·  Legal News, Analysis, & Commentary

News & Politics

Effort in Congress to Overturn Prop 12 Eats at American Democracy and Values

— February 8, 2024

A legislative maneuver to overturn free and fair American elections, the EATS Act puts at risk more than a thousand agricultural businesses supplying California with pork and eggs.

“Our farm and other Texas family-owned farms and ranches have geared up our production to meet the new and exciting market demand for our products in California,” wrote Neil Dudley, a vice president of Pederson’s Farms in central Texas, in December letters to U.S. Senators Ted Cruz and John Cornyn and to U.S. Representative John Carter. “We often compete against foreign-owned (including China-owned) agribusiness corporations. California’s standards help farms like ours compete on a more level playing field against these foreign conglomerates.”

Mr. Dudley’s farm raises pigs, and the “exciting market demand” in California stems from the decision by voters six years ago to pass Prop 12 to promote more humane treatment of breeding sows and other animals. In fact, 10 years before deciding Prop 12, voters in California passed Prop 2 to stipulate that breeding sows, veal calves, and laying hens raised in the state had to be provided with sufficient space “to stand up, lie down, turn around, and freely extend their limbs.” Prop 12 augmented the space allotments and added a sales standard, too: any fresh cuts of pork in the state, or eggs or veal cuts, must come from farms, whether in California or not, that give the animals enough space to move.

The team at Pederson’s Farms saw Prop 12 not as a political threat, but as a market opportunity. Pederson’s and hundreds of other producers—including the Pennsylvania-based Clemons Group, the Minnesota-based Hormel Foods, and even conventional players like Tyson Foods—recognized that more humane treatment of animals on the farm was an unyielding ideal in American culture. For years, they had been investing—collectively in the billions of dollars—in new housing systems to meet evolving demand.

The harbingers of change were hard to miss: 1) a series of double-digit wins for animals at the ballot box from Arizona and California to Florida and Massachusetts, and 2) 60 announcements from the likes of McDonald’s, Costco, Walmart, and other food retailers and restaurants indicating opposition to the use of gestation crates.

Pork Trade Groups Fight to Preserve Unpopular, Inhumane Forms of Confinement

The National Pork Producers Council (NPPC) hasn’t seemed to give weight to the wishes of thousands of pig farmers who never relied on gestation crates, or the thousands of others who dismantled them in favor of more humane housing.

Incensed first by landslide passage of Prop 2 in 2008 and then by a similarly lopsided vote on Prop 12 a decade later, the NPPC and the American Farm Bureau Federation went on a litigation binge to try to overturn the humane-treatment laws. Those serial lawsuits had the effect of delaying implementation of Prop 12 for an additional two years, along with creating uncertainty for the many farmers who’d made the biggest bets on an evolving marketplace. In the end, the legal fight landed on the marble steps of the U.S. Supreme Court.

In May, the high court ruled in favor of California and animal protection groups like Animal Wellness Action and the Center for a Humane Economy that argued that Prop 12, by promoting food safety and animal welfare in a non-protectionist manner, exerted authority guaranteed to the state by the U.S. Constitution. Writing for the majority, conservative Justice Neil Gorsuch noted that the NPPC and other plaintiffs “invite us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

After these exasperating delays that frustrated the will of the California electorate, Prop 12 finally took full effect on January 1, 2024. In the run-up to that date, California had been certifying farms in the state and across the nation eager to meet the new animal-housing standards. According to the California Department of Food and Agriculture, there are now more than 1,250 agricultural producers and distributors in compliance with Prop 12 and prepared to meet the demand of California for cage-free eggs and crate-free pork. That number will swell over time.

The EATS Act Is a Sword and Not a Shield to American Farmers

The NPPC had been racing to block implementation, and its Hail Mary maneuver was the pivot to Congress and the introduction of the Exposing Agriculture Trade Suppression (EATS) Act, which would nullify any state laws placing any kind of limits on agricultural trade.

“The EATS Act—and other iterations of it—would wipe out state laws that have been in place for years, thereby both removing markets for our farms and disrupting the regulatory ‘certainty’ that farmers and food purveyors crave to provide affordable and consistent food,” added Mr. Dudley of Pederson’s Farms. “It also bans Texas and any other states from passing agricultural laws that make sense to their farms.”

In support of EATS, the pork industry has been doing its best to manufacture a crisis, falsely claiming that farmers will go out of business because of Prop 12. The flip side is much closer to the truth. Farmers like those working at Pederson Farms were at risk with the delays in Prop 12 implementation and the prospect of investing millions to comply with the law only to see the law struck down by the courts or overturned by Congress. And if you want a roster of the companies at risk, start with the more than 1,000 businesses supplying California’s market with pork and eggs. Then add in the businesses supplying Massachusetts, which has a similar law, and then the businesses stocking shelves in eight more states with sales requirements for cage-free eggs. In the end, thousands of businesses supply these markets and depend on that revenue to stay afloat.

