Meat producers must disclose where an animal is born, raised and slaughtered, the full U.S. Court of Appeals for the D.C. Circuit ruled Tuesday, holding that the congressionally mandated disclosure requirement does not violate commercial free speech protections.
Writing for the majority, Senior Judge Stephen Williams found First Amendment concerns were offset by the government’s substantial interest in country-of-origin food labeling. Such labels allow consumers to choose American-made products and provide important information in the event of a food-borne illness outbreak.
“The value of this particular product information to consumers,” Williams wrote, is “a matter of common sense.”
The court rebuffed a request from the American Meat Institute and other livestock producers, feedlot operators and meat packers to issue a preliminary injunction blocking the country-of-origin rule, which was issued in its revised form by the Department of Agriculture in 2013.
Represented by Hogan Lovells, the trade groups said the rule was expensive and onerous because it makes no allowances for “commingling” meat cuts from animals of different origins that were processed together on the same day. The labeling requirement does not directly advance a government interest, exceeds the statutory mandate and is arbitrary and capricious, they argued.
But Williams wrote that disclosures about where an animal was born, raised and killed are purely factual and noncontroversial, and “directly informative of intrinsic characteristics of the product.” He also noted that although the American Meat Institute objected to the term “slaughter” (which he called “a plain, blunt word for a plain, blunt action”), the regulations also allow retailers to use the term “harvested” instead.
“The court’s decision today is disappointing,” said AMI Interim President and CEO James Hodges in written statement. “We have maintained all along that the country-of-origin rule harms livestock producers and the industry and affords little benefit to consumers. This decision will perpetuate those harms. We will evaluate our options moving forward.”
The decision is likely to bear on another closely watched First Amendment case before the D.C. Circuit that involves so-called conflict minerals.
In that case, industry groups challenged a rule by the U.S. Securities and Exchange Commission requiring manufacturers to disclose whether their products contain gold, tin, tantalum or tungsten from the Democratic Republic of the Congo or its neighbors.
The SEC in late May asked the court to rehear its case en banc in light of the meat case.
“There is a significant possibility that the en banc court’s decision in American Meat Institute will warrant panel rehearing regarding the First Amendment issue in this case,” according to the SEC brief.
In both cases, the question is how far the government can go to force companies to say something that they would not reveal voluntarily,
The key precedent: the U.S. Supreme Court’s 1985 decision in Zauderer v. Office of Disciplinary Counsel.
The high court in that case overturned rules in Ohio restricting attorney advertising, but what’s relevant here is the portion relating to disclosure requirements—in Zauderer, revealing that contingency-fee clients might still be liable for costs in unsuccessful claims. The Supreme Court held that disclosure could be compelled to prevent consumers from being deceived.
The question before the D.C. Circuit was whether that standard could apply in instances other than correcting misleading commercial speech. Taking a broad view, the majority said yes.
“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,” Williams wrote.
The minority vigorously disagreed. Judge Janice Rogers Brown, writing in a 34-page dissent that was joined by Judge Karen Henderson, said the court has created “a new standard for compelled commercial disclosures.”
“What began as a 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 ‘inquiring minds want to know,’ ” Brown wrote.
The majority, she continued, “hacks the First Amendment down to fit in the government’s hip pocket. I will not join in the carnage.”
Henderson, in a separate dissent, added that the majority opinion is “inconsistent with our law of the circuit doctrine and runs counter to the principle of stare decisis.”
Judge Judith Rogers concurred in part, but disagreed with the majority’s “reformulation of the standards” on commercial free speech.
Judge Brett Kavanaugh issued his own concurring judgment. “Country-of-origin labeling is justified by the government’s historically rooted interest in supporting American manufacturers, farmers and ranchers as they compete with foreign manufacturers, farmers and ranchers,” he wrote.
The government’s first country-of-origin rule, issued in 2009, was challenged by Canada and Mexico before the World Trade Organization. The WTO Appellate Body in 2012 found the rule was administered unfairly, but seemed to agree in theory that country-of-origin labeling could serve a legitimate purpose. Canada has challenged the revised rule in pending WTO proceedings.
The governments of Canada and Mexico both submitted amicus briefs in support of neither side in the American Meat Institute case. Canada argues that the rule is unfair because it imposes higher costs “in segregating imported livestock from U.S. livestock in order to meet the [labeling] requirements … This has led to decreases in both the demand for imports of Canadian livestock in the United States and in the prices that Canadian cattle and hog exporters receive for their products.”
The National Association of Manufacturers and the Grocery Manufacturers Association weighed in as amici curiae in support of the American Meat Institute.
Justice Department lawyer Daniel Tenny argued for the Agriculture Department, supported by intervenor United States Cattlemen’s Association and amici Food and Water Watch Inc., American Grassfed Association, Center for Food Safety and Tobacco Control Legal Consortium.
Contact Jenna Greene at email@example.com or on Twitter @jgreenejenna.