An appeal court in Washington is pondering an 83-page
submission by Canadian and U.S. beef and pork industry stakeholders who object
to proposed regulations for mandatory Country of Origin Labeling (COOL).
The lawyers argue that the Agricultural Marketing Service
has no right to impose the regulations, that it will be too costly to implement
and that it will be a violation of the U.S. government’s international trade
obligations.
The lawyers say the Agricultural Marketing
Service (AMS), which is part of the U.S. Department of Agriculture, is wrong in
claiming that the proposals are “to correct misleading speech and prevent
consumer deception” stemming from the 2009 version of the AMS rule.
The rule doesn’t contain the words “deception”
or “misleading,” they argue.
What the proposals are really all about is
trying to bring the U.S. into compliance with World Trade Organization (WTO)
acceptance. The WTO ruled that the U.S. regulations for COOL breached its trade
obligations because it was unfair to imported cattle and hogs. Canada and
Mexico filed the appeal to the WTO.
Canada and Mexico are now asking the WTO to
rule whether the U.S. proposals are appropriate; they claim they are even worse
that the current regulations that the WTO has ruled illegal.
In the meantime, they sought a court injunction
to prevent the AMS from implementing its proposals. It failed to gain that
injunction, so the current court case is an appeal.
“Even putting aside the absurdity of a
government agency referring to itself as an agent of ‘deception,’ the District
Court should have rejected AMS’s belated declaration because it was a plainly
impermissible post hoc rationalization. Yet the District Court accepted it
anyway,” the 83-page legal brief reads.
In addition, the groups argue that the AMS’s
authority is limited to labeling, yet the proposals deal with mingling of meat
from animals born in the U.S. or another country.
The brief also says that the final rule
violates the First Amendment (which provides the constitutional right to free
speech) in that the government is compelling speech.
“Appellants’ members are being irreparably
injured, right now,” the groups argue in the brief. Canada’s pork producers say it is costing them $1 billion a
year and beef producers say it’s costing them $640 million a year.
“They will be injured to an even greater extent
once AMS begins enforcing the Final Rule on November 24, 2013.
“Some may even face enforcement penalties of
$1,000 per violating product. This Final Rule should never have issued. Now it
should be enjoined,” the brief says.
