A U.S. District Court judge has rejected a plea from Canada’s cattle and hog producer groups, in tandem with U.S. livestock producer and packer groups, to halt changes to the U.S. government’s country-of-origin labelling (COOL) rules.
Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia on Wednesday morning released her decision against the motion for a preliminary injunction to block changes to COOL pending the groups’ main District Court case against the label law.
The plaintiffs — including the Canadian Cattlemen’s Association and Canadian Pork Council — failed to demonstrate “either a likelihood of success on the merits (of their case) or irreparable injury” if their request isn’t granted, she wrote.
Spokesmen for the CCA and CPC weren’t immediately available to comment Wednesday. Their six U.S. co-plaintiffs were the American Association of Meat Processors, American Meat Institute, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association and Southwest Meat Association. Mexico’s National Confederation of Livestock Organizations later signed on as a co-plaintiff.
Appearing before Jackson last month, the plaintiff groups said the changes the U.S. Department of Agriculture announced in May for COOL violate the plaintiffs’ First Amendment (freedom of speech) rights under the U.S. Constitution; exceed the authority of USDA’s Agricultural Marketing Service (AMS); and violate the U.S. Administrative Procedure Act (APA). The groups also say their members will be “irreparably harmed absent a preliminary injunction.”
The groups filed for the preliminary injunction in late July, pending the outcome of their coming lawsuit against COOL, filed July 8 at the District Court.
USDA made its revisions in May after COOL, in its 2008 form, was ruled out of order by the World Trade Organization’s Dispute Settlement Body (DSB) in 2011 and WTO Appellate Body in 2012, for discriminating against Canadian and Mexican livestock and meat.
Under the May revisions, COOL’s labeling provisions for muscle cuts of meat now require covered products’ labels to include even more specific information about where each of the production steps (born, raised, slaughtered) took place. The new rule also yanked the previous rule’s allowance for commingling of muscle cuts.
Jackson on Wednesday didn’t buy into the groups’ claims of “irreparable harm.”
The plaintiffs, she wrote, had “gathered a number of defendants who are willing to speculate about the potential impact of the (revised COOL) rule on their business operations and profits, but without more than such blanket, unsubstantiated allegations of harm, there is no strength in these numbers.”
Jackson noted the plaintiffs’ declarations that after COOL was first put in place in 2008, livestock suppliers “were forced to accept significant discounts on foreign-origin cattle” — and that the suppliers “now predict that what happened before will likely happen again” and even steeper discounts will be demanded.
However, she wrote, she found the plaintiffs’ predictions significant for “what they do not say — that any of the declarants (or anyone else for that matter) suffered the kind of extreme hardship as a result of the 2009 COOL rule that could provide a factual basis” for an “irreparable harm” ruling.
Further, she wrote, those predictions don’t flow directly from the revised COOL rule, but rather are based on “independent market variables such as how the supplier’s customers and/or retail consumers might react.”
Case law, she wrote, has made clear that for an “irreparable harm” argument to succeed, the harm must result “directly” from the action the plaintiffs want to block.
Jackson also ruled Wednesday that where a law such as COOL is alleged to breach the First Amendment, case law provides an exception for a law that compels businesses to disclose “purely factual and uncontroversial information.”
Further, she wrote, where USDA’s May revisions to COOL require processors and retailers to give even more detail on the countries in which meat animals were born, raised and slaughtered, “experience and common sense dictates that there was a likelihood of consumer confusion under the prior COOL program.”
On the matter of the revised COOL rule’s ban on commingling of meat cuts, she noted, “the record clearly establishes that there was no other way for the agency to implement a production-step labelling scheme without banning commingling.”
On the groups’ claims that AMS acted arbitrarily in developing the revisions to COOL, Jackson retorts that the plaintiffs’ real grievance appears to be with the U.S. Congress for having directed the AMS to carry out Congress’ intent.
“Might not pass”
The groups also claimed the revised COOL rule to be “arbitrary and capricious” because it “exacerbates, rather than cures” the problems the WTO’s DSB and Appellate Body found.
Jackson, in her ruling, stressed that her job “is not to determine whether the (revised COOL) rule actually complies with the (WTO) Appellate Body’s ruling.”
The Canadian government is booked to request a WTO compliance panel on the revised COOL rules at the WTO DSB’s next meeting on Sept. 25.
Jackson’s ruling added it’s “conceivable that these measures might not ultimately pass muster in front of the WTO,” but she’s satisfied that the revised COOL rule “bears a rational relationship” to USDA’s goal of making COOL comply with the WTO Appellate Body’s report.
— Dave Bedard is the Daily News editor for the AGCanada.com Network in Winnipeg.
U.S. block delays Canada’s latest COOL challenge, Sept. 10, 2013
Canadian, U.S. meat industry groups take COOL to court, July 9, 2013