USDA can’t justify COOL burdens, AMI tells appeals court

By Jim Webster

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, April 23, 2014 - The USDA rule that requires meat labels to show where animals were born, raised and slaughtered should be overturned because it fails to meet a compelling government interest, the American Meat Institute (AMI) told a federal appeals court in a brief filed Monday.

AMI and several livestock producer and processor organizations will renew their argument against the country of origin (COOL) labeling regulation May 19 before the U.S. Court of Appeals for the District of Columbia. The court vacated a March 28 ruling by three judges that denied AMI's motion for a preliminary injunction to block implementation of the USDA rule. Attorneys representing USDA's Agricultural Marketing Service (AMS) and farm and activist groups will defend the rule, issued in May 2013 in an attempt to conform to world trade regulations.

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AMI says it is optimistic that the full appeals court will allow the injunction against what it calls “the protectionistic and costly country of origin labeling rule that is hurting livestock producers and meat companies while offering little benefit to consumers.”

AMI's brief contends that AMS has failed to demonstrate any “compelling government interest” that would override meat marketers' speech protection under the First Amendment to the Constitution. It questions what governmental interest could be served by requiring one subset of meat products - just muscle cuts and only at supermarkets - “to identify the country or countries where the source animal was ‘born,' ‘raised,' and ‘slaughtered'.” The case is “about whether labels must provide additional information about the animal's travel history - a requirement not imposed, to our knowledge, on any other category of consumer product.”

The industry brief says USDA's justification for the rule “has changed with the season.” Its final rule articulates “no governmental interest at all,” AMI argues, but contended before the U.S. District Court last year that it was designed to “correct misleading speech.” Before the appeals court panel, AMI said USDA “abandoned that approach and asserted a broader governmental interest in ‘ensuring that information provided to consumers is accurate and meaningful'.”

To allow the USDA rule to go forward would upend four decades of precedent on compelled disclosures and create a split with other appellate courts, AMI argues. It cites a Second Circuit ruling that struck down a 1995 Vermont law that would have required labeling of milk from cows treated with recombinant bovine somatotropin, rejecting “consumer curiosity” as sufficient grounds for compelling speech. It also would flout a 1980 Supreme Court decision that set the standard for government regulation of commercial speech, it said.

Denying an injunction, AMI contends, would “abrogate several prior decisions of this court in one fell swoop.” The D.C. Circuit has concluded that “[T]he Supreme Court's bottom line is clear: the government must affirmatively demonstrate its means are ‘narrowly tailored' to achieve a substantial governmental goal'.”

“Here is the bottom line,” the meat industry said. “AMS has never explained - not once - why ‘born,' ‘raised,' and ‘slaughtered' (or ‘harvested') designations are so important that they must be compelled rather than simply permitted and provided voluntarily (as they were before) by companies that want to capture the value of consumers' ‘patriotic and protectionist' preferences and their ‘beliefs' about food safety.”

Joining AMI in the lawsuit, filed in July 2013, are the American Association of Meat Processors, Canadian Cattlemen's Association, Canadian Pork Council, Confedaracion Nacional de Organizaciones Ganaderas, National Cattlemen's Beef Association, National Pork Producers Council, North American Meat Association and the Southwest Meat Association. The USDA has support from the U.S. Cattlemen's Association, National Farmers Union, Food and Water Watch and the Ranchers-Cattlemen Action Legal Fund-United Stockgrowers of America (R-CALF).

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