Full circuit reviews COOL case

Full circuit reviews COOL case

Full en banc hearing on COOL law considers First Amendment arguments.

THE full U.S. Court of Appeals for the District of Columbia Circuit heard arguments May 19 in a packed courtroom regarding a challenge to the U.S. Department of Agriculture's country-of-origin labeling (COOL) requirements.

The hearing was a rare en banc review of the case in which 12 judges of the appeals court participated. A number of judges on the panel indicated that the case could have far-reaching impacts not only on COOL but on other labeling laws as well.

The court had vacated a March 28 ruling that vacated a request for a preliminary injunction to block implementation of the COOL law that USDA updated in May 2013.

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

Similar to the previous panel hearing in January, the judges inquired much beyond the 30 minutes allowed for each side to provide oral arguments, searching for a deeper understanding of the compelled First Amendment rights.

A joint statement from AMI and the co-plaintiffs said they appreciate the careful consideration given to this case by the judges, noting, "We recognize that an en banc hearing is highly unusual, and we appreciate the seriousness with which the court is treating the arguments we have made."

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 government interest in preventing harm to the public.

The intervenors — the National Farmers Union (NFU), U.S. Cattlemen's Assn., American Sheep Industry Assn. and Consumer Federation of America — participated at both the district court and circuit court hearings in support of USDA's revised COOL regulation and opposing the preliminary injunction request.

NFU president Roger Johnson said, "The information required by the regulation to be provided is factual and noncontroversial. I am hopeful that the full circuit will affirm the panel's prior decision and continue to deny the preliminary injunction requested by appellants."

AMI et al. added that they support the First Amendment and "believe compelled commercial labeling must be justified by a sufficient, clearly articulated government interest such as health, safety or preventing deception. Otherwise, there is no end to the information the government could compel to be declared on labels and elsewhere."

In a press call hosted by AMI, Judy Coleman, a lawyer at Hogan Lovells, which is representing AMI and the other plaintiffs, said there are several potential responses to the compelled labeling question.

The panel could 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 sufficiency.

USDA could argue that the government may compel factual disclosures that are "reasonably related" to any interest the government "provides" or if the government has an interest in compelling the disclosure of additional information for any purpose.

The appellants could say that the government may compel factual disclosures that are tailored to advance a substantial government interest (e.g., health, safety, preventing deception), although the government may not claim an interest in compelling disclosures generally.

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

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

She added that she doesn't expect a fast turnaround on a final ruling.

"With 12 judges needing to come to a meeting of the mind, I don't expect a decision until the next several months," Coleman said.

Volume:86 Issue:21

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