On August 5, 2021, Senate Republicans introduced the Exposing Agricultural Trade Suppression (EATS) Act, which aims to “prevent States and local jurisdictions from interfering with the production and distribution of agricultural products in interstate commerce.” The EATS Act would grant a private right of action allowing affected persons to seek an injunction against any state or local regulation that imposes a production or manufacturing standard on agricultural products that is more restrictive than a standard at the federal level.

The EATS Act is intended to invalidate California’s Proposition 12. As we have previously blogged, Proposition 12 establishes minimum confinement standards for certain farm animals and bans the sale of food products from animals that are not raised in compliance with the standards, which subjects out-of-state food manufacturers selling products into California to Proposition 12.

Introduction of the EATS Act comes in the wake of unsuccessful legal challenges to the constitutionality of Proposition 12.  In July 2021, the 9^th Circuit Court of Appeals affirmed the dismissal of a lawsuit filed by the National Pork Producers and American Farm Bureau Federation, which alleged that Proposition 12 violated the Commerce Clause of the Constitution by placing an undue burden on interstate commerce.  A similar challenge to Proposition 12 filed by the North American Meat Institute also ended unsuccessfully earlier this summer.

Despite implementing regulations not having been introduced until mid-2021, several Proposition 12 requirements are already in effect as of January 1, 2020, while others (e.g., standards for breeding pigs), will not go into effect until January 1, 2022. Keller and Heckman will monitor and report on any updates to the EATS Act and Proposition 12.