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The Protect Interstate Commerce Act of 2018 (PICA) – Farm Bill Dèjá Vu?

Updated: Nov 11, 2020

By Sarah Everhart

Image of apple trees at the Western Maryland Research Center. Photo Credit Edwin Remsberg

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The U.S. Congress is attempting to pass the Farm Bill, and while many things are different in the 2018 version of the Farm Bill, some things seem to remain the same. This includes Rep. Steve King’s (R-IA) attempt to include the Protect Interstate Commerce Act (PICA) in the Bill. PICA was in the House Agriculture Committee’s version of the Farm Bill which failed to pass a vote early this month. Rep. King also unsuccessfully attempted to fold PICA into the 2014 Farm Bill.

PICA is fairly simple legislation which if passed would have a big impact on how states can regulate agricultural products. To understand PICA, it is necessary to consider the power that Congress and the States have to regulate interstate commerce. According to the Commerce Clause (Art. I, §8, cl. 3) of the U.S. Constitution, the Congress shall have the power to regulate interstate and foreign commerce. Due to this clear delegation of power to Congress, states have an implied duty to not pass laws discriminating against or excessively burdening interstate commerce (commerce between two or more states). This duty is referred to as the dormant commerce clause. To read more about the dormant commerce clause, check out this past post.

In recent years, voters in California and Massachusetts have passed laws banning the sale of agricultural products from animals raised using certain confinement systems such as battery cages for egg production and gestational crates for breeding pigs and calves raised for veal. As an aside, the California and Massachusetts laws are currently facing legal challenge brought by 13 other states who claim the laws violate the Commerce Clause. The California and Massachusetts laws are exactly the type of state laws PICA is meant to address and prevent.

PICA prevents a state from imposing a standard on the production any agricultural product (a broadly defined term) offered for sale in interstate commerce if the production occurs in another state and the standard is more restrictive than either federal law or the law of the product’s state of origin. If PICA passes, for example, since the use of battery cages for egg production is legal in many states and there is no federal law prohibiting the use of the battery cages, neither California nor Massachusetts would be permitted to pass a state law banning the sale of eggs from other states produced using battery cages. PICA also includes a right for any person or governmental entity impacted by a law regulating agricultural products in interstate commerce to bring a legal challenge in federal court.

According to Rep. King, “[s]tates do not have the Constitutional authority to regulate interstate commerce; the United States Congress does. If California, or any other state, wants to regulate how products are made within their borders, they can do so. But Iowa’s producers should not be held hostage to the demands of California’s Vegan Lobby and California’s regulatory agencies.”

Opponents of PICA, which include many industry and trade groups, express concerns over the array of things included in the term agricultural products and worry the law, if passed, could have unintended implications. To read more the opposition’s concerns, go here. It is unclear at this point if PICA will be included in future versions of the current Farm Bill, but chances are we haven’t seen the last of this legislation.

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