Food Labeling Laws Could Be Undermined By First Amendment Court Challenge

The meat processing industry’s drive to overturn revised country-of-origin labeling (COOL) laws continued Monday, when the full U.S. Court of Appeals for the D.C. Circuit considered the industry’s argument that the regulations violate free speech laws.

If the court sides with the meat industry, the fallout could have far-reaching consequences, as it would potentially undermine a wide range of labeling laws, particularly COOL regulations, which require companies to disclose where their products and ingredients are produced and manufactured through the display of packaging labels. Most American consumers are familiar with common COOL labels like "Made in China" or "product of the United States" from everything from sneakers to frozen hamburger patties, even if they are not aware of how exactly they are regulated.

The meat industry made its case during Monday’s en banc review -- an uncommon type of proceeding conducted before all 11 judges on the court rather than the typical three-judge panel -- that the COOL laws as revised in 2013 infringe on companies’ First Amendment rights by compelling speech.

Chief Judge Merrick Garland said that in order to decide that First Amendment rights were being violated under the regulations, the court would “have to strike down at least half a dozen statutes on the books since the 1930s,” according to Politico. He also pointed out that many products far beyond the scope of the meat industry, including the razor he shaved with Monday morning, are required to display COOL labels, Politico reported.

As such, a decision by the court that the COOL labels infringe on companies’ free speech rights could mean changes for industries that rest far beyond the food realm.

A three-judge panel of the court handed down a decision on March 28 suggesting that the en banc hearing on just the First Amendment issues be held at a future date, but otherwise affirming a district court’s decision not to allow a preliminary injunction against the 2013 COOL laws. The case is known as American Meat Institute vs. U.S. Department of Agriculture.

“We suggest that the full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information,” the three-judge panel wrote in the March 28 decision.

The National Farmers Union and other American farmers’ and food production industry groups like the U.S. Cattlemen’s Association and the Consumer Federation of America continue to support the laws, which provide clarity about food origins.

“The information required by the regulation to be provided is factual and noncontroversial,” NFU President Roger Johnson said, according to the Ohio’s Country Journal agricultural publication. “I am hopeful that the full Circuit will affirm the panel’s prior decision and continue to deny the preliminary injunction requested by appellants.”

But the American Meat Institute has consistently argued that the laws will have serious negative impacts on the meat industry.

“It is incomprehensible that USDA would finalize a controversial rule that stands to harm American agriculture, when comments on the proposal made clear how deeply and negatively it will impact U.S. meat companies and livestock producers,” AMI Senior Vice President of Regulatory Affairs and General Counsel Mark Dopp said last year. “This rubber stamping of the proposal begs the question of the integrity of the process: many people spoke, but no one at USDA listened.”

Food labeling is a major issue in food and agriculture circles, as food safety advocates and right-to-know groups have gone head-to-head with food manufacturers and industry groups over whether foods containing GMOs should be labeled, as well as what exactly labels like “natural” or “organic” should really mean.

The GMO labeling debate has made headlines in recent months, particularly in Vermont, where Gov. Peter Shumlin signed the nation’s first unconditional mandatory GMO labeling bill into law on May 8.

The Vermont law is the first in the nation to require a state to begin labeling foods that contain genetically modified ingredients no matter how other states' lawmakers decide to address the issue. Connecticut and Maine had already passed GMO labeling laws, but the launch of their labeling regimes does not begin unless other states pass similar bills.