Wednesday, September 11, 2013
Judge Ketanji Brown Jackson (D.D.C.) today denied the American Meat Institute's motion for a preliminary injunction against new meat labeling rules of the Agriculatural Marketing Service. The AMI argued in American Meat Institute v. USDA that the new country-of-origin, or COOL, rules violated the First Amendment, the Agriculture Marketing Act, and the Administrative Procedures Act. When the AMI sought a preliminary injunction, Judge Jackson ruled that it failed to demonstrate a likelihood of success on any of the claims.
The AMS's COOL rule, final and published in May 2013, requires meat labels that designate the country where the animal was born, raised, and slaughtered, in three categories: Category A, "Born, raised, and slaughtered in the United States"; Category B, "Born in Country X, raised and slaughtered in the United States"; Category C, "Born and raised in Country X, slaughtered in the United States"; and Category D, "Product of Country X." In so designating, the 2013 rule does not allow "commingling of muscle cut covered commodities of different origins"--that is, it doesn't allow meat from different countries to be commingled in the same labeled package. (The 2009 rule did allow commingling, but the AMS changed it in 2013 in order to comply with a WTO ruling and to "let consumers benefit from mor especific labels.")
The AMI alleged that the 2013 COOL rule violated free speech, but Judge Jackson disagreed. The court wrote that Zauderer rationality rule applied (and not the Central Hudson intemediate scrutiny test), because the COOL rule is a disclosure requirement that deals with only "purely factual and uncontroversial" disclosures about where the animal was born, raised, and slaughtered, and because the 2013 rule targeted "deceptive speech" insofar as the earlier rule would have caused confusion about the origin of commingled meat.
The court held that Zauderer's rationality was easily met here: "there is clearly a reasonable relationship between the government's interest in preventing consumer confusion about the origins of muscle cut meat, on the one hand, and the required disclosure of specific production step information, on the other."
The ruling comes on the heels of two cases from the D.C. Circuit addressing when Zauderer or Central Hudson applies. In one, R.J. Reynolds Tobacco Co. v. FDA, the D.C. Circuit held that Central Hudson applied to FDA regs requiring certain textual warnings and graphic pictures on cigarette packages, because the pictures weren't designed to correct consumer confusion or otherwise correct deceptive speech. But in the other, Spirit Airlines v. USDOT, the D.C. Circuit held that Zauderer applied to a DOT rule requiring that the total cost of airfare, inclusive of tax, be the most prominent price displayed on airline advertisements and travel websites. The court said that DOT's regs required factual information and was directed at possibly misleading commercial speech.