WASHINGTON, May 14, 2014 - The 11 judges who sit on what some consider the second-highest court in the United States will hear arguments on Monday over the extent of the government’s authority to force the food industry to tell consumers how their food is made or where it comes from.
The case before the U.S. Court of Appeals for the District of Columbia is specifically about the legal precedent that applies to USDA’s mandatory country of origin label (COOL) rules for meat sold in grocery stores. But the case also has implications for laws that would require food labels to disclose ingredients derived through biotechnology.
The full court hearing turns on a motion by the American Meat Institute, its livestock producer allies and counterparts in Mexico and Canada for a court order to stop the USDA labeling rule, which took effect in November. A District Court judge and a panel of three appeals court judges refused to block USDA from enforcing the COOL regulation.
The Court of Appeals vacated the panel’s decision and invited arguments on the narrow question of which of two legal precedents – the more rigorous Central Hudson or the lesser Zauderer standard, named from U.S. Supreme Court rulings in similar cases – applies to compulsory commercial speech for reasons other than preventing consumer deception.
The case has drawn widespread interest from food and other industry groups who align with AMI, from consumer and anti-trade groups and small-farm advocacy groups who persuaded Congress to include COOL requirements in the 2002 farm bill, and from legal scholars.
Industry groups endorse the AMI contention that the USDA rule fails to satisfy Central Hudson’s test that it be “the least restrictive means of achieving a substantial and important government interest.” A supportive brief filed by the National Association of Manufacturers, the Chamber of Commerce of the U.S. and the Business Roundtable urges the court to limit the government’s power to mandate “purely factual and uncontroversial” labeling disclosures “where the industry has no objection to the message conveyed by the compelled speech” and to not uphold laws “that force companies to bear scarlet letters denouncing their own products.”
Department of Justice attorneys argue that the COOL requirement to disclose where animals are “born, raised and slaughtered” meets the standard set in Zauderer because it “serves several interests.” They say it enables a consumer “to apply patriotic or protectionist criteria in the choice of meat,” and enables one who believes that U.S. food safety regulations are better than those of other countries, “or indeed the reverse, to act on that premise.”
AMI counters that the panel’s opinion would ratify compelled disclosure “merely by consumers’ interest in protectionist meat purchases and/or irrational safety concerns, both of which interests the government expressly had disclaimed” in earlier arguments. It urges the court to “require the government to point to a legitimate ‘consumer protection’ interest, relating to the prevention of an actual harm to consumers and not merely the provision of gratuitous information.”
AMI’s brief contends that USDA has failed to demonstrate any “compelling government interest” that would override meat marketers’ speech protection under the First Amendment. 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 possible overlap with biotech labeling cases arises in a brief filed in the COOL cases by the Grocery Manufacturers Association, which has announced plans to challenge the constitutionality of Vermont’s mandatory biotech label statute, enacted last week, on some of the same grounds. “GMA’s and its members’ interests in this case extend beyond general concerns about the government’s authority to mandate commercial speech,” it argues in court filings. The COOL requirements entail “excessive and unjustified costs” on many GMA members, it says.
Another similarity between the two issues appears in comments that followed enactment of the Vermont biotech labeling law to the effect that it is unlikely to survive a legal challenge. “The Supreme Court’s growing interest in safeguarding the constitutional rights of commercial speakers does not bode well for Vermont,” say Washington attorneys Bert W. Rein and John E. Barry. Writing in Food Safety magazine, they note that the Supreme Court recently struck down a separate Vermont disclosure law (Sorrell v. IMS Health, involving pharmaceutical products) by holding that “freedom of speech includes the right not to disseminate government-mandated messages unless the government can demonstrate that the required disclosure is carefully tailored to advance a substantial state interest that cannot be advanced less intrusively.”
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