HSUS Plays Chicken Little in Opposing King Amendment

With the government shut down and partisan rhetoric increasingly shrill, it’s hard to see what Congress is going to get done this year. One piece of legislation in limbo is the Farm Bill. The Humane Society of the United States has been lobbying heavily against a controversial amendment, sponsored by Iowa Congressman Steve King, to the House version of the Farm Bill that seeks to ban state interference in interstate commerce. While HSUS is motivated by the implications of the King amendment for its efforts in California, HSUS CEO Wayne Pacelle broadly claims that if the King amendment passes there would be “no state laws for agricultural facilities relating to worker rights, animal welfare, environmental protection or public health.” If that doesn’t qualify for hyperbole, we don’t know what does. Let’s take a reasoned look at what the amendment actually does.

Here’s what it says:

“The government of a State or locality therein shall not impose a standard or condition on the production or manufacture of any agricultural product sold or offered for sale in interstate commerce if (1) such production or manufacture occurs in another State; and (2) the standard or condition is in addition to the standards and conditions applicable to such production or manufacture pursuant to (A) Federal law; and (B) the laws of the State and locality in which such production or manufacture occurs.”

In other words, a state can’t apply regulations to production of agricultural products that occurs in other states. It’s Constitution 101. Article 1, Section 8 makes it clear that only the federal government can regulate interstate commerce.

It’s important to analyze whether states are trying to interfere with interstate commerce by banning imports of products without justifiable cause. That doesn’t seem to be the case in most instances we look at.

HSUS claims in a handout that “the King amendment seeks to nullify state laws in Arizona, Colorado, Florida, Maine, Michigan, Ohio, Oregon, Washington, and Rhode Island dealing with intensive confinement of farm animals.” But a simple reading of the King amendment shows this to be false.

The King amendment does not apply to a state regulating agricultural production in its own state, only when a state tries to apply its regulations to another state. The laws from these nine states listed by HSUS only apply to production that occurs inside the respective state’s borders. The states do not require out-of-state producers to meet these standards.

The same thing is true of California’s Prop 2, which regulates egg production in California. But King’s amendment does take aim at California’s subsequent state law applying Prop 2 to out-of-state­ producers.

HSUS then goes on to name a bevy of laws that may—maybe, possibly, perhaps—be nullified by the King amendment.

Take HSUS’s claims that state laws on horse slaughter would be tossed aside by the King amendment. California’s Prop 6, for example, bans slaughtering horses if the meat will be used for human consumption, and bans exporting horses from the state for this purpose. Hard to see how that regulates agricultural production in other states. (Horses are currently not slaughtered in the U.S. for human consumption.)

HSUS also singles out Vermont’s ban on Bisphenol A (BPA), a chemical, in baby food jars and infant food containers. This may not be nullified at all. The Supreme Court has ruled that states can interfere in interstate commerce if it’s for reasons of legitimate public health and safety. With BPA, some sources claim that the chemical is hazardous to health. We haven’t evaluated how credible these claims are, but a court might uphold the law if the evidence is sufficient.

The same thing is true for California’s Prop 65, which requires warning labels on consumer products containing chemicals “known to the state of California” to cause cancer or birth defect. The law itself, which was poorly designed, has spawned a slew of unintended consequences and the Legislature voted to reform it this year, but the underlying principle—public health—may mean it could pass constitutional muster.

“Agricultural products” is a broad term involving not just livestock or crop production but also wine, dog breeding, honey, and so on. There are numerous state laws regulating agriculture, and numerous federal laws. But the state laws we’ve seen don’t say anything about whether the state will or will not prohibit the importation of products from other states that don’t meet the regulation. Importation is the crux of the King amendment.

For example, Colorado has a law on wine labeling for in-state producers. But the law is silent on whether Colorado will accept wine imported from other states that doesn’t meet the labeling requirement, so the King amendment wouldn’t apply to it. Same thing’s true with Texas’s regulations regarding labor training.

We could go on, but here’s the bottom line: Under the King amendment, states are free to create regulations, even onerous regulations, on businesses or activity within their borders, just as they always have. States right now are free to tax businesses up the wazoo, for example. But they can’t pass laws that are intended as forms of economic protectionism. Just as a state is free to pass regulations, a business is free to move to another state.