U.S. appeal court to reconsider whether to block COOL

A U.S. appeals court which last month rejected North American meat and livestock industry groups’ plea to halt U.S. mandatory country-of-origin labelling (COOL) on meat has scrapped its own ruling and will re-hear the groups’ case in May.

The U.S. Court of Appeals for the District of Columbia circuit announced Friday it has vacated the March 28 ruling by a panel of its judges and will re-hear the case en banc — that is, with its full court of district judges — on May 19.

The full court has ordered the plaintiffs — led by the American Meat Institute (AMI) and including the Canadian Cattlemen’s Association (CCA) and Canadian Pork Council — and the defendants, led by the U.S. Department of Agriculture, to refile their briefs by April 18 and “supplemental briefs” by April 21 on the specific case law being reconsidered.

“This is particularly significant as the rehearing was initiated by the Appellate Court itself and the case will be heard by all the judges on the court,” the CCA said in a statement Friday.

The March 28 judgment being vacated had upheld a previous U.S. District Court decision rejecting the AMI-led plaintiffs’ request last July for a preliminary injunction against COOL, pending the outcome of the groups’ COOL-related lawsuit, also filed last July in District Court. [Related story]

The July suit and request for a preliminary injunction stem from USDA’s revised COOL rule, which was set last May and tightens the previous COOL rule’s labelling requirements.

The issue to be considered en banc on May 19 is whether, under the U.S. Constitution’s First Amendment (freedom of speech), companies can be compelled to provide mandatory disclosure of “purely factual and uncontroversial” information, such as COOL demands on mandatory meat labels, if the government requires it for reasons “other than preventing deception.”

The full court will consider whether the case law to be applied in this instance should be a 1980 case, Central Hudson Gas and Electric Corp. vs. Public Service Commission, or a 1985 case, Zauderer vs. Office of Disciplinary Counsel.

In Zauderer, the U.S. Supreme Court ruled that mandatory disclosure rules would not violate First Amendment rights if the rules “are reasonably related to the state’s interest in preventing deception of consumers.”

In a footnote of its March 28 COOL ruling, the panel of Appeals Court judges suggested an en banc hearing to “resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate” such as COOL.

“Little to no benefit”

The CCA said Friday it will “participate fully” in the en banc process. Another co-plaintiff, the North American Meat Association (NAMA), hailed the court’s decision Friday as “a positive development.”

“Constitutional cases are notoriously difficult, but we have a strong case and with this action the Appeals Court is signaling that it is taking our argument very seriously,” NAMA CEO Barry Carpenter said Friday.

“We remain hopeful that consideration of the case by the full Court will lead to an injunction against the protectionistic and costly country-of-origin labeling rule that is hurting livestock producers and meat companies while offering little benefit to consumers,” AMI general counsel Mark Dopp said in a separate statement Friday.

The AMI and co-plaintiffs, Dopp said, had argued that the COOL rule, as revised last May, violates the U.S. Constitution “by compelling speech in the form of costly and detailed labels on meat products that do not directly advance a government interest.”

Furthermore, he said, the plaintiffs argued that the 2013 version of COOL “exceeds the scope of (the 2008 statutory mandate that created COOL), because the statute does not permit the kind of detailed and onerous labeling requirements the final rule puts in place, and that the rule is arbitrary and capricious, because it imposes vast burdens on the industry with little to no countervailing benefit.”

USDA’s revisions to COOL last May came after the rule, in its 2008 form, was ruled out of order by the World Trade Organization’s Dispute Settlement Body (DSB) in 2011 and WTO Appellate Body in 2012, for discriminating against Canadian and Mexican livestock and meat.

Under the May revisions, COOL’s labeling provisions for muscle cuts of meat now require covered products’ labels to include even more specific information about where each of the production steps (born, raised, slaughtered) took place. The new rule also yanked the previous rule’s allowance for commingling of muscle cuts. [Related story]AGCanada.com Network

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