Key appellate judges will chew over a reheated dispute about meat labels and free speech.
And the place will be packed.
On Monday, 12 judges on what’s called the nation’s second-highest court will gather in an unusual session to consider claims that country-of-origin label requirements violate U.S. meat producers’ First Amendment rights. It’s a case with global implications.
“A lot of folks are watching,” Patty Lovera, assistant director of Food and Water Watch, a consumer advocacy group, said in an interview Friday. “There are a lot of eyes on it.”
Led by the American Meat Institute, ranchers, packers and others are challenging U.S. Department of Agriculture rules that govern country of origin labels. In particular, they dislike a sweeping requirement to identify where the source animal was born, raised and slaughtered.
“In Seattle, for example, a pack of steaks might be labeled, `Born and raised in Canada, slaughtered in the United States,'“ the American Meat Institute noted in a legal brief. “And in Texas, a tray of T-bones might be labeled, `Born in Mexico, raised and slaughtered in the United States.’“
As meat industry attorney Catherine E. Stetson noted in her brief, “it was not ever thus.” In fact, the hourlong oral argument coming Monday has been a long time stewing. Congress first imposed country-of-origin label requirements in a 2002 farm bill. Two years later, lawmakers reconsidered and blocked the labels.
In a 2008 farm bill, Congress tried again. The subsequent USDA rules initially allowed relatively simple labels; a steak, for instance, was “Product of the United States and Mexico.” The label requirement doesn’t apply to meat sold in restaurants or to processed food, such as the meat in a can of chili.
Mexico and Canada successfully argued to the World Trade Organization that the label requirements were an unfair trade barrier. The USDA then cooked up new requirements that included the more specific information covering each phase of production.
A federal judge declined last year to block the label rules from taking effect.
“There is no doubt that the final rule imposes significant compliance costs on some companies in the meat production industry,” U.S. District Judge Ketanji Brown Jackson acknowledged. “However, it is also true that granting an injunction could cause the United States to be deemed out of compliance with its international trade obligations, which apparently is also a costly proposition.”
The additional costs include industry changes required to maintain separation of animals and meat products. The USDA estimated the first-year incremental costs to the industry for country of origin labels covering products from beef, pork and chicken to fish, peanuts and pecans to be $2.6 billion.
In March, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit sided with the USDA’s label rules.
“Obviously, it enables a consumer to apply patriotic or protectionist criteria in the choice of meat,” Judge Stephen F. Williams said. “And it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.”
Lovera, of Food and Water Watch, added Friday that the label provides “a pretty basic piece of information” that people want to know.
Meat industry officials asked the entire D.C.-based appellate court to reconsider. These so-called en banc hearings are rare. In 2012, the D.C. circuit reported resolving only one case through an en banc hearing. Nonetheless, the judges agreed the meat label case merited their full attention.
“That tells us there is some continuing disagreement among the judges about the standard of review to apply,” Stetson said in an interview Friday.
The First Amendment question facing the court is when the government can compel speech; in this case, through a mandatory label.
The answer, in turn, will depend partly on the type of scrutiny that judges apply.
“It’s about what government interest can be used to justify compelled labeling,” said Judith E. Coleman, another attorney for the American Meat Institute.
One precedent sets “reasonableness” as the threshold, giving the government wide latitude to compel speech designed to correct misleading commercial speech. Using this standard, for instance, the D.C. court upheld a rule governing how the Florida-based Spirit Airlines advertises its prices.
A stricter precedent allows compelled speech only if the labeling requirement is crafted to advance a substantial government interest. Under this standard, the North Carolina-based R.J. Reynolds Tobacco Co. fended off a Food and Drug Administration requirement to include graphic warning illustrations on cigarette packs.
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