WASHINGTON, May 21, 2014 – Predicting how judges will decide, based on their comments and the questions they ask attorneys during oral arguments, is notoriously difficult. Listening to members of the U.S. Court of Appeals for the District of Columbia Monday, one could conclude that they tend to believe that USDA’s country-of-origin labeling (COOL) regulation is appropriate. But one also could infer that they lean to the view that the COOL law itself unconstitutionally violates industry’s rights.

The law and USDA’s regulation are challenged by the American Meat Institute (AMI), the major U.S. cattle and hog producer organizations, as well as producers and processors in Canada and Mexico. AMI attorney Catherine E. Stetson argued that the government has failed to offer a legitimate, substantial reason for imposing a burden on industry that USDA estimates at $200 million.

Department of Justice attorney Daniel Tenny, representing USDA, contended that government’s interest is in “providing consumers information they can use in purchases of food to feed their families or to eat themselves.” Although his argument persuaded a lower court and a three-judge panel to reject AMI’s bid to block the USDA ruling, the panel asked the full 11-member appeals court to decide which of two standards for commercial speech protection applies in this case.

Several judges challenged Stetson about why meat should be treated differently than other products that are required to have origin labels, but they also grilled Tenny about why the COOL rationale couldn’t extend to any number of characteristics to satisfy consumer interests.

Senior Circuit Judge Stephen F. Williams asked Stetson, “Doesn’t the government have an interest in advancing the interests of citizens, or a significant bunch of them?” A number of senators who supported the law “very emphatically said their consumers were interested in knowing” the origin of their meat,” he said.

“The problem here is you don’t have a significant bunch,” Stetson said. Such a rationale could be applied to other things that interest consumers, she added. “Try to imagine what the end point is. How far did the cow travel? Is the farmer black or white?” Later, she remarked, “There’s no stopping point. How far did it come from? Male or female farmer? Small business or large?”

Asked whether razors, toothpaste, automobiles, shoes and clothing with country-of-origin label requirements are not unconstitutional, Stetson said there is an “order of magnitude difference. All those other statutes have tariff or counterfeiting” as the basis for the label requirement.

Judges pressed Tenny to define the government’s interest in requiring label language, seeming to question whether it withstands the constitutional tests applied by the Supreme Court. Judge

Janice Brown asked whether a government agency could require a label to say that that beef production increases greenhouse gases. “If you take it that it’s factual and non-controversial, government could,” Tenny said. “But that relates to science I’m not going to opine on.”

Chief Judge Merrick B. Garland asked him whether government authority extends to milk cartons. “Have you seen this lost child?” messages appear on many milk cartons, now voluntarily, he said, asking, “Is this something government could compel” under the standard Tenny cited for the COOL regulation. “This is quite a different case,” Tenny replied.

“You recognize that not every aspect of consumer curiosity can be justification for label disclosure,” Williams told him. “Aren’t you distinguishing between American ranchers and Canadian ranchers or Mexican ranchers and implicitly saying that Americans are better?”

“We are not saying consumers should prefer American,” Tenny said. “We say consumers should have the information to make the choice. Government doesn’t have to say, ‘Buy locally grown’ or ‘raised under certain conditions.’” The purpose of the law is “furthering consumers’ ability to act on their own interests,” he said.

It was not a matter of asserting an interest in helping American ranchers, as opposed to Canadian or Mexican, at least “not directly,” he said. “Indirectly?” a judge asked. “It might have that effect,” Tenny replied.


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