Today the DC Circuit vacated (per curiam) its previous three-judge panel decision on March 28 (American Meat Institute v. Dep’t of Agriculture, No. 13-5281, Slip Op. at 14, n.1 (D.C. Cir. Mar. 28, 2014), and decided to rehear this case en banc. (See also Andrew Zajac, Meat Labeling Case to Be Reheard by Full U.S. Appeals Court, BNA (Bloomberg) (Apr. 4, 2014)).
The March 28 decision gave a quite succinct summary of the COOL history, as follows:
The COOL statute, 7 U.S.C. § 1638a, adopted in 2008, assigns retailers an obligation to inform consumers of a cut’s country of origin. (…)The statute sets forth four categories of muscle-cut meat and how to determine the country of origin depending on the locale of the production steps: (A) United States country of origin… (B) Multiple countries of origin … (C) Imported for immediate slaughter … (D) Foreign country of origin …
The 2009 rule did not demand explicit identification of the country for each of the three production steps—born, raised and slaughtered. It called more simply for labeling with a phrase starting “Product of,” followed by mention of one or more countries. 7 C.F.R. § 65.400 (2010). So Category A meat would be labeled, “Product of the United States”; Category B meat would be labeled, “Product of the United States and X”; Category C meat would be labeled, “Product of X and the United States”; and Category D meat would be labeled “Product of X.” (...)
In the year of the 2009 rule’s adoption, Canada and Mexico filed a complaint with the Settlement Body of the World Trade Organization, which found the rule to be in violation of the WTO Agreement on Technical Barriers to Trade. 2013 rule, 78 Fed. Reg. at 31,367/2. The gravamen of the WTO’s ruling appears to have been an objection to the relative imprecision of the information required by the 2009 rule. See Appellate Body Report, United States—Certain Country of Origin Labelling (COOL) Requirements, ¶ 343, WT/DS384/AB/R (Jun. 29, 2012). (...)
The 2013 rule increased the required level of precision. Now, except for Category D meat, each country of origin would generally be preceded by the production step that occurred in that country. Id. at 31,385/3. For instance, instead of saying, “Product of the United States,” a label for Category A meat will now read, “Born, Raised, and Slaughtered in the United States.” Id. Similarly, Category B meat might now have to be labeled, “Born in X, Raised and Slaughtered in the United States,” and Category C meat “Born and Raised in X, Slaughtered in the United States.” Id. (…)
The plaintiff, American Meat Institute (AMI), argued that this 2013 rule, which the U.S. government issued in compliance with the Appellate Body decision on June 29, 2012, violated its First Amendment rights because the rule compelled meat producers and meat packers to make onerous disclosures. Originally, the three-judge panel in the DC Circuit rejected the AMI’s argument (on March 28) by opining that the information that the 2013 rule required to disclose is “non-frivolous” and “purely factual and non-controversial.”
Today, the DC Circuit tossed out this ruling and decided to rehear the case on May 19, 2014.
Incidentally, Canada (the original complainant in the WTO COOL case) refused to accept the U.S. 2013 rule as a compliance measure. In fact, Canada argued that the 2013 rule is worse than the original measure: more restrictive and causing more harms to its meat exporters! A compliance panel under DSU Articles 21.5 was composed on Sep. 27, 2013.
This is a fascinating case in which a WTO dispute is tangled with a domestic litigation. An important question here is whether rulings from these two different tribunals (the WTO Appellate Body and the U.S court) would ever cohere. Or should they cohere? If so, what can (should) be done to secure such coherence?
