Forthcoming in Volume 64, Issue 3.


We are progressing toward a post-antibiotic world: Antibiotic drugs that could once treat basic infections are losing their effectiveness at an accelerating rate. If this trend continues, common illnesses will become potentially deadly, and more complex procedures—chemotherapy, surgeries, dialysis—will carry much more significant risk. The modern industrial agricultural system may have contributed significantly to this state of affairs. The vast majority of antibiotics sold in the United States each year—an estimated 70 to 80 percent—are for use in animal agriculture. These antibiotics are primarily administered to food-producing animals at routine, low doses as a cheap method of promoting faster growth and preventing disease in crowded, unsanitary conditions. These subtherapeutic doses, however, are also the most conducive to breeding antibiotic-resistant bacteria. The resistant bacteria bred in animals are then transferred to humans through a variety of mechanisms and reduce the efficacy of antibiotic drugs. In order to address the increasing problem of antibiotic resistance in humans, it is crucial to reduce the subtherapeutic use of antibiotics in food-producing animals. How to efficiently and cost effectively reduce their use, however, remains unclear, and is not a problem traditional command-and-control legislation can solve.

Democratic experimentalist theory offers a compelling framework for addressing this problem. Under the traditional democratic experimentalist model, a central institution sets a common goal and then delegates authority to local institutions to experiment to achieve that goal. Local institutions then provide data on their performance to the central institution to pool, assess, and re-benchmark. The federal government has identified the importance of reducing antibiotic use in livestock, but beyond articulating this goal, has failed to act thus far. In its place, California has become the first state to pass a law banning the subtherapeutic use of antibiotics in food-producing animals. This legislation is an exemplar of state action with the potential to improve the food system and public health both locally and in other states, and it could do so effectively using a new, layered iteration of democratic experimentalism.

The California law is, however, subject to legal challenge under federal preemption grounds. This Article analyzes these grounds and concludes that the law may survive such a challenge because it furthers federal objectives in a number of ways and is supported by California’s compelling interest in protecting the health and safety of its citizens. The Article further contends that democratic experimentalist theory also bolsters the argument against federal preemption here and more generally when addressing these types of knowledge-intensive, scientifically uncertain policy areas where experimentation is key to problem-solving and especially where there is a threat to public health. As the only state action in this critical area, ensuring the experimentalist implementation of the California law and securing its fate against preemption are crucial to addressing the threat to public health posed by antibiotic resistance.

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