In a 9-2 en banc decision, the District of Columbia Circuit has affirmed an earlier panel decision that the U.S. Department of Agriculture (USDA) can require meat producers to include country-of-origin labeling (COOL) on their packaging. Am. Meat. Inst. v. USDA, No. 13-5281 (D.C. Cir., order entered July 29, 2014). The First Amendment allows for such required disclosures because the government’s interest is sufficient, the court found. Additional information on the American Meat Institute’s constitutional challenge and the D.C. panel’s decision appears in Issues 518 and 520 of this Update.

In its discussion, the court interpreted the U.S. Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) to reach beyond mandated commercial labeling necessary to correct deception to include the “factual and uncontroversial disclosures required to serve other government interests” at issue in the COOL context. The language in Zauderer “sweeps far more broadly than the interest in remedying deception,” the court found. “To the extent that other cases in this circuit may be read as holding to the contrary and limiting Zauderer to cases in which the government points to an interest in correcting deception, we now overrule them.”

The court then assessed whether the government had a sufficient interest in COOL that it could require meat producers to include the labels, and it found that several aspects combine to provide USDA with a substantial interest, including: “the context and long history of country-of-origin disclosures to enable consumers to choose American-made products; the demonstrated consumer interest in extending [COOL] to food products; and the individual health concerns and market impacts that can arise in the event of a foodborne illness outbreak.” The court also found that the mandatory COOL disclosure is a “reasonable fit” with the government’s interest in supplying the information to consumers. In concurring opinions, one judge clarified the relationship between Zauderer and other commercial-speech principles, while another judge emphasized his belief that the government interest in supporting American farmers, ranchers and manufacturers is alone sufficient to sustain the constitutional challenge.

In a dissent, one judge accused the majority of “delirium on a pogo stick” by misinterpreting Zauderer, relaxing the standard of review to below even the most lenient and deferential standard and ignoring the “clear trajectory” of the U.S. Supreme Court’s jurisprudence on commercial speech. “What began as robust protection from government coercion has now been reduced to an eerie echo of a supermarket tabloid’s vacuous motto: the government may compel citizens to provide, against their will, whatever information ‘[i]nquiring minds want to know!’” Zauderer, she wrote, is limited to correcting deception because requiring advertisers to provide more information than they may otherwise present is “constitutionally permissible when the government’s available alternative is to completely ban that deceptive speech.” She further argued that the government’s interest was not substantial for requiring COOL; for example, any valid interest identifying in American-made goods, she said, would be met by producers understanding the value of this information to consumers and voluntarily providing “Made in the USA” labeling to boost sales. The court’s decision “hacks the First Amendment down to fit in the government’s hip pocket,” she concluded. “I will not join the carnage.”