July 16, 2013
Authored by: Brandon Neuschafer
On July 8, 2013, a number of meat industry trade organizations filed suit against the USDA in the United States District Court for the District of Columbia challening USDA’s new country of original labeling (“COOL”) regulations. A copy of the complaint can be found here. In May of 2013, USDA issued immediately-effective revised COOL regulations requiring, among other things, that meat labeling make a distinction between where an animal was born, raised and slaughtered. These regulations were issued in response to a World Trade Organization dispute between the United States, Mexico and Canada over then-existing COOL regulations in the United States. Mexico and Canada have asserted that the May 2013 regulations only exacerbated the dispute. More background on the WTO dispute can be found here.
Plaintiffs assert three causes of action. First, they argue that the COOL regulations violate the First Amendment because they compel certain commercial speech without advancing a substantial government interest. This claim hearkens back to the rBST decision in International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67 (2d Ci. 1996), where consumer curiosity was determined not to be a governmental interest sufficient to override First Amendment protections. The second cause of action argues that the COOL regulations are contradictory to the country of origina mandates of the Agricultural Marketing Act. Third, plaintiffs asserted that USDA’s rulemaking process was flawed in that it requires misleading labeling, exacerbates the WTO conflict, and fails a cost-benefit analysis when comparing the alleged lack of benefit to the public to the costs imposed on industry.
Digest will continue to follow this case, particularly the First Amendment arguments that seem to be cropping up in many labeling discussions. For example, opponents to mandatory GMO labeling make First Amendment arguments that are very similar to this case and the rBST decision, although the records supporting mandatory labeling in each instance are different. Nonetheless, restrictions on commercial free speech are a very hot topic in the world of food labeling, and we expect several decisions in the coming years to help outline the types of government interests that can justify mandatory labeling laws.