China, the EATS Act, and the Attempt to Erode American Democracy

The ink wasn’t dry on the U.S. Supreme Court ruling upholding California’s Proposition 12 as constitutional when several lawmakers in Congress proclaimed that they’d soon introduce legislation to overturn a ballot initiative passed by the people in our nation’s biggest state.

Their legislative vehicle, dubbed the EATS Act, would “nullify any state or local law that places any kind of standard, regardless of its impact, on agricultural exchange, whether grounded on concerns about animal welfare, food safety, chemicals, agricultural pests, or worker safety,” concluded Scott Edwards, general counsel for the Center for a Humane Economy and Animal Wellness Action.

H.R. 4417 and S. 2019 — the House and Senate versions of the EATS Act — deviate little from the measure championed a decade ago by former Iowa Congressman Steve King and debated during consideration of the 2014 and 2018 Farm Bills. The King amendment was jettisoned, in the end, from both bills, thanks to opposition from the long-time top Democrat on the Agriculture Committee, Michigan’s Debbie Stabenow.

But it’s back now, with a new name and a sharper pair of targets in the form of Prop 12 and a very similar measure Massachusetts voters passed two years earlier.

“California seeks to impose regulations targeting farming practices outside its borders that would stifle interstate and international commerce,” said Terry Wolters, president of the National Pork Producers (NPCC), in March 2022. “NPPC has poured a lot of blood, sweat and tears into preserving the rights of America’s pork producers to raise hogs in a way that’s best for their animals’ well-being and that allows them to continue selling pork to all consumers, both here and internationally.”

Indeed, NPPC has worked hard, but mainly to thwart any legislative progress to benefit farm animals, whether at the state or federal level. Its most successful maneuver in the latter domain was its torpedoing of an accord in 2011 between animal welfare groups and the United Egg Producers that had been the first serious attempt to establish any federal farm animal welfare standards backed by a key agricultural group — in that case, providing some minimal living space and other husbandry standards for laying hens.

Prop 12 Has Withstood All Pork Industry Assaults — So Far

After the NPPC and its partners filed, and then lost, 11 straight cases in U.S. district courts and appellate courts challenging Prop 12 and two related animal welfare laws, the Supreme Court agreed to hear pleadings on the matter. When the high court granted review, the plaintiffs were bullish that finally a court with a conservative super-majority would declare Prop 12 constitutionally defective because, they alleged, it impeded interstate commerce in a staple on the American plate.

After a torrent of briefs on both sides of the legal divide, the Supreme Court was having none of it. Justice Neil Gorsuch writing on behalf of a majority in NPPC v. Ross that included Justices Clarence Thomas, Elena Kagan, Sonja Sotomayor, and Amy Coney Barrett, methodically dismissed every argument of the plaintiffs.

“[NPPC] invite[s] us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders,” Gorsuch wrote. “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.”

That loss stung the pork industry as much as it elated animal advocates and more humane-minded farming groups. But as is its wont, the NPPC didn’t waste a minute in switching venues. It demanded redress from Congress. With the House and Senate Agriculture committees stacked with lawmakers from farm states, NPPC’s intention is to jam the EATS Act into the Farm Bill before the year is up, gutting the implementation of Prop 12 and Amendment 3 in Massachusetts right out of the chute.

China Puts a Giant Stake in the Ground When it Comes to U.S.-Based Pork Production

While the NPPC is based in Des Moines, its biggest and best-known member is a long way off from Iowa.

That player is Smithfield Foods, with headquarters officially listed in the southern Virginia town that is the company’s namesake. Through its company-owned pig operations and its contract producers scattered across multiples states, Smithfield produces one in six piglets in the United States. It controls the lives of a million of America’s six million breeding sows — or about 16 percent of production.

That’s a hefty share of the pig production market. Tesla, by way of comparison as the automobile company with the biggest market capitalization, sells just about 4 percent of the cars sold in the United States and Canada.

But the listing of Smithfield headquarters in Virginia is more a feint than a fact.

The Shuanghui Group, better known as the WH Group, purchased Smithfield Foods for $4.72 billion. 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. Smithfield has 146,000 acres of land, making the Chinese company also one of the largest overseas owners of American farmland.

When the WH Group took over Smithfield in that multibillion-dollar sale in 2013, it was taking over a company that had publicly pledged in 2007 to phase out its gestation-crate systems within a decade.

