AMI Appeals District Court’s Denial of Preliminary Injunction against COOL Regulations

By Riëtte van Laack –

As previously reported, the American Meat Institute (“AMI”) and several international meat industry organizations filed a lawsuit in an effort to stop the Agricultural Marketing Service ("AMS") of the USDA from implementing the Country of Origin Labeling ("COOL") rule.  On September 11, 2013, Judge Ketanji Jackson of the U.S. District Court for the District of Columbia denied the motion for preliminary injunction.

Not surprisingly, AMI et al. appealed this denial and requested an expedited briefing schedule.  Pursuant to the expedited schedule, appellants’ 61-page opening brief was filed on September 23, 2013. 

AMI et al. contend that COOL violates the First Amendment because it compels speech in the form of a label that does not advance a government interest.  They claim that the District Court applied the incorrect standard for the analysis of their free speech argument.  They argue that, as AMS suggests, some individual consumers might be interested in the additional information provided by the detailed statement about where an animal is born, raised, and slaughtered is insufficient to balance the burden of the new regulation.  There is no evidence that the alternative labeling statement, i.e., a statement that merely lists the countries without specifying what phase of the production took place in those countries, is misleading.  Moreover, until recently, AMS did not claim that such a labeling statement was misleading.  In fact, the COOL regulations for ground meat and other commodities allow such statements. 

Appellants further argue that AMS’s elimination of the allowance for commingling muscle cuts from different countries in the COOL regulation is outside AMS’s jurisdiction.  (Commingling occurs when a processor processes meat from animals with different countries of origin in a single production day, or when a retailer offers meat products with different countries of origin in the same retail case.)  The COOL statute concerns labeling and does not authorize the AMS to regulate (i.e., prohibit) production practices.  Moreover, this prohibition is particularly onerous for U.S. meat processors that are located near the border of Mexico and Canada.  The elimination of this allowance will require strict segregation procedures requiring a restructuring of the business. 

The Appellees’ and Intervenor Appellees’ briefs are due on October 23, 2013.  Although oral arguments have not yet been scheduled, Appellants requested scheduling as soon as possible after they file their reply brief, due Nov. 1, 2013 (presumably before the November 24, 2013 date on which AMS plans to start enforcing the COOL regulation).

Meanwhile, in light of the uncertainty of the future of the COOL regulation, AMI requested that AMS delay the implementation of the COOL regulation.