In a 9-2 en banc decision, the District of Columbia Circuit has affirmed an
earlier panel decision that the U.S. Department of Agriculture (USDA) can
require meat producers to include country-of-origin labeling (COOL) on their
packaging. Am. Meat. Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered July
29, 2014). The First Amendment allows for such required disclosures because
the government’s interest is sufficient, the court found. Additional information
on the American Meat Institute’s constitutional challenge and the D.C. panel’s
decision appears in Issues 518 and 520 of this Update.

In its discussion, the court interpreted the U.S. Supreme Court’s decision in
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) to reach beyond
mandated commercial labeling necessary to correct deception to include the
“factual and uncontroversial disclosures required to serve other government
interests” at issue in the COOL context. The language in Zauderer “sweeps far
more broadly than the interest in remedying deception,” the court found.
“To the extent that other cases in this circuit may be read as holding to the
contrary and limiting Zauderer to cases in which the government points to an
interest in correcting deception, we now overrule them.”

The court then assessed whether the government had a sufficient interest in
COOL that it could require meat producers to include the labels, and it found
that several aspects combine to provide USDA with a substantial interest,
including: “the context and long history of country-of-origin disclosures to
enable consumers to choose American-made products; the demonstrated
consumer interest in extending [COOL] to food products; and the individual
health concerns and market impacts that can arise in the event of a foodborne
illness outbreak.” The court also found that the mandatory COOL
disclosure is a “reasonable fit” with the government’s interest in supplying
the information to consumers. In concurring opinions, one judge clarified
the relationship between Zauderer and other commercial-speech principles,
while another judge emphasized his belief that the government interest in
supporting American farmers, ranchers and manufacturers is alone sufficient
to sustain the constitutional challenge.

In a dissent, one judge accused the majority of “delirium on a pogo stick” by
misinterpreting Zauderer, relaxing the standard of review to below even the
most lenient and deferential standard and ignoring the “clear trajectory” of
the U.S. Supreme Court’s jurisprudence on commercial speech. “What began
as robust protection from government coercion has now been reduced to an
eerie echo of a supermarket tabloid’s vacuous motto: the government may
compel citizens to provide, against their will, whatever information ‘[i]nquiring
minds want to know!’” Zauderer, she wrote, is limited to correcting deception
because requiring advertisers to provide more information than they may
otherwise present is “constitutionally permissible when the government’s
available alternative is to completely ban that deceptive speech.” She further
argued that the government’s interest was not substantial for requiring COOL;
for example, any valid interest identifying in American-made goods, she said,
would be met by producers understanding the value of this information to
consumers and voluntarily providing “Made in the USA” labeling to boost
sales. The court’s decision “hacks the First Amendment down to fit in the
government’s hip pocket,” she concluded. “I will not join the carnage.”


Issue 532

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.