Tenth Amendment Center: Missouri Bill Would Prohibit State Enforcement of FDA Rules on Certain Animal Medications, Nullify Them in Effect
JEFFERSON CITY, Mo. (Jan. 12, 2018) – A bill filed in the Missouri House would ban state enforcement of certain FDA rules relating to medications in animal feed. If passed, the legislation would take a big step toward nullifying these unconstitutional FDA mandates in effect.
Rep. Jeff Pogue (R-Salem) prefiled House Bill 1750 (HB1750) on Dec. 27. The legislation would bar the state, its agencies and its political subdivisions from implementing or enforcing federal laws, rules or regulations that require livestock producers to obtain a veterinary feed directive (VFD) in order to use medicated feed, or similar regulations that require veterinary oversight for the use of medicated feed. The bill specifically prohibits the Missouri Department of Agriculture from adopting any such federal rule, or similar rule without the approval of the general assembly.
The FDA exercises strong regulatory control over animal medications. Effective Jan. 1, 2017, the agency implemented strict rules relating to how medically important antibiotics can be administered to animals. Under the rules, the FDA requires veterinary oversight whenever antibiotics are administered to any “food animal species” via feed or water. The rules apply even if the animals are not intended for food production. In other words, the same federal regulations apply to animals such as pet rabbits and backyard poultry, as apply to cattle, chickens and pigs raised on commercial farms for consumption. All medically important antibiotics administered by feed or water require a veterinary feed directive or a prescription under federal law.
The federal government does not have any constitutional authority to regulate animal medications within the borders of a state. This is a power left to the state governments.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to nullify these FDA mandates because most enforcement actions rely on help, support and leadership from the states. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.” This is true of FDA rules.
Passage of HB1750 would not end federal enforcement of VFD requirements in Missouri, but it would end any and all state or local enforcement. That would mean the FDA would be left to enforce these mandates completely by itself. As we’ve seen with marijuana and industrial hemp, a federal regulation becomes ineffective when states ignore it.The federal government lacks the personnel and resources necessary to maintain enforce all of its rules, regulations and mandates, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere.
We will likely see a similar effect if Missouri refuses to enforce FDA mandated VFD requirements. It will make it that much more difficult for the feds to enforce their will within the state.
HB1750 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
HB1750 will be officially introduced when the Missouri legislature convenes for its 2018 session on Jan. 3. At that time it will need to be referred to a committee where it must pass by a majority vote before moving forward in the legislative process.