D.C. Circuit Upholds COOL Regulations in Preliminary Injunction Context
The D.C. Circuit Court of Appeals has affirmed a lower court ruling denying the motion for preliminary injunction filed by meat producer interests in litigation challenging U.S. Department of Agriculture (USDA) regulations requiring retailers of “muscle cuts” of meat to list the countries of origin and production (country-of-origin labeling or COOL) as to each step of production—born, raised or slaughtered. Am. Meat Inst. v. USDA, No. 13-5281 (D.C. Cir., decided March 28, 2014).
The regulations at issue were adopted in 2013 in response to a World Trade Organization (WTO) ruling finding their predecessor to violate the WTO Agreement on Technical Barriers to Trade. They “increased the required level of precision” to address each production step and also “eliminated the special allowance for commingled meat.” The plaintiffs argued that the amended rules ban commingling and thus alter “production practices over which the COOL statute gives the Secretary no authority,” and that the “production-step labeling is both outside of and contrary to the plain language of the COOL statute.”
According to the court, the 2013 regulations do “not actually ban any element of the production process,” rather they “require that meat cuts be accurately labeled with the three phases of production named in the statute. It appears that under current practices meat packers cannot achieve that degree of accuracy with commingled production” and this may be costly for the packers. Still the rules do not “‘force the segregated handling of animals with varying geographical histories,’ except in the sense that compliance with any regulation may induce changes in unregulated production techniques that a profit-seeking producer would not otherwise make.” The court concluded that USDA’s interpretation of the statute was reasonable and thus entitled to be upheld.
The court also rejected the plaintiffs’ First Amendment compelled speech claims, distinguishing their concerns from cases involving disclosures of hormone treatment (rBST) of dairy cows. In this regard, the court stated, “Although the government later seeks to justify the COOL requirements as possibly reassuring to consumers who are anxious about potentially lax foreign practices, it seems a good deal less likely that consumers would draw negative hints from COOL information than from the required declarations about use of rBST. . . . [T]he appearance of countries of origin on packages of meat seems susceptible to quite benign inferences, including simply that the retailers take pride in identifying the source of their products.”
Finding that the labeling “enables a consumer to apply patriotic or protectionist criteria in the choice of meat[, and] it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise,” the court ruled that these goals were not “so trivial or misguided as to fall below the threshold needed to justify the ‘minimal’ intrusion on [the plaintiffs’] First Amendment interests.” The court concluded that the plaintiffs had failed to show a likelihood of success on the merits.