The U.S. is ruled by laws and regulations. But the latter are often what have the most impact on businesses. That’s what happened with country-of-origin labelling. It’s also as difficult to overturn a regulation as it is to rescind a law. That’s why it’s remarkable that nine North American meat and livestock organizations, including the Canadian Cattlemen’s Association and the Canadian Pork Council, have gotten as far as they have with a legal challenge to the new COOL rule.
Few gave them much chance of legal success after a U.S. district court judge last September denied the groups’ motion for a preliminary injunction against the rule’s implementation. Then three judges in a federal appeals court this March turned down their appeal. But the full appeals court vacated the decision a week later and ordered a full court hearing. Even the three judges suggested this in their decision but the move was still a positive development for the plaintiffs.
The next step was for the full court (11 judges) to hear oral arguments, which they did on May 19. Even more gratifying for the plaintiffs was that the judges appeared to express considerable doubts about USDA’s constitutional rationale for forcing COOL on the industry and on retailers. The judges zeroed in on one question: What is the government’s interest in requiring COOL for meat and other food products?
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Far from being a lost cause, the appeal is increasingly being seen by constitutional scholars as an opportunity to further define constitutional arguments regarding compelled speech. The earlier district court ruling had set the precedent that speculative consumer interests might be enough. But this led the nine plaintiffs to challenge this vague notion. The federal government typically has to reach a higher level of compelling interest, such as health, safety or preventing consumer deception, say observers. The plaintiffs say USDA has never explained why the “born, raised and slaughtered” designations on COOL meat labels were so important that they must be compelled rather than just permitted and provided voluntarily.
Judges’ questions during the hearing suggested they are skeptical of USDA’s argument for requiring mandatory labels. The attorney representing USDA argued that the labelling requirement gives meat consumers information they want and need about which products originate solely within U.S. borders and which come from Canada or Mexico. But the judges said the government’s argument was too broad. Regulatory agencies could have too much power over what is printed on labels if they need only prove the information they seek is in consumers’ interest, they said. Under questioning, the attorney said the government would always be justified in requiring labels as long as they provide consumers with information they want or need to make informed decisions.
To the courtroom audience’s amusement, according to Reuters, several judges posed hypothetical situations to the attorney to exemplify how the law could be applied too broadly under his arguments. Chief Judge Merrick Garland asked him if he thought the government could force milk manufacturers to include missing children on labels. Judge Janice Brown asked if the agencies could require a label telling consumers that beef production increases greenhouse gas emissions.
The full appeals court is not expected to issue its decision for several months. It will likely come after a panel of the World Trade Organization rules whether the COOL rule is in compliance with the U.S.’s international trade obligations or not. It’s just possible though that the WTO and the appeals court might strike a double blow against COOL. That might put an end to a saga that began in the late 1980s and has cost the North American industry billions of dollars.