The Canadian livestock industry will receive an unexpected chance to fight U.S. country-of-origin meat labelling May 19 — this time using the American constitution.
The controversial legislation will be considered on the basis of freedom of speech under the U.S. constitution’s first amendment.
Last week, the U.S. Court of Appeals vacated a ruling made March 28 that denied a request from U.S. and Canadian meat and livestock groups to prevent application of COOL rules.
A full panel of 11 judges on the U.S. Court of Appeals will now consider whether COOL violates the first amendment or is legal under various precedents.
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“We are encouraged that we get another crack at this,” said John Masswohl, the Canadian Cattlemen’s Association director for government and international relations.
The CCA and the Canadian Pork Council are plaintiffs in a lawsuit filed last July. The suit is led by the American Meat Institute and also includes other American and Mexican meat and livestock groups.
It is rare for the full U.S. Court of Appeals panel of judges to hear a case. The constitutional angle gives it further prominence.
“The rareness of it, it’s getting a lot of attention from the legal community, but I think more substantively because they’re really expected to focus on the first amendment constitution argument, that’s really going to take on a lot of additional significance,” Masswohl said.
Other groups will have the opportunity to file amicus briefs before the hearing, which might draw submissions and arguments from factions with an interest in free speech rather than meat labelling rules.
The court will consider whether rules that compel meat processors to label products with information on where animals were born, raised and slaughtered is a form of compelled speech allowed under the first amendment.
Such compelled speech is allowed when health or safety concerns are involved, such as forcing tobacco companies to label their products.
However, plaintiffs will argue that precedent does not apply to meat labels.
“In this case, there is no health or safety reason for compelling the origin,” said Masswohl.
“So … does the court believe that the U.S. government has the ability to violate the constitution, to tell information on where products are produced, just because some people are curious about that? The freedom not to speak is as important as the freedom to be able to speak.”
However, Masswohl said the U.S. Department of Agriculture has now raised a different constitutional precedent in its defence of COOL.
It said government can compel speech to prevent fraud and deception, a precedent it said would apply to labelling.
Masswohl said the USDA has not raised that line of defence until now.
“We’re not aware that there is any fraud or deception that COOL is intended to remedy,” he said.
“In fact, you could argue that something like this creates more opportunity for fraud and deception.”
The American Meat Council said it was encouraged by the decision to allow a full court to hear the case again.
“We remain hopeful that consideration of the case by the full court will lead to an injunction against the protectionistic and costly country-of-origin labelling rule that is hurting livestock producers and meat companies while offering little benefit to consumers,” it said in an April 4 statement.
COOL is estimated to have cost Canadian cattle and hog producers at least $1 billion per year since it was implemented.
An appeal through the World Trade Organization is also in progress.
