States long have had authority to regulate the health, safety, and moral aspects of goods sold within their borders, regardless of their state or country of origin. The Ending Agricultural Trade Suppression Act (“EATS Act”) fundamentally would transform the current balance of regulatory authority between the 50 States and the Federal Government by eliminating virtually all state and local legislative powers to impose standards or conditions on the “preharvest” production of agricultural products entering their own borders, including regulations related to food safety, disease and pest control, and government procurement.
The EATS Act defies basic notions of federalism and would circumvent decades of settled constitutional jurisprudence. As the Supreme Court recently reiterated in the National Pork Producers Council’s challenge to California’s Proposition 12, the Commerce Clause in the U.S. Constitution already restricts states from enacting protectionist laws that discriminate against interstate commerce. The Constitution’s Supremacy Clause also provides Congress plenary power to displace state law when
it chooses to exercise its legislative authority over private actors pursuant to its enumerated powers. The EATS Act purports to do what courts interpreting state laws against these constitutional provisions have refused to do: declare by fiat that states cannot impose public health and welfare standards for agricultural products, even in the absence of conflicting local, state, or federal laws and regulations.
The EATS Act is unconstitutional in several different ways—chiefly, by running afoul of the Tenth Amendment principle that Congress may not “commandeer” states and prohibit them from legislating to protect public health and welfare, particularly in the absence of federal regulation. The legislation also includes a broad citizen-suit provision that authorizes any person affected by a regulation governing “any
Legislative Analysis of S.2019 / H.R.4417: The “Ending Agricultural Trade Suppression Act”
3
EXECUTIVE SUMMARY

aspect of 1 or more agricultural products that are sold in interstate commerce” to bring suit to block that regulation and to seek an award of monetary damages against the state or local government enforcing the regulation. The EATS Act’s citizen-suit provision raises significant concerns related to state sovereign immunity, protected under the Eleventh Amendment.
Despite its simple appearance, the wording of the EATS Act creates a myriad of interpretive questions that would need to be resolved in the courts. Because the scope of its prohibition against any “standard or condition on the preharvest production of any agricultural products sold or offered for sale in interstate commerce” is so broad, the legislation has the potential to void over a thousand state and local laws and regulations concerning public health and safety—including many laws and regulations that have not yet been identified and are unlikely to be intended targets of the legislation. While there is significant ambiguity in the text, the EATS Act could affect everything from commercial fishing regulations to the slaughter of horses, creating cascading effects far beyond the core farm commodities it seeks to protect.
Although some producers might initially financially benefit from enactment of the EATS Act, the potential for market disruption and uncertainty is extremely high. The EATS Act could sow confusion and disorder across state legislatures, city councils, and agricultural entities, disturbing the settled expectations upon which dozens of industries rely while harming the same animal agriculture industry players that the Act’s sponsors purport to help. These same market disruptions could have significant impacts on consumer choice, animal welfare, and food safety.