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The King amendment to the Farm Bill threatens state’s rights

Commentary by Laura Sesana
for Washington Times

Posted 10/11/2013

WASHINGTON, September 28, 2013—In an unusual show of bipartisan agreement, a large coalition of congressmen has come together to oppose a provision known as the King Amendment. Slipped into the House version of the Farm Bill, this short but powerful piece of legislation is threatening dozens of state laws enacted to protect the health and welfare of citizens.

Formally known as the Protect Interstate Commerce Act, the provision authored by Iowa Representative Steve King prevents states from imposing standards or conditions on agricultural products produced out of state.

The King amendment could have far-reaching implications, nullifying a large spectrum of state and local laws concerning everything from livestock welfare to GMO labeling, restrictions on pesticide and antibiotic use, horse slaughter, child labor, fire safe cigarettes, shark finning, Christmas trees, and even the sale of cat and dog meat.

The Senate’s version of the Farm Bill does not contain a similar provision and as Congress gets ready to hammer out a final version of the Farm Bill before the September 30 deadline, the King amendment may prove to be a major hurdle.

Added to the House version of the Farm Bill by voice vote and subjected to little debate, neither the King Amendment nor any provision like it has ever been subject to formal hearings or discussion in either house of Congress.

Given its broad language, sweeping implications, and the fact that it has not been submitted to a thorough hearing process to understand its reach and implications, the King amendment has drawn opposition on both sides of the isle.

15 Republican Representatives recently signed a letter to the Chairman of the House Committee on Agriculture expressing their concerns that the provision was too broadly written and had the potential to render state agricultural policies powerless. A similar letter signed by 152 Democratic Representatives expresses similar concerns. Twenty-three members of the U.S. Senate have also signed on to a letter to the Senate Agricultural Committee expressing the same apprehensions.

Representative King, however, insists that the provision is narrow, targeted mainly at invalidating California Proposition 2, requiring cages large enough to allow egg-laying hens to stand and spread their wings if their eggs are to be sold within the state.

Should the Farm Bill pass with the King amendment included, this and dozens of other laws would be preempted.

The text of the amendment reads as follows:

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.

Given the broad definition given to agricultural products in 7 U.S.C. 1626, the breadth and reach of the amendment could have several serious and unexplored consequences.

The specter of such consequences has generated a broad coalition of over 80 interest groups including the Consumer Federation of America, Natural Resources Defense Council, Organic Consumers Association, Pew Charitable Trusts, Union of Concerned Scientists, and Humane Society of the United States, united to oppose Representative King’s provision.

For example, the National Fallen Firefighters Foundation and the National Association of State Fire marshals are both against the King amendment because since tobacco is considered an agricultural product, the provision could nullify the fire safe cigarette laws already on the books in 50 states and the District of Columbia. 

Consumer groups oppose the King amendment because it threatens a state’s ability to require labeling of products treated with dangerous pesticides; products that contain chemicals known to cause cancer, birth defects, or other reproductive harm; and genetically modified foods (GM).

The provision would also threaten a state’s agricultural employment laws including child labor laws, inspections, and certification standards. Additionally the amendment could nullify state health and safety standards for agricultural employees concerning pesticide exposure, the use of dangerous farm machinery, field sanitation, and respiratory hazards.

As far as animal welfare, the provision would eliminate laws restricting intensive livestock confinement, horse slaughter, the sale of dog and cat meat, foie gras production, and shark finning.

Described as “narrow” by Representative King, the amendment is broad enough to take away a state’s right to set pollution standards like prohibitions on spraying sewage on crops directly before they are sold for human consumption, guidelines for wastewater discharge. 

At best the amendment could create worse living conditions for egg-laying hens, Representative King’s stated targets; at worst it could usurp a state’s right to legislate for the health and welfare of its citizens.

Representative King’s provision could ultimately force all states to accept the quality, safety, and environmental standards of any state no matter how unsafe, dangerous or inhumane.

“The King amendment seeks to trigger a race to the bottom, forcing states to allow commerce in products they have banned,” states a joint letter in opposition to the King Amendment signed by the coalition mentioned above. “As the Supreme Court has made clear, the Commerce Clause allows Congress to regulate commerce; it doesn’t give Congress the authority to mandate its creation, nor to require citizens to participate in commerce they find objectionable.”

Litigation on the amendment, should it to become law as part of the Farm Bill, is likely to be complex and expensive, leading to years of regulatory uncertainty, stifling economic growth and limiting business.

 “The amendment seeks to put each state at the mercy of any other state whose legislature has a differing view about the public health, safety, or welfare associated with a product,” states the Humane Society factsheet. “If any one state in the union tolerates the production or sale of a particular agricultural product, no matter how offensive or threatening to the public interest, then the other 49 must do so as well.”

The amendment is in step with Representative King’s previous record.

Opposing virtually every regulation related to animal welfare, King has combated federal laws against animal fighting, shark finning, horse slaughter, the trade in primates as pets, and even a law preventing parents from bringing children to dog fights. In the aftermath of Hurricane Katrina, King voiced his opposition to a federal policy to help pets in disasters.

With the September 30 deadline looming, it is unclear whether Congress will be able to come to an agreement in time, especially with King’s divisive amendment as part of the House version of the bill.

 “With the Farm Bill having so many controversial elements, the whole package may break apart if the King amendment is retained in any form,” Wayne Pacelle, President and CEO of The Humane Society of the United States, told Communities Friday. “It is a radical attack on states’ rights.”

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