The First Amendment of the U.S. Constitution protects the right to free speech. It also protects against the government compelling speech, except when such compelled speech serves a substantial government interest, say the attorneys heading a challenge to the USDA’s new mandatory country of origin labeling (COOL) rules for meat.

Groups file suit, say COOL rule violates U.S. ConstitutionPlaintiffs in the suit, filed Monday in the United States District Court for the District of Columbia, include the American Association of Meat Processors, American Meat Institute (AMI), Canadian Cattlemen’s Association, Canadian Pork Council, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association, and Southwest Meat Association.

In a Tuesday news conference, AMI’s senior VP of regulatory affairs and general counsel Mark Dopp provided some background on the COOL issue. In 2002, he said, mandatory COOL was included in the Farm Bill, and USDA published a rule in 2003. Implementation was delayed for years, and Congress amended the rule in the 2008 Farm Bill. The final rule took effect in 2009, and in that same year Canada and Mexico filed a grievance with the World Trade Organization (WTO). In 2011 a WTO panel ruled in favor of Canada and Mexico and in 2012 the WTO Appellate Body supported that ruling, finding the COOL rule in violation of previous trade agreements, and set a May 2013 deadline for the United States to bring the rule into compliance.

In March, USDA proposed a new rule, which the groups say closely resembles the original, burdensome rule from 2003. The rule became final in May after a public-comment period, essentially unchanged from the proposed version.

The rule, which USDA intended to phase in over six months, requires muscle-cut labels to declare country of origin for three production steps: where the animal was born, raised and slaughtered. This provision, the plaintiffs say, places undue burdens on some producers and processing plants, and requires segregation of animals and meat through the production chain.

Even that requirement is complicated by several exemptions, since it covers only muscle cuts and not processed or ground cuts. Dopp provided an example of two hogs, both raised on the same Minnesota farm. One was shipped as a piglet from Canada, the other brought from Iowa at the same stage. At slaughter, muscle cuts from one would require a label saying “Born in Canada, raised and Slaughtered in the United States.” The other would be labeled as “Born, raised and slaughtered in the United States.” If however, some of the pork from either animal is packaged in a marinade or turned into bacon, it is exempt from the labeling law. Meat companies could voluntarily label the products, from either animal, as “Product of the United States.”

In another example, Dopp says beef from two animals, both finished in the same Texas feedyard and slaughtered in the same Texas plant, could not be packaged together if one of the animals was born in Mexico.

Kate Stetson, partner with the law firm Hogan Lovells outlined the grounds for the lawsuit in three areas:

  1. The rule violates the U.S. Constitution by constituting “compelled speech.” 
  2. The rule violates the Agriculture Marketing Act because it exceeds the authority granted to USDA in the 2008 Farm Bill.  While Congress mandated COOL, the statute does not permit labels that detail where animals were born, raised and slaughtered.
  3. The rule is arbitrary and capricious, and will fundamentally alter the meat industry and pick winners and losers in the marketplace with no benefit to anyone, and at great harm to many meat companies, especially those located along U.S.-Mexico or U.S.-Canada borders.

The AMI website has more information and a link to the Power Point presentation used in the news conference.