The introduction of the EATS Act was really about the ideology of the industrialized pig industry, rather than about any practical concern about the ability of the industry to supply the states with stronger animal-welfare policies. More than a decade ago, NPPC communications director Dave Warner summed up the disregard for animal welfare in a comment to the National Journal: “So our animals can’t turn around for the 2.5 years that they are in the stalls producing piglets. I don’t know who asked the sow if she wanted to turn around… .” Prop 12 never was about forcing conventional farmers in Iowa or North Carolina to change their housing systems, because they had ample markets for the product elsewhere.

EATS Act Is China’s Best Hope for Controlling U.S. Pork Supply

It’s also hard not to see foreign influence in the maneuvers of the NPPC, given that upwards of 40 percent of the U.S. pork industry is foreign owned. The Brazil-based JBS controls a remarkable 14 percent of the U.S. pork sector. But the biggest player by a long shot, with a 26 percent share of U.S.-based production, is Smithfield Foods. The Shuanghui Group, better known as the WH Group, purchased Smithfield Foods for $4.72 billion in 2013. It was, at the time, the largest-ever Chinese acquisition of an American company. It also made the WH Group one of America’s largest landowners, with 146,000 acres of land in our homeland.

China's flag; image by Alejandro Luengo, via
China’s flag; image by Alejandro Luengo, via

A single Chinese-owned company controlling more than a quarter of a major U.S. sector seems like an obvious point of vulnerability for our country. And when it comes to animal welfare, China takes mistreatment of animals to new highs. In fact, the new mode of pig housing is the high-rise factory farm, with the pig houses standing 29 stories tall and the pigs trapped within the concrete walls and floors of these monstrosities. China has vividly delivered to the world a dystopian vision of 21st-century agriculture that makes the American factory farm look like a medium-grade privation. It’s pork “production” rather than pig “farming,” reducing the animals at the center of the enterprise to meat machines devoid of needs beyond food and water.

And let’s understand that this kind of highly intensive confinement is at odds with trends in American agriculture. Since I worked on the first ballot measure to ban gestation-crate confinement in Florida in 2002, the United States has been transitioning away from gestation crates for more than two decades. Today perhaps 45 percent of all breeding sows are already living in group-housing systems. And it’s accelerated not only with the movement of the markets in California and Massachusetts, but also with the many major food retailers making progress toward their anti-gestation-crate pledges.

In the heterodox marketplace that now exists, conventional pig farmers still have extraordinary market opportunities and access. China, Mexico, and many of the other 120 foreign nations that buy a third of all pork produced in the United States haven’t adopted humane treatment standards for farm animals. And 48 U.S. states place no sales barriers in the way when it comes to pork from intensive confinement, other than the free choices companies are making to source gestation-crate-free pork because those purchasing practices are better aligned with the values of their customers.

market analysis by the Center for a Humane Economy concluded that California and Massachusetts need just 6 percent of U.S.-produced pork to meet demand established by their state laws. (Prop 12 and Question 3 only apply to fresh cuts of pork and not to frozen pork or combined products like pork and beans or TV dinners.) And since 45 percent of American pork production is already gestation-crate-free, only basic math is required to determine that existing pig-production capacity is available right now to supply the two states. No farmers need to change a thing to meet pork demand in California and Massachusetts. The pig industry is hardly monolithic when it comes to sow housing.

It’s Not Congress’ Role to Stymie Humane Treatment of Farm Animals 

On its face, the EATS Act amounts to an intrusive federal overreach in agriculture policy. It is a policy proposal whose Republican authors seem to disregard that conservative justices were at the core of a high court ruling deeming Prop 12 constitutional. It is a measure that disregards a long history of American concern for the humane treatment of animals, including animals raised for food, and seeks to nullify laws that won the favor of supermajorities of Americans.

There is a lot of tough talk among some farm-state lawmakers about China, but it’s hollow rhetoric when not applied in practical ways. Congress is threatening to wipe away American farm animal welfare laws, and it’s a Chinese company that stands to benefit the most from that action. Indeed, why would we think Chinese-controlled agricultural companies with such an enormous footprint in our homeland would act one way in the People’s Republic and differently here in America?

Congress has a solemn duty to honor the judgment of American voters, including when these elections involve animal welfare. It should not give a lift to legislation that allows China to strengthen its hold on America’s pork supply and export its production practices. The Chinese Communist Party, the ruling and only political party in the country, is no friend of America, America’s food security, or our American values related to the treatment of animals.


Animal Wellness Action is a Washington, D.C.-based 501(c)(4) whose mission is to help animals by promoting laws and regulations at federal, state and local levels that forbid cruelty to all animals. The group also works to enforce existing anti-cruelty and wildlife protection laws. Animal Wellness Action believes helping animals helps us all. X: @AWAction_News

The Center for a Humane Economy is a Washington, D.C.-based 501(c)(3) whose mission is to help animals by helping forge a more humane economic order. The first organization of its kind in the animal protection movement, the Center encourages businesses to honor their social responsibilities in a culture where consumers, investors, and other key stakeholders abhor cruelty and the degradation of the environment and embrace innovation as a means of eliminating both. The Center believes helping animals helps us all. X: @TheHumaneCenter

LegalReader thanks Center for a Humane Economy for permission to republish this piece. The original is found here.

Join the conversation!