COOL hearing set for Monday

Full en banc hearing set on country-of-origin labeling preliminary injunction scheduled for May 19.

The stage is set for another debate on the first amendments rights of mandatory country-of-origin labeling for meat products.  

The U.S. Court of Appeals for the District of Columbia Circuit vacated a ruling provided March 28 that vacated a request for a preliminary injunction to block the implementation of the updated country-of-origin labeling law that USDA updated in May 2013.

The court will hear oral arguments before the full court at 9:30 am on Monday, May 19. The court has scheduled 30 minutes of oral arguments from each side, followed by an opportunity for the 12-judge panel to ask questions. However the previous panel hearing in January went much longer and this time is expected to be longer as well, said Judy Coleman, lawyer at Hogan Lovells which is representing the American Meat Institute and other plaintiffs.

In the decision calling for the full court rehearing, parties were asked to address whether under the First Amendment, judicial review of mandatory disclosure of “purely factual and uncontroversial” commercial information, compelled for reasons other than preventing deception can be required.

The main question is whether the First Amendment permits the government to compel labeling disclosures that do not advance a governmental interest in preventing a harm to the public.

In a press call hosted by AMI, Coleman said there are several potential responses to that question.

For the panel, it may say that the government may compel factual disclosures to serve any interest that is not “trivial or misguided” or consumer interest in protectionism and “beliefs” about safety sufficient.

The U.S. Department of Agriculture may argue that the government may compel factual disclosures that are “reasonably related” to any interest the government “provides” or if government has interest in compelling the disclosure of additional information for any purpose. The appellants could say government may compel factual disclosures that are tailored to advance a substantial government interest (health, safety, preventing deception, e.g.); government may not claim an interest in compelling disclosures generally.

Coleman said this is where appellants have been able to show that none of these substantial government interests have been met.

Coleman said she doesn’t expect a final ruling from the judges won’t be a quick decision. “With 12 judges needing to come to a meeting of the mind, I don’t expect a decision until the next several months,” she said.

If the panel finds that the First Amendment rights have been violated, the rule would be vacated or enjoined, however the court would want to frame it, Coleman noted. However, if the court rules in favor of USDA the law would remain.

The lawsuit to block implementation of the COOL rule was originally filed July 8, 2013. AMI’s co-plaintiffs include American Association of Meat Processors, Canadian Cattlemen’s Association, Canadian Pork Council, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association, Southwest Meat Association and Mexico’s National Confederation of Livestock Organizations.

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