Humane Methods of Livestock Slaughter Act. The 28-Hour Law requires carriers transporting livestock (not including poultry) to off-load the animals at least every 28 hours for food, water, and rest. The law gives very weak protection, as it was just recently extended to trucks in 2006, has not been enforced since the 1960s, and doesn’t apply to poultry, which constitute more than 90 percent of the farmed animals transported for slaughter. The Humane Methods of Livestock Slaughter Act requires that livestock are rendered insensible to pain before slaughter, again excluding poultry. No federal law governs the conditions in which livestock are born and raised.
State-level initiatives have shown that voters are interested in exceeding these sparse federal standards for farmed animal welfare.
For example, by requiring that farm animals have room to lie down, stand up, extend their limbs, and turn around freely, Proposition 2 in California has the effect of banning the use of gestation crates, veal crates, and battery cages beginning Jan. 1, 2015. The proposition passed by 63.42 percent. It was challenged by the egg industry in both federal and state courts and was upheld every time. Former Gov. Schwarzenegger signed into law A.B. 1437, now California Health & Safety Code § 25995, which extends the ban to any producer selling eggs in California. Although premised on safety concerns, section 25995 prevents California producers from having to economically compete against out-of-state producers who, without section 25995, would theoretically be able to produce eggs more cheaply because they do not have to comply with Proposition 2.
Florida, Arizona, Oregon, Ohio, Rhode Island, Colorado, Maine, and Michigan have also passed ballot initiatives or legislation that bans gestation crates, veal crates, and/or battery cages.
At the minimum, the King Amendment would preempt laws like section 25995 that demand consistency in the ethical standards used to produce food sold within the state. By preempting this type of law, the King Amendment decreases the incentive to pass state-level animal welfare laws by potentially undercutting in-state producers. Decreasing incentives for these laws would be devastating for animal welfare, as state-level animal-welfare laws are critical for raising basic care standards of farmed animals beyond the under-protective federal laws.
Consumer advocate opponents of the King Amendment state that it would jeopardize food safety. The amendment would prevent states from imposing stricter food-safety standards on out-of-state producers, which, again, will likely discourage states from imposing stricter requirements on their own producers.
From an animal welfare/food safety perspective, opponents claim that farm animals that are raised in extremely confined conditions, allowed by federal law, create and spread pathogens more than animals raised in less-confined conditions. This is disputed by opponents of animal-welfare regulations, who claim that, for example, cage-free eggs are not any safer and may be less safe to eat than eggs produced by chickens in battery cages. Aside from its implications for the King Amendment, the debate over whether battery-cage eggs are more or less safe than eggs from hens covered by California’s section 25995 will also have implications for the inevitable future commerce clause challenge if section 25995 is not preempted by the King Amendment.
Consumer and public health groups, via the Make Our Food Safe Coalition and the Safe Food Coalition, entered the King Amendment food-safety discussion in late October with a letter to Farm Bill conferees. The letter asks conferees to reject two proposals, including the King Amendment. The letter states that the King Amendment “is overly broad and could undermine a state’s ability to protect its citizens from foodborne illness.” But, instead of addressing the effects of farmed animal welfare on food safety, the letter pointed out that the King Amendment also prohibits imposing processing requirements on out-of-state producers.
The letter uses a simple example from California. The state “banned contaminated oysters from the Gulf of Mexico unless they are processed to eliminate deadly bacteria. This law has resulted in clear benefits for California residents. Under the King amendment, Louisiana’s law that allows the sale of unprocessed oysters would supersede California’s law and restrict California from protecting its citizens.” This example rings especially compelling this year, which has experienced particularly high levels of Vibriosis outbreaks from oyster consumption.
The group that signed this letter is an impressive coalition, including the Pew Charitable Trusts, American Public Health Association, Center for Foodborne Illness Research and Prevention, Center for Science in the Public Interest, Consumer Federation of America, Consumers Union, National Consumers League, STOP Foodborne Illness, and Trust for America’s Health.
California’s oyster-processing law is not the only state-level law that would be eliminated by the King Amendment. U.S. Rep. Jeff Denham (R-CA) testified that many states “use their state sovereignty to enact laws that protect their citizens from invasive pests, livestock diseases, maintain quality standards for dairy products, and ensure food safety and unadulterated seed products. While this list is by no means exhaustive, even a cursory look at state laws regulating agriculture reveals that laws in Illinois, Indiana, Iowa, Kentucky, Maine, Michigan, Minnesota, New York, Ohio, Pennsylvania, Vermont, Wisconsin and California, will potentially be nullified by the King Amendment.”
Genetically Engineered Food Labeling
If the King Amendment is passed with the final Farm Bill, it would preempt existing and future state-level laws requiring GE food sold in-state to be labeled as such.
No state-level law currently requires the labeling of GE foods sold within the state. Two laws — California’s Proposition 37 and Washington’s I-522 — would have required labeling of GE foods sold in-state. Both failed. Maine and Connecticut have both passed conditioned bills requiring the labeling of GE foods. They will not go into effect until four other states pass similar laws. The GE labeling bill in Vermont passed the state House of Representatives and will go to the state Senate in January 2014. A GE labeling bill passed a subcommittee in New Hampshire and will be considered by the full state House in January 2014.
It is possible that the American public’s desire to label GE foods may increase in the future. If it does, and if the King Amendment passes, state-level attempts to require labeling of GE foods will be preempted. This characteristic earned the King Amendment another nickname: the Monsanto Protection Act 2.0.
For being so short, the King Amendment has the potential to make a big impact on the future of food and agricultural law. It is worth remembering that we already have the dormant commerce clause to address state laws that frustrate interstate commerce. The executive director of the Environmental Working Group stated that the “impenetrable language” of the King Amendment “means that states would be prevented from regulating just about any agricultural product in commerce[.]” A growing number of high-profile groups are contributing more resources to defeat the King Amendment.
Rep. King has been very clear with his intentions against animal welfare. Opponents are fighting back on those grounds, but the recent letter from the Make Our Food Safe Coalition and growing pushback from other interest groups shows how far-reaching the consequences of the King Amendment will be if it is included in the final Farm Bill.© Food Safety News