Force millions of farm animals back into cages

Inside the Republican effort to force millions of farm animals back into cages

Decades of progress for animal welfare are potentially at risk.

By Kenny Torrella

You may not have noticed it, but the grocery store egg aisle has increasingly been going cage-free. In 2015, just a few percent of eggs sold in the US came from hens that weren’t confined in tiny cages. Today, it’s close to 40 percent. That swift change has come in part because eight states have prohibited the sale of eggs from caged hens; some of those states have also prohibited the sale of pork and veal from cruelly confined animals.

While some cage-free conditions are far from humane, the shift in farming practices represents one of the few examples of progress in the decades-long fight against animal factory farming. Now a GOP-led bill in Congress could blow it all up.

The EATS Act, short for Ending Agricultural Trade Suppression, was introduced last month by Sen. Roger Marshall (R-KS) with a companion bill in the House from Rep. Ashley Hinson (R-IA), and would prohibit state and local governments from setting standards for how agricultural products imported from other states are produced. The bill’s language is not only sweeping, but vague, and some of its potential effects are unclear. For example, it covers the “preharvest” production of agricultural products, but “preharvest” isn’t defined.

If enacted, and if it were to survive likely court challenges, the EATS Act would open up all those cage-free laws to lawsuits, potentially erasing decades of progress for animals suffering on factory farms. The bill would also threaten other farmed animal welfare laws, like California’s and New York City’s prohibitions on the sale of foie gras, a product made by force-feeding ducks and geese. (Disclosure: Prior to Vox, I worked at animal welfare groups that advocated for cage-free laws and opposed legislation similar to the EATS Act.)

A Vermont law concerning genetically modified food provides an example as to how passage of the EATS Act could play out. The 2014 law required food producers that use genetically modified ingredients to disclose the use of the technology on their product labels, but in 2016, shortly after it went into effect, Congress passed a watered-down version of the law that preempts state law, essentially nullifying Vermont’s regulation. Vermont’s attorney general decided to stop enforcing the original law rather than defend it in court, and state attorneys general with cage-free laws might take a similar course in response to the EATS Act.

But the reach of the EATS Act could go far beyond animal cages. The bill is written so broadly that it could threaten some 1,000 other state and local laws and regulations that govern agriculture, from timber to beef to crops, according to Kelley McGill, a regulatory policy fellow at Harvard Law School’s Animal Law and Policy Program. It may even block state prohibitions on certain recreational drugs, like salvia and kratom, that aren’t federally banned.

“The scope is really, really broad — it could encompass basically anything raised on a farm,” McGill said. “Crops, livestock, but also potentially cats and dogs, exotic animals. It could also be said to include products that include just small amounts of crops — for example, medicines that include cornstarch as an ingredient.”

The bill also gives anyone affected by a regulation the opportunity to sue to block its enforcement, and makes it easier to win a preliminary injunction by putting the burden on the state or local government — not the litigant — to prove it could likely win at trial, reversing the standard of how preliminary injunctions typically work, McGill said.

While the sponsors of the EATS Act have one goal — to undo cage-free laws and prevent states from passing more — most agricultural laws have nothing to do with moral positions like whether it’s okay or not to confine an animal in a tiny cage. Rather, many are intended to protect consumers and farmers by improving food safety and preventing the spread of disease from livestock and plants across state lines.

Congressional Republicans have been trying to pass some iteration of the EATS Act since 2013 as a countermeasure against the growing number of states and food corporations phasing out cages. This year’s version was introduced just weeks after the Supreme Court ruled in May to uphold California’s cage-free law, Proposition 12, which the pork industry had challenged in the courts for years. The case centered on the pork component of the law, which requires that female breeding pigs, or sows, are given at least 24 square feet of space. Currently, most sows are confined in what are called gestation crates, which are so narrow the pigs can’t turn around for virtually their entire lives.

