Congress to vote on 2018 Farm Bill that could upend Kansas regulations

TOPEKA — The U.S. House is expected to vote, possibly as early as this week, on a new version of the federal Farm Bill that some critics say could pre-empt the ability of Kansas and other states to regulate what kinds of food products can be sold within their states.

At issue is a provision recently added to the bill known as the Protect Interstate Commerce Act, sponsored by Rep. Steve King, R-Iowa.

Essentially, it would prohibit state and local governments from blocking the sale of farm products in their jurisdictions that are imported from other states that have looser standards governing how those products are raised or produced.

That would apply to everything from beef, pork and poultry products that are raised in confined animal feeding operations and shipped across state lines, to the types of grains, fruits and vegetables that may be shipped from one state to another.

But animal rights activists, including the Humane Society of the United States, say that King’s amendment is written so broadly that it could be interpreted to go much further than that.

“Because it’s just so staggeringly broadly written, with not a lot of definitions anywhere in it, we think there could also be an argument that the amendment could affect even the in-state production of products,” Rebecca Cary, a senior staff attorney at the Humane Society in Washington, said during a phone interview Monday.

Depending on how broadly the language is interpreted, Cary said, that could affect a number of state laws and regulations in Kansas governing the varieties of crops and other plants that can be shipped into the state or even the sale of unprocessed “raw” milk, which is illegal in many states but allowable in Pennsylvania.

Humane Society officials said it could even affect the importation of pet animals raised in so-called “puppy mills” that do not comply with state animal breeding regulations.

The issue in the Farm Bill dates back to 2008, when voters in California passed a ballot initiative requiring that eggs produced in that state had to come from chickens raised in cages large enough that the birds could stand up, lie down and extend their wings fully without touching the sides of the cage.

The California Legislature later expanded that to include all eggs sold in California, according to California media reports.

That rankled the poultry industry in Iowa, the leading egg-producing state in the nation, according to the American Egg Board.

It also upset King, whose district includes a number of large-scale poultry and egg-production facilities, who called it a violation of the U.S. Constitution’s commerce clause.

“The United States Constitution grants the power to regulate interstate commerce to Congress, not to California,” he said in a recent news release.

In fact, however, the Supreme Court has for many years said that regulating agricultural shipments between states is one area in which states may interfere with interstate commerce, especially if it is done to protect the state’s natural resources and food production industry.

California in particular has for years banned the importation of certain fruits and vegetables into its territory, ostensibly to protect its own farms from certain insects or plant diseases that might come in from other states.

Several states, led by Missouri and Iowa, challenged the California law in federal court, but the case was dismissed when a federal judge said the other states did not have standing to sue. The 9th U.S. Circuit Court of Appeals upheld that ruling, and the U.S. Supreme Court declined to hear further appeals.

In December 2017, however, that same group of states filed a new case directly with the Supreme Court in the form of what is called a “bill of complaint.” That case is still waiting to be heard.

King sponsored a similar rider on the 2014 House bill, but it was later stripped out by the Senate and did not make its way into the final version of that bill.

This year, however, Democrats have said that they would not vote for the latest Farm Bill, mainly because it calls for cuts and other policy changes to the Supplemental Nutrition Assistance Program, or SNAP, the program formerly known as food stamps.

That could mean that the bill would need to pass with all Republican votes, and congressional aides have said that would be hard to accomplish if the King amendment isn’t included.

Kansas Rep. Roger Marshall, R-Great Bend, who serves on the House Agriculture Committee, said in an email statement that he supports the King amendment.

“I support the King Amendment which protects our states’ rights and makes sure that states can’t force production standards on products not made in their state,” he said. “Simply put, when we sell our goods to other states, that state cannot force their policies on our producers.”

A spokesman for 2nd District Rep. Lynn Jenkins, R-Topeka, said that she had concerns about the amendment but that she would support the bill to get it through the House.

“The Congresswoman is aware of this particular provision as it was adopted by voice vote in the Farm Bill’s committee markup on April 18 and she has her concerns regarding it,” spokesman Lee Modesitt said in an email. “However, the Congresswoman also believes our farmers and ranchers in Kansas vitally need a Farm Bill that passes this year and is concerned that without this amendment the bill may not pass the House.”

A spokeswoman for the Kansas Department of Agriculture said officials in that agency were not aware of the King amendment and declined to comment.

An official for the Kansas Farm Bureau did not immediately respond to a request for comment.


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