But Smithfield’s conversion to a crate-free future veered off course after the Chinese government took over the company. By 2017 — the year the company had originally pledged to extract itself from crated-sow production — it had done away with this extreme confinement for only 10 to 12 of the 16 weeks that the sows are pregnant. And it hadn’t completed that transition away from crates for its contract growers.

And off the farm, it wasn’t behaving like it was any kind of critic of crates. In 2016, when Massachusetts voters were considering a measure to phase out sales of pork from crated sows across the state, no matter where production occurred, the NPPC and Smithfield urged voters to turn it down.

In the end, the pork-industry pleas fell flat. Bay State voters, in a landslide vote of 78-22 percent, said the pigs should be offered room to move.

Then, just two years later, with a nearly identical measure, voters ushered Prop 12 into statute. There, too, Big Pork trotted out its arguments about “skyrocketing pork prices” and “pork shortages,” but its communications efforts persuaded just more than a third of voters that three years of harsh confinement in a metal box was an acceptable animal-housing strategy.

That was political landslide number two.

A Thinly Veiled Maneuver by a Foreign-Influenced Industry to Overturn American Elections

It is an outrageous thought for Congress to nullify ballot measures that are expressions of popular will. In this case, it’s even more glaring and galling than that. It’s the pork industry trade association, with a Des Moines address but with the support of the Chinese government, seeking to undo American elections.

Of course, in its lobbying blitz, there’ll be no mention from NPPC about its biggest member being owned by the Chinese government.

Rather, its strategy is to attack California, which happens to be the U.S. biggest agricultural state producer by a long shot.

The NPPC argues that California and its new law poses an existential risk to the entire $26 billion-dollar hybridized Sino-U.S. pork industry. If Congress doesn’t undo the damage, according to the NPCC, it’s curtains for pork producers.

One problem for them is that verified pleadings filed in NPPC v. Ross established that some of the major U.S.-owned pork producers, including Tyson’s, Hormel, Clemens Group, and others have sufficient production to supply the California and Massachusetts markets right now.

More broadly, there are thousands of pig producers throughout the country — not just in the 11 states where Americans and their elected state lawmakers have voted to ban gestation crates — who actually made good on promises and disassembled their gestation-crate confinement systems and produce sows in group-housing arrangements. The new sales standards in California and Massachusetts are market opportunities for these pig producers.

According to NPPC itself, now more than 40 percent of all breeding sows are already living in group-housing systems. China, Mexico, and the other 120 foreign nations that buy a third of all pork produced in the U.S. don’t care at all about humane treatment standards. That means that there’s plenty of crate-free pork left for the two states and the growing number of American food retailers that want more humanely raised pigs. California and Massachusetts collectively consume just 10 percent of all U.S.-produced pork.

The consumer-driven transition away from crate confinement has been in motion since Florida passed the nation’s first statewide ban on gestation crates in 2002. And it’s accelerated in the last decade with 60 major food companies — nearly every big name in food retail, including McDonald’s, Costco, and Kroger — announcing policies opposing gestation-crate confinement.

The bottom line: There are just 2 states with sales restrictions on pork from extreme confinement systems, and 48 states and 122 nations without any such sales standards. In short, 170 of 172 states and counties that consume U.S. pork have no humane treatment standards when it comes to sale of pork in their jurisdictions.

It’s basic math: 10 percent (Calif. and Mass. markets) is less than 40 percent (percentage of sows already living in group housing). It turns out that the pig industry is hardly monolithic when it comes to sow housing.

On its face, the EATS Act amounts to an intrusive federal overreach in agriculture policy in America and an attack on states’ rights. And it has much more than a taint of collusion with the Chinese government.

In China, there are no animal welfare standards. There are no free and fair elections. There’s no tradition of civil society or non-profit advocacy and cultural attention to animal welfare. It is a nation whose demand for ivory nearly wiped out the elephants, where millions of dogs and cats still end up on dinner plates, and whose medical treatments include elixirs made from rhino horns and bear bile. And it’s a nation whose government — the same people overseeing Smithfield — are building high-rise factory farms for pigs.

Why would we think Chinese-controlled, U.S.-branded agricultural companies with a stake in the ground in our homeland would act one way at home and another way here in America?

Congress has a solemn duty to honor the judgment of American voters. It should have nothing to do with China’s strategic efforts to exert increasing control over American agriculture. 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.

Take Action: Contact your federal lawmakers and urge them to oppose the EATS Act, S. 2019 and H.R. 4417.