Marshall’s office didn’t respond to an interview request for this story. Hinson’s office declined an interview request and declined to answer specific questions on the record about the bill, but sent a quote that reads in part: “Prop 12 allows liberal lawmakers and radical activists in California — who don’t know the first thing about farming or raising animals — to regulate how Iowa farmers do their job, devastating small family farms and making food more expensive.”

“My EATS Act will ensure Iowa farmers can continue to feed the nation and protect interstate commerce,” Hinson added.

After losing in the highest court, pork producers are now pushing for the EATS Act, hoping it will free them from having to comply with Prop 12. The bill is opposed by a coalition of groups that advocate for independent farmers, animals, and state and local governments, and who worry it could be snuck into this year’s farm bill.

The origin of the EATS Act, and the chance of it actually becoming law

The EATS Act can be traced back to one of America’s most controversial politicians: former Iowa Republican Rep. Steve King. King was best known for his far-right views and outlandish racist remarks, ranging from the belief that whites contribute more to civilization than non-whites and that culture-mixing will lead to a lower quality of life, to wondering out loud how terms like “white supremacist” and “white nationalist” had become offensive.

He also had a lot of egg-producing factory farms in his district that wanted to keep locking hens in tiny cages. So, King went to bat for them.

In 2014 and 2018, he managed to get an amendment almost identical to the EATS Act in the House versions of the farm bill, which is passed every five years; a large majority of the bill’s spending goes to fund SNAP benefits, also known as food stamps. Ultimately, neither amendment made it into the final version of the bill.

But according to Jake Davis, a Missouri hog farmer and farm policy consultant advising advocacy groups that oppose the bill, EATS Act supporters have a better shot to get it in this year’s farm bill than when King was in office.

For one, the powerful meat lobby — after its defeat at the Supreme Court — is especially fired up. “The National Pork Producers and the American Farm Bureau Federation and their state affiliates are all making a full-court press for the EATS Act,” Davis said. “In my opinion, they are now seeing that [Supreme Court] ruling as sort of an affront to their way of doing business, and there is a lot of motivation ... to getting it in the [farm] bill. And you’re seeing politicians reflect that advocacy.”

Neither organization responded to Vox’s request for comment on the bill.

Davis pointed to the House Agriculture Committee chair Rep. Glenn “GT” Thompson (R-PA), a key player in farm bill negotiations who’s already publicly voiced support for the EATS Act, something previous agriculture committee chairs didn’t do for King’s bill, Davis said.

“When the chair of the House [agriculture committee] says that they are in favor of it sort of very openly, I think it’s probably a good chance that it ends up in the base text of the bill,” Davis added, meaning the first draft of the House’s version of the farm bill, which has a September 30 deadline for passage (though that deadline could be extended).

According to Davis, however, it will still be an uphill battle for the EATS Act to make it into the final farm bill, in part because a lot of members of Congress are already on record opposing Steve King’s amendment in previous farm bill negotiations. But he said the EATS Act has a better chance than previous efforts, for several reasons.

For one, Hinson and Marshall don’t have the baggage King did. In the weeks before the passage of the 2018 farm bill, King lost support from the National Republican Congressional Committee and some corporate donors after refusing to say whether or not he identified as a white supremacist (anger from Republican leaders reached a boiling point weeks after the farm bill passed and he was stripped of committee assignments).

Hinson’s bill also has much more support — 23 cosponsors to King’s two in 2018 — and Davis said supporters of the EATS Act appear to be more vocal about their support than they were of King’s amendment, especially in the wake of the Supreme Court’s decision to uphold California’s Prop 12 law.

The unintended consequences of upending agricultural law

The bill has also received support from governors of 11 red states, but the short-term gain of dismantling cage-free laws could come with buyer’s remorse, as it would open up state laws critical to livestock and plant disease prevention to legal challenge.

The US is currently experiencing its worst outbreak of the highly pathogenic bird flu, which has resulted in the death or killing of nearly 60 million farmed birds since late 2021, ravaging the poultry industry (the 2015 outbreak caused $3.3 billion in losses to the industry, and this one is worse). Rightfully so, Iowa law prohibits people from moving birds exposed to infectious diseases into Iowa unless approved by a veterinarian and requires trucks transporting livestock to be cleaned and disinfected. Those laws could be prohibited under the EATS Act.

