Ag, Interstate Commerce and Prop 12

Sen. Marshall Leads Bill to Counter Proposition 12 Ruling

Jerry Hagstrom
By  Jerry Hagstrom , DTN Political Correspondent
Sen. John Boozman, R-Ark., and Sen. Roger Marshall, R-Kansas, touring a wheat research facility earlier this spring in Manhattan, Kansas. Marshall is the lead sponsor of a bill that would stop states from dictating farm production practices to producers outside their states in response to the U.S. Supreme Court upholding California's Proposition 12. (DTN photo by Chris Clayton)

WASHINGTON (DTN) -- Reacting to the Supreme Court decision on California's Proposition 12, which says that pork sold in the state must be produced under certain conditions, Sen. Roger Marshall, R-Kan., on Thursday introduced a bill to stop states from enacting laws that affect agricultural production in other states.

Marshall's bill, called the Ending Agricultural Trade Suppression (EATS) Act, "preserves the right of states and local units of government to regulate agriculture within their jurisdiction, free from interference from other jurisdictions," his office said in a news release. The bill also blocks states from dictating production practices in other states.

Rep. Ashley Hinson, R-Iowa, will introduce a companion measure in the House at a later date, Marshall's office added.

"The United States is constantly faced with non-tariff trade barriers from protectionist countries, hurting American agriculture's access to new markets. The last thing we need is a big state like California imposing its will on ag-heavy states like Kansas with regulations that will also restrict our ability to trade among the states," Marshall said.

"This is a matter of state's rights. If California wants to regulate agriculture in its own state, that's fine, but California's rules should not apply to Kansas, whose legislatures never approved of these regulations," he said.


Earlier this week, governors from 11 Republican-led states sent a letter to congressional leaders calling on them to pass the bill. The governors were from Arkansas, Indiana, Iowa, Mississippi, Missouri, Montana, Nebraska, Nevada, Oklahoma, Texas and Virginia. The governors noted their states represent 54% of the country's pork production and 47% of cattle production. The governors pointed out California is roughly 13% of the entire pork market in the U.S.

The Supreme Court in May upheld Proposition 12 in a 5-4 ruling. The act had passed California voters with nearly 63% of the vote in 2018. The National Pork Producers Council, the American Farm Bureau Federation and other groups had challenged it in the courts.


Proposition 12 makes it a criminal offense and civil violation to sell whole pork meat in California unless the pig is born to a sow that was housed within 24 square feet of space and in conditions that allow a sow to turn around without touching an enclosure. Proposition 12 applies to any uncooked pork sold in the state, regardless of whether it was raised in California.

Marshall introduced a similar bill in 2021 titled the Exposing Agricultural Trade Suppression Act. In addition to changing the title, the new bill preserves a state's right to regulate the pre-harvest production of agricultural production within its own borders.

Marshall's co-sponsors and a range of agricultural groups have all issued supporting statements, while opponents of the measure are already mounting campaigns charging that its prospects for passage are dim and that, even if it becomes law, food companies and retailers are already demanding that producers adopt improved living conditions for animals.

Marshall's co-sponsors are Republican Sens. Chuck Grassley and Joni Ernst of Iowa, John Cornyn of Texas, Tom Cotton of Arkansas, Deb Fischer of Nebraska, Kevin Cramer of North Dakota, Eric Schmitt of Missouri and Ted Budd of North Carolina.


"We appreciate the senators for working constructively to find a legislative solution to the challenges presented by California Proposition 12. Proposition 12 will have a significant impact on pork producers and consumers across the country," said Bryan Humphries, CEO of National Pork Producers Council.

Kansas Livestock Association President Shawn Tiffany said Congress must act to ensure commerce between states involving agricultural products can continue uninterrupted.

"Beef, dairy, and pork producers in Kansas should not be forced to accommodate a patchwork of radical, unscientific state and local standards of production," Tiffany said.

Mary-Thomas Hard, chief counsel for the National Cattlemen's Beef Association, said the fractured opinion from the Supreme Court "creates a slippery slope that puts our successful interstate economy at risk, by putting complete control in the hands of our largest states. NCBA supports the EATS Act as a tool to give impacted farmers and ranchers relief from state standards that create new costs and regulatory burden."

Kansas Corn Growers Association CEO Josh Roe said, "Kansas Corn advocates for free trade and elimination of trade barriers around the world, and this act would make sure we don't encounter trade issues for our ag products within the boundaries of our own country. The EATS Act protects agricultural producers by prohibiting state and local regulations that could create trade barriers for U.S. ag products."


Last week, before the bill was released, the Organization for Competitive Markets (OCM) launched a campaign against the EATS Act on the grounds that it would be an attack on "states rights" similar to what former Rep. Steve King, R-Iowa, had launched but failed to get included in previous farm bills.

"This legislation could wipe out hundreds of laws passed by state and local legislations that benefit family farms over international conglomerates, as well as those that support dairy farmers, baby food safety, and control the infestation of invasive pests," OCM said.

"The EATS Act is nothing but a Trojan horse designed to put family farmers out of business and give multinational conglomerates like JBS and Chinese-owned Smithfield an even greater advantage than they already have," said Mike Schultz, senior vice president at OCM and founder of the Kansas Cattlemen's Association. "It's a crying shame to see my senator, Roger Marshall, leading this assault on producers and states' rights."

Wayne Pacelle, founder of Animal Wellness Action, said in an interview before Marshall released the bill and without seeing the text, that the bill is unlikely to pass Congress, but if it does it will be unimportant in comparison with the demands of food companies and retailers that pork be produced according to the standards in Proposition 12.

The pork industry is now divided, Pacelle said, with many companies having already complied with the California standards for meat production and many of them moving away from the use of the gestation crates that Californians find objectionable. "Group housing is the setting already for 40% to 50% of the six million sows in production, according to industry sources," Pacelle added.

The National Pork Producers Council "is not going to convince the public that immobilizing animals in gestation crates is humane. The elimination of the crates is inevitable," Pacelle said.

There are very few states left to consider initiatives, Pacelle said. "It's not about ballot measures any longer, it's about pledges of nearly all major food retailers (which sell more than 90% of the pork) to phase out their sourcing of pork from the offspring of severely confined sows," he explained.


But senators from meat-producing states are adamant that the proposal is needed. Grassley, representing the country's largest pork-producing state, said Congress has constitutional authority to regulate interstate commerce.

"California's Proposition 12 doesn't only impact Californians -- it has costly effects for farmers and consumers everywhere, especially in Iowa. Our free-market bill would protect opportunities for Iowa pork producers to supply their quality bacon and other products to grocery stores and households across America," Grassley said.

Fischer from Nebraska said, "State regulations like California's Proposition 12 could directly disrupt Nebraska producers' ability to feed the nation. Congress shouldn't allow any one state to single-handedly upend the country's agricultural economy and force the American people to bear the burden of higher food prices. I'm proud to co-lead this legislation so Nebraska family farmers and ranchers can continue to produce safe and affordable food for our nation without interference," Fischer said.

Budd, representing the second-leading pork state, said, "North Carolina farmers should not have their livelihoods upended by laws from other states. North Carolina, not California, should be in charge of how crops are grown and animals are raised within our state. The EATS Act upholds Congress' authority and preserves North Carolina's right to determine our own standards."

-- See EATS Act (bill)…

Also see, "At World Pork Expo, Pork Producers Still Struggling With Ramifications of Prop 12 Ruling,"…

DTN Ag Policy Editor Chris Clayton contributed to this report.

Jerry Hagstrom can be reached at

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Jerry Hagstrom