The court rejects challenges to meat labeling rules that
demonstrate once again that commercial speech regulation and the post-Lochner settlement are inextricably
linked. Here, the Department of Agriculture’s Agricultural Marketing Service adopted a rule
implementing Congress’s requirement of country of origin labeling (COOL) for
meat. Under the relevant statute, a US label is reserved for animals
exclusively born, raised, and slaughtered in the US, while animals from
multiple countries have to be labeled with their countries of origin. The rule requires retailers of “muscle cuts”
(meat other than ground meat) to list the countries of origin in which the source
animals were born, raised, and slaughtered, distinguishing among those acts
where required. The previous rule merely required the phrase “Product of”
followed by a list of the countries of origin, and allowed commingling (in
which cuts from animals of different origins, but processed on the same day, could
all bear identical labels). Canada and
Mexico filed a WTO complaint against the previous rule, and a panel found
against the US, apparently based on “an objection to the relative imprecision
of the information required by the 2009 rule.”
Under the new rule, acceptable labels (assuming the truth of
the statements) are “Born, Raised, and Slaughtered in the United States,” “Born
in X, Raised and Slaughtered in the United States,” “Born and Raised in X, Slaughtered
in the United States,” etc. There’s no
longer an exception for commingling. The
court of appeals first affirmed the district court’s ruling that the regulation
didn’t unlawfully ban commingling. The
rule doesn’t ban any element of the production process; it just requires
accurate labeling. Under current
practices, meat packers can’t provide accurate labels if they are engaged in
commingled production. The necessary changes
may be costly, but that doesn’t “force segregation” as the plaintiff complained,
“except in the sense that compliance with any regulation may induce changes in
unregulated production techniques that a profit-seeking producer would not
otherwise make.” Here, the objection
isn’t a First Amendment objection—it’s more in the nature of substantive due
process.
The court turned to the First Amendment argument. First, the plaintiff argued that Central Hudson ought to apply, not Zauderer, because this wasn’t an
anti-deception regulation. The court
held that the disclosure was “purely factual and non-controversial,” and, unlike
the challengers in United States v. United Foods, Inc., 533 U.S. 405 (2001), or
R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1212, 1216-17 (D.C. Cir.
2012), the plaintiff didn’t object to the content of the mandatory
message. It objected to the term
“slaughtered,” but retailers are allowed to substitute the euphemism
“harvested.” (Harrumph. The court recognizes that this is a
euphemism; slaughtered is the factual and noncontroversial term—the animals’ lives
are deliberately ended in a systematic way.
Producers may fear that consumers will be squeamished if reminded in any
way that their meal once had a face, but that just shows how misguided the idea
that disclosures should be “noncontroversial” is. It’s a manipulable and ultimately meaningless
standard.)
The plaintiff relied on International Dairy Foods
Association v. Amestoy, 92 F.3d 67 (2d Cir. 1996), which invalidated a Vermont
law requiring dairy manufacturers to put a blue dot on milk products from cows
treated with recombinant Bovine Somatotropin (rBST), which the FDA had found to
have no significant effect on the milk.
The government disagreed with Amestoy
(yes!) but also distinguished it since the dot might have been seen by
consumers “as a concession that the treatment might affect the quality of the
milk.” And here we get some lovely
casual empiricism based on the court’s guesses about what consumers are like:
Although the government later seeks
to justify the COOL requirements as possibly reassuring consumers who are
anxious about potentially lax foreign practices, it seems a good deal less
likely that consumers would draw negative hints from COOL information than from
the required declarations about use of rBST. Reference to an apparently novel
additive on milk cartons might well lead to an inference that the additive
might have a dangerous effect, whereas the appearance of countries of origin on
packages of meat seems susceptible to quite benign inferences, including simply
that the retailers take pride in identifying the source of their products.
So, without agreeing or disagreeing with Amestoy, the court found it
distinguishable.
Under Zauderer, a
commercial speaker has only a minimal First Amendment interest in not providing
purely factual information with which it does not disagree, as long as
disclosure is reasonably related to the state’s interest in preventing
deception. Plaintiff argued that this
meant that non-deception-related interests weren’t subject to relaxed Zauderer scrutiny, but rather to Central Hudson. But the court found that
Zauderer extended to factual
disclosures that did something other than correcting deception. Other circuits have similarly extended it to,
for example, “government interests in telling buyers that mercury-containing light
bulbs do contain mercury and may not be disposed of until steps have been taken
to ‘ensure that [the mercury] does not become part of solid waste or
wastewater,’ and in alerting health benefit providers of the background decisions
made by pharmacy benefit managers in their sales to the providers.” Zauderer’s
characterization of the speaker’s minimal interest in avoiding disclosure was “inherently
applicable beyond the problem of deception.” To the extent that previous DC
Circuit decisions seemed to say otherwise, they didn’t because they didn’t
involve purely factual and uncontroversial information, though the panel
suggested that the court go en banc to provide a clear ruling on the issue.
So what are the government’s interest in COOL? Plaintiff argued that, as in Amestoy, disclosure was just a matter of
consumers’ curiousity. But the court
found non-frivolous values advanced by the disclosure: “Obviously it enables a
consumer to apply patriotic or protectionist criteria in the choice of meat.
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.” These interests weren’t so trivial or
misguided as to fall below the threshold that would sustain a minimal intrusion
on commercial speakers’ First Amendment interests.
Without likely success on the merits, the rule couldn’t be
enjoined. “There is, moreover, a public
interest factor that we did not consider in our constitutional analysis, that
of allowing the United States’s effort to comply with the WTO ruling to take
effect. We are clearly in a poor position to assess the effects of any
noncompliance.” (But does this really
matter? If the First Amendment barred the law had Congress adopted it on its
own, could WTO compliance change the calculus?)
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