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U.S. appeal court won’t block COOL for livestock groups

Canadian, U.S. and Mexican livestock producer and processor groups, seeking an injunction to block the U.S. government’s latest version of its country-of-origin labelling (COOL) rule, won’t get it from their latest appeal.

The U.S. Court of Appeals, District of Columbia circuit, on Friday affirmed a U.S. District Court ruling last September which rejected the injunction request from the livestock and meat groups. Said groups include, among others, the Canadian Cattlemen’s Association, Canadian Pork Council and, as lead plaintiff, the American Meat Institute (AMI). [Related story]

The groups originally filed for a preliminary injunction last July, pending the outcome of their separate lawsuit against COOL, also filed in July at the District Court.

USDA made revisions to COOL last May, after the rule, 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. [Related story]

The appeal court, which heard the groups’ case in January, agreed with the district court that the AMI and co-plaintiffs were “unlikely to succeed on the merits of (their) claims.”

Senior Circuit Judge Stephen Williams, writing for the appeal court on Friday, said the court was “not persuaded” by AMI’s claim that the U.S. Department of Agriculture’s new COOL rule “alters production practices (commingling) over which the COOL statute gives (U.S. Ag Secretary Tom Vilsack) no authority.”

The appeal court also rejected AMI’s claim that the new COOL rule’s tightened requirements for “production-step” labelling were “both outside of and contrary to the plain language of the COOL statute.”

On commingling, the appeal court found the 2013 COOL rule “does not actually ban any element of the production process” but just requires meat cuts to be “accurately labelled with the three phases of production named in the statute,” including where the animal was born, raised and slaughtered or “harvested.”

Changes to meat production under the 2013 COOL rule “are, to be sure, costly for the packers,” Williams wrote, but the new rule doesn’t “force” segregated handling, “except in the sense that compliance with any regulation may induce changes in unregulated production techniques that a profit-seeking producer would not otherwise make.”

Williams also shot down AMI’s claim that the COOL statute only authorizes USDA’s Agricultural Marketing Service (AMS) to require a list of countries of origin, not a breakdown of which production step occurred where.

The statue, he wrote, “ubiquitously invokes distinctions between three phases of production” so the agency’s choice to order production-step labelling “appears reasonable.”

“Non-frivolous values”

AMI’s claim that making the disclosures required under the 2013 COOL rule “violates its First Amendment rights” (freedom of speech) was also rejected. The rule, Williams wrote, “restricts speech only in the sense of requiring a disclosure” that’s “purely factual and non-controversial.”

The appeal court, Williams added, can see “non-frivolous values” in the information on COOL-mandated labels, beyond AMI’s claim that the COOL rule “merely satisfies consumers’ curiosity.”

“Obviously (the COOL rule) enables a consumer to apply patriotic or protectionist criteria in the choice of meat,” Williams wrote. “And it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.”

The appeal court, he added, also must consider the “public interest factor” in allowing the U.S. government’s effort to comply with the WTO ruling on COOL to take effect. The court, Williams wrote, is “clearly in a poor position to assess the effects of any noncompliance.”

Apart from the CCA, CPC and AMI, the plaintiffs in the case included the American Association of Meat Processors, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association and Southwest Meat Association, plus Mexico’s National Confederation of Livestock Organizations.

The CCA is “obviously disappointed in the ruling as it means that Canadian beef farmers will continue to lose hundreds of millions of dollars due to the ongoing discriminatory effect of this law on livestock trade,” the association’s director of government and international relations, John Masswohl, said in an email.

Canadian Pork Council chairman Jean-Guy Vincent, in a statement Friday, said the council has been taking part in this court case in the hope that “a more expeditious and effective resolution of the matter could be achieved.”

However, he said, it’s still “essential” that there be legislated change for the U.S. to come into compliance with its WTO obligations on COOL, and the council’s “primary focus” is is for Canada to prevail in its case against COOL before the WTO’s compliance panel.

The Canadian government made its case to the compliance panel last month and a ruling is expected in June, Masswohl noted.

Vincent reiterated that for the U.S. to fail to accept a result favourable to Canada and make WTO-consistent amendments to the COOL measure “could lead to retaliatory tariffs against U.S. exports.” — Network


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