Outdated regulations are hampering the beef meat industry.
Written by Baylen Linniken. Originally published May 19, 2018, by Reason.com online magazine. Baylen Linnekin is a food lawyer, scholar, and adjunct law professor. He’s the author of Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable (Island Press 2016). Linnekin serves on the board of directors of the Farm-to-Consumer Legal Defense Fund.
Last week, Sens. Mike Rounds (R-N.D.), John Thune (R-S.D.), and Angus King (I-Maine) introduced a bill that would allow meat processed in many state-inspected slaughterhouses and other state-inspected facilities to be sold across state lines.
The sensible bill, dubbed the New Markets for State-Inspected Meat and Poultry Act, could be a real boon to livestock farmers who want to sell their meat and meat products in neighboring states, and to the consumers who want their products.
Before you get your hopes up, though, consider that this under-the-radar, bipartisan bill has been around in some form or other for more than fifteen years. Then-Sen. Tom Daschle (D-SD) introduced similar legislation in 2000. Then-U.S. Representative (now Senator) Roy Blunt (R-Mo.) sponsored a version of the bill in 2006. A year later, then-Rep. Earl Pomeroy (D-ND) introduced the bill.
Yet the ban on interstate sales persists. That’s despite the fact it’s got broad support.
“The New Markets for State-Inspected Meat and Poultry Act of 2018 will strengthen local economies by allowing meat and poultry products inspected under State meat inspection programs to be sold across state lines,” said Kenny Graner, president of the United States Cattlemen’s Association, earlier this month. “This opens access to new markets that were previously unavailable due to outdated federal regulations.”
The South Dakota Stockgrowers Association also supports the bill. State agriculture departments have long been on board. The U.S. Department of Agriculture is, too. A 2001 study by the University of Nebraska Public Policy Center, which attempted to identify differences between states that operate their own inspection regimes and those states that do not, noted the USDA “officially endorses legislation to permit interstate commerce for state-inspected meat.”
So just what is the holdup? The status quo appears to be largely the result of a powerful, lousy law colliding with lazy lawmakers in Washington.
Since the late 1960s, as I’ve lamented several times here and in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable, the USDA has required any animals and their meat that will be sold commercially to be slaughtered and processed in USDA-inspected facilities or in state facilities that are “at least equal to” the USDA facilities (a requirement known, artfully, as the “‘equal to’ requirement”).
That requirement is part of the Wholesome Meat Act of 1967, which applies both to interstate and intrastate sales. Practically, it means that if a local farmer wants to sell you (or a local restaurant) a pound of ground beef, he or she must have the beef processed in a facility that complies with the federal law.
The law, as it applies to wholly intrastate sales—as in the burger example—is unconstitutional. As I’ve noted before, by passing the Wholesome Meat Act, Congress delegated to the USDA a power Congress itself does not possess: to regulate wholly intrastate commerce.
On the other hand, as I noted in an op-ed in The Hill last week, Congress clearly has the power under the U.S. Constitution to regulate interstate commerce. But the fact a law is constitutional doesn’t make it smart policy. For example, under the Wholesome Meat Act, a steak from a cow that was inspected in a state facility (operated in more than half of U.S. states) that follows regulations at least as stringent as those required under federal law in, say, South Dakota, can be sold anywhere in the state but can’t be sold just across the border in Minnesota.
A program created under the 2008 Farm Bill, known as Cooperative Interstate Shipment (CIS) Program, was supposed to alleviate the problem. But CIS has been unpopular for a variety of reasons.
First, it took years to implement. And once it was implemented, problems were immediately apparent. “The Cooperative Inspection Program is cumbersome, requires the entire state to apply to participate before individual plants that meet certain conditions can apply, and contains other provisions that appear to have dissuaded both states and plants from signing up,” reads a 2013 article in the Vermont Law Review.
According to Sen. Rounds, the bill co-sponsor, only four states so far have embraced the CIS model.
“It really is past time to just say that people can sell anywhere in the country under state inspection,” says Judith McGeary, executive director of the Farm and Ranch Freedom Alliance, in an email to me this week. “[E]ither that, or stop requiring that state inspection be equal to federal. Either it is equal or it’s not!”