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…
Tag Archives D.C.
The District of Columbia City Council this week overrode Mayor Vincent Gray’s veto of the 2015 budget, which includes a directive for the issuance of “healthy food and beverage standards” for vending machine and other concession offerings sold or served on District government property. Encouraging fare that includes fruits, vegetables and other offerings low in calories and sodium, the Workplace Wellness Emergency Act of 2014 standards will “apply to foods and beverages purchased or served by District agencies, including at meetings, events, in vending machines, and through on-site vendors, with the exception of food served by the Department of Corrections and the Department of Behavioral Health to persons who reside at their institutions or are in their direct custody.” The council also reportedly approved a proposal to prohibit polystyrene foam food and beverage containers beginning in 2016; meat trays will be exempt from the ban. See The Washington Post, July…
A federal court in the District of Columbia has denied the request of the Black Farmers & Agriculturalists Association, Inc. to intervene in lawsuits brought by female and Hispanic farmers against the U.S. Department of Agriculture (USDA) alleging gender and race bias in the administration of farm loan and disaster benefit programs. Love v. Vilsack, No. 00-2502 (D.D.C., decided June 13, 2014). Additional information about the gender discrimination claims appears in Issue 374 of this Update. The association was not a member of the settlement class established to resolve the claims of African-American farmers who failed to file claims for administrative adjudication before the deadline expired in Pigford v. Glickman (Pigford I). Those missing the deadline saw their claims revived under the 2008 Farm Bill and consolidated in litigation collectively known as Pigford II. Details about that litigation appear in Issue 395 of this Update. The association sought (i) a declaration…
The Center for Science in the Public Interest (CSPI) has filed a complaint against the U.S. Department of Agriculture and Food Safety and Inspection Service, seeking a declaration that the agencies have unreasonably delayed taking action on its May 2011 petition requesting that certain strains of antibiotic-resistant (ABR) Salmonella in ground meat and poultry be declared adulterants. CSPI v. Vilsack, No. 14-895 (D.D.C., filed May 28, 2014). Details about CSPI’s petition appear in Issue 396 of this Update. According to the nutrition and health advocacy organization, if these pathogens are declared adulterants, affected meat and poultry products would be barred from entering commerce, and the action “would also confirm the agency’s authority to request without evidence of illness that a company recall products containing ABR Salmonella, or—in the absence of a company’s voluntary compliance—to detain and seize those products.” The complaint refers to a number of Salmonella outbreaks, some involving…
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…
The Center for Science in the Public Interest (CSPI) and Mercury Policy Project have sued the U.S. Food and Drug Administration (FDA), seeking a declaration that the agency’s delay in responding to their citizen petition on labeling fish with high levels of mercury is unreasonable and violates the Administrative Procedure Act and Federal Food, Drug, and Cosmetic Act. CSPI v. FDA, No. 14-0375 (D.D.C., filed March 10, 2014). Further details about the petition, which seeks labeling on seafood packaging and point-of-purchase signage, appear in Issue 401 of this Update. The plaintiffs also seek an order compelling the agency to issue a final response by a court-imposed deadline. According to the complaint, the plaintiffs submitted the petition to FDA in July 2011 and received a tentative response from the agency beyond the 180-day limit required by FDA regulations. The plaintiffs claim that they have not received any communication from FDA since then…
A federal court in Washington, D.C., has reportedly refused to reconsider its denial of hundreds of claims by African-American farmers who alleged that they were owed a share of the $1.25-billion settlement fund established to compensate a class of farmers allegedly discriminated against by the U.S. Department of Agriculture’s (USDA’s) loan application process. In re Black Farmers Discrimination Litig., No. 08-0511 (D.D.C., order entered March 5, 2014). Information about the lawsuit and a dispute over attorney’s fees appears in Issue 490 of this Update. According to a news source, the court determined that it lacked authority to alter the terms of the settlement agreement, which provided that claims determinations would be considered final and not subject to court review. “This may be cold comfort to claimants who feel that their claims were denied in error; but without the Settlement Agreement, the amount of relief attainable by members of the plaintiff…
A District of Columbia court has determined that a plaintiff who purchased a bottle of Pompeian-brand extra-virgin olive oil (EVOO) after learning that testing done in 2010 and 2011 concluded that certain EVOO brands did not satisfy U.S. and international EVOO standards has standing to bring certain consumer-fraud claims despite purportedly believing that the product was defective when purchased. Mostofi v. Mohtaram, Inc., No. 2011 CA 163 B (D.C. Super. Ct., order entered November 12, 2013). Thus the court rejected the defendant’s “manufactured” or “self-inflicted” injury standing argument. According to the court, “The dispositive consideration is that Plaintiff is a consumer who engaged in a consumer transaction.” The court also disagreed with the defendant that the plaintiff lacked expert testimony or that his sampling testing was insufficiently reliable to support two claims of statutory consumer fraud, finding they were matters of fact to be determined by a jury. The court…
A federal court in the District of Columbia has dismissed, for lack of standing, a lawsuit filed by the Humane Society of the United States and several other plaintiffs against the U.S. Department of Agriculture (USDA), challenging the secretary’s approval of the National Pork Board’s purchase of the slogan “Pork, The Other White Meat” from the National Pork Producers Council (NPPC). The Humane Soc’y of the U.S. v. Vilsack, No. 12-1582 (D.D.C., decided September 25, 2013). Details about the lawsuit appear in Issue 455 of this Update. According to the court, the individual pork farmer plaintiff lacked standing because he could not show that changes to the advertising funded by the pork checkoff program following the board’s purchase and retirement of the slogan affected him financially. In fact, since the board began advertising with the slogan “Pork: Be Inspired,” the net return on investment to pork producers rose from $13.8…
A federal court in the District of Columbia has denied the American Meat Institute’s motion for a preliminary injunction in a challenge to the amended country-of-origin labeling (COOL) rules adopted by the U.S. Department of Agriculture’s (USDA’s) Agricultural Marketing Service in response to a World Trade Organization (WTO) determination that the original rules violated the WTO Agreement on Technical Barriers to Trade by according less favorable treatment to foreign livestock. Am. Meat Inst. v. USDA, No. 13-1033 (D.D.C., decided September 11, 2013). The court was not persuaded that the plaintiffs, meat processing interests, were likely to succeed on the merits of their First Amendment and statutory challenges to the amended rule. Additional information about the challenge appears in Issue 495 of this Update. Assessing the First Amendment claims under a lenient reasonableness standard because the rule involved commercial speech that mandated purely factual and uncontroversial disclosures, the court determined that…