There are also a number of laws around the country that set standards on milk quality, fish sourcing, and beekeeping that could be vulnerable to legal challenge.

Taylor Haynes, a conservative cattle rancher who ran for governor of Wyoming as a Republican and serves as the board president of the Organization for Competitive Markets (OCM), a group that advocates against monopolization in agriculture, is worried the EATS Act could wrest too much control from state and local governments. And he’s confused as to why the GOP, ostensibly the party of states’ rights, is advocating for it.

“It’s a little embarrassing that Republicans are leading this,” Haynes said. “Moreso, it’s confusing. It’s quite confusing.”

Some conservatives, along with OCM’s lobbying arm, have even fueled anti-Chinese sentiment, framing the EATS Act as a gift to China. America’s largest pork producer, Smithfield Foods, is Chinese-owned and has said Prop 12 could force it out of business in California (though ultimately it said it will comply with the law).

Conservatives like Haynes also say the bill is constitutionally suspect, as do legal experts. McGill, the Harvard Law fellow, said it could violate the Constitution under the anti-commandeering doctrine, which is based in the 10th Amendment and prohibits Congress from directly compelling or forbidding state action.

In an email to Vox, Laurence Tribe, a leading constitutional law scholar and emeritus constitutional law professor at Harvard University, also questioned the bills’ constitutionality: “Congress has wide latitude to regulate or not regulate agricultural practices, but one thing it has no power to do under our federal system is command States and Localities not to regulate those practices in their effort to protect the health of their residents and prevent inhumane treatment of the animals that their residents purchase and consume.”

The EATS Act could hinder some farmers in the long run

Large pork producers have fought against measures like California’s Prop 12 because it raises the cost of doing business, with one estimate projecting $294 million to $348 million in compliance costs for the industry. But many pork producers — both large companies and independent farming contractors — have already begun to build new crate-free facilities or convert existing barns.

The egg industry, according to trade group United Egg Producers, has already invested $3 billion to $4 billion in its cage-free transition. The EATS Act could suddenly devalue all that investment, slashing the premium producers might make from raising animals compliant with certain state laws. It also creates more uncertainty for producers thinking of changing their practices amid a shifting legal and corporate landscape for animal welfare.

“As you start to see these challenges and these pauses in this progress toward cage-free, it creates a little bit of uncertainty, obviously, in industry, as to what the path forward is,” said Brian Moscogiuri, a global trade strategist at Eggs Unlimited, an egg brokerage company. “It’s kind of like red light, green light.”

“I think we’re at that stage where there’s been enough of the [pork] industry that have made those [crate-free] investments that they obviously want to be able to capitalize on those investments for some time,” ​​said a pork industry insider who wished to remain anonymous due to the sensitive nature of the issue. “The expression that I’ve used with some people in the industry is that I feel like, at least with Prop 12, the train has left the station, or Pandora’s out of the box and it’s kind of hard to put her back in.”

If passed, that devaluing could hit home for key players in the farm bill. One of the pork companies more proactive in converting its barns to crate-free, Clemens Food Group, has an operation in Thompson’s district. The largest egg producer in Michigan, which is represented by Senate Agriculture Committee chair Debbie Stabenow, has invested $100 million in a cage-free operation in Pennsylvania. Neither office responded to a request for comment.

The fight for animal welfare, like any other social movement, is one for which progress has always come with setbacks. After years of high-profile undercover investigations that exposed and, in some cases, helped to change some inhumane farming practices, the meat industry successfully lobbied for legislation that simply made it illegal to film on farms. (Most of these have since been struck down as unconstitutional.)

Similarly, ever since states began banning cages, the industry has fiercely opposed such laws. The EATS Act, despite its innocuous acronym and concise text, puts on display the depravity of intensive animal agriculture and its political might: To maintain the right to cage animals so tightly they can barely move, nearly 40 Republican members of Congress are willing to trade away a critical right of state and local governments.