Language that would upend Proposition 12 and similar laws could be inserted into the House version of the next farm bill, but whether it will make it to the finish line is unclear.

RJ Layher, director of government affairs for the American Farm Bureau Federation, said last week that the federation, along with National Pork Producers Council and others, is working with Rep. Glenn “GT” Thompson’s office to insert a federal preemption of Prop 12 in the Miscellaneous title of the next farm bill.

Prop 12, which was passed by California voters in 2018, requires pork sold in the Golden State — regardless of where it is produced, to come from pigs born to a sow housed in at least a 24-square-foot pen. About 14% of all pork consumed in the U.S. is in California.

The Supreme Court upheld Prop 12 earlier this year after hearing a case brought by AFBF and NPPC, who claimed that the law violated the U.S. Constitution’s Commerce Clause. In response, the Ending Agricultural Trade Suppression (EATS) Act was introduced in Congress, which would bar states from passing laws that affect agricultural production in other states. But the proposed bill has been controversial from the start.

Supporters of it say that it fixes an attempt by the nation’s most populated state to tell farmers in other states how to raise their animals. Opponents, including more than 200 lawmakers in Congress — and many prominent pork and poultry producers, including from Pennsylvania and Ohio — are concerned that its passage would undermine markets that have opened for producers willing to make changes to their operations.

Prop 12 officially went into effect in California on July 1. However, products coming from hogs slaughtered before July 1 that have been placed in cold storage can be sold until the end of the year, Layher said. Prop 12 goes into full effect Jan. 1.

Speaking at the Pennsylvania Farm Bureau’s annual meeting, Layher said that while Prop 12 targets pork, it could easily spill into other sectors of the livestock industry.

“There is nothing stating right now that New York City, for example, can come in and say, any dairy product that's going to be consumed in New York City, it has to come from grass-fed cows,” Layher said. “They can go ahead and do that, and Prop 12 is their legal cover for that.”

It is widely expected that the 2018 Farm Bill will be extended into next year. Layher said the key to getting a Prop 12 fix in the next farm bill is bipartisan support, but right now, that’s lacking. More than 200 lawmakers have signed a letter opposing the EATS Act, and Layher said that Thompson has put a premium on bipartisanship for the next farm bill to be written.

“We have had very good conversations with ag-state Democrats that are on committee,” he said. “We’ve had some very good conversations with ag-state Democrats that are off committee, but it seems like no one wants to poke their head over the farm bill right now, but we’re still working on it.”

Packers and Stockyards rules

Layher talked about finalized and proposed rules under the Packers and Stockyards Act.

The recently finalized rule regarding transparency for contract poultry growers requires financial disclosures from integrators on things such as expected return from a contract, the health of the integrator’s breeder flock and disclosures on transfer of sale of the farm.

He also expects a final rule that addresses retaliation and deceptive practices by large-scale livestock companies to be released sometime in the first quarter of next year. The rule, he said, will address practices that large-scale livestock integrators have been criticized for in the past, such as changing terms of a deal mid-contract, refusing to adhere to terms of an original deal and preferential treatment of certain growers.

But the devil will be in the details of the final rule.

“What we didn’t like is their [USDA] definition of what a market-vulnerable individual is. They brought in civil rights lawyers to say that a market-vulnerable individual is someone who has been discriminated against in the past. We feel that we are all market-vulnerable individuals. It doesn’t matter if you’re Black, white, purple, whatever. Integrators can discriminate against one person just as easily as they can discriminate against the next,” Layher said, adding that the federation has been working with USDA to take this language out of the final rule.

A final rule regarding harm to competition under the Packers and Stockyards Act will likely come out later in 2024. This is a rule that integrators and packers do not like, Layher said, because under previous attempts to write it, anyone could file a lawsuit against an integrator based on “harm to competition,” even if they did not raise birds.

Cattle identification

Under the Trump administration, a rule came out that by January 2023 all cattle that were “intact,” over 18 months of age and being moved interstate would have to have an RFID tag for traceability purposes.

Layher said the USDA was sued and later ordered to go through the federal rulemaking process to get an RFID tag rule on the books. In December 2020, a rule on RFID was published, but one month later the Biden administration rescinded it.

Earlier this year, USDA put out an RFID tag rule that Layher said is very similar to the Trump administration’s rule, but replaced RFID with an “electronic tag,” which he said gives USDA regulatory flexibility in terms of technical advancements. Layher said that AFBF supports animal identification, but there are still things that need clarified.

A big one is carving out an exemption for so-called “commuter herds,” or cases where a producer who raises cattle along a state line and retains ownership of them can freely move them across state lines without having to tag all their animals, so long as they are moved within a certain radius — a 150-mile radius has been proposed. Layher said this is a big issue out West where some ranchers follow the drought conditions and move cattle across state lines for better grazing.

He also said AFBF is working with government appropriators to put in cost-share funding to help farmers and ranchers pay for these tags.