July 26, 2013
The ongoing effort to block final rule changes to USDA's country-of-origin labeling (COOL) program heated up Thursday (July 25) when nine U.S., Canadian and Mexican meat and livestock organizations filed supplemental information in support of a request for a preliminary injunction to halt implementation of the final rules until the full lawsuit is heard.
At issue are COOL final rules proposed by USDA May 24 designed to bring the original labeling program into compliance with World Trade Organization (WTO) requirements. The final rules included changes involving labeling information about where an animal is born, raised, slaughtered and processed.
But the final rules prompted quick response from a number of meat and livestock organizations that charged those rules would make labeling more complicated, costly and would be unfair and discriminatory against Canadian and Mexican meat and livestock companies without providing any additional security to U.S. consumers.
U.S. Agriculture Secretary Tom Vilsack said his agency plans on implementing the final rules in November, but if a preliminary injunction is granted, the rules could not go into effect until the lawsuit is resolved. The court has not yet set a specific timeline or court date for hearings on that lawsuit.
In the information filed July 24, the groups argue the injunction should be granted because they believe a high likelihood exists for success of their case and that enforcement of the rule would cause irreparable harm to the industry and have severe economic impacts that are not in the public interest before the case can be resolved.
Plaintiffs include the American Association of Meat Processors, American Meat Institute, Canadian Cattlemen’s Association, Canadian Pork Council, National Cattlemen’s Beef Association, National Pork Producers Council, North American Meat Association, Southwest Meat Association and Mexico’s National Confederation of Livestock Organizations, which joined the lawsuit this week.
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The plaintiffs specifically assert that they “are very likely to succeed on the merits and the Final Rule will likely be vacated." But if it is not enjoined in the meantime, "the Final Rule will irreparably harm meat-industry participants." Plaintiffs are trade organizations that represent regulated entities facing immediate and substantial burdens and costs under the Final Rule, according to arguments in the information submitted July 24.
The injunction request follows the complaint and outlines the burden to the plaintiffs’ First Amendment speech rights; explains that the rule exceeds the authority granted to
USDA in the 2008 farm bill; and demonstrates that the rule is arbitrary and capricious, offering little benefit to consumers while fundamentally altering the meat and poultry industry.
Arbitrary and capricious
The plaintiffs further assert that “the Agricultural Marketing Service (AMS) does not claim that the new ‘Born, Raised, and Slaughtered’ disclosures are related to ‘protecting consumers from commercial harms.’” Documents filed with the court this week claim that in AMS’s own words “the COOL program is neither a food safety or traceability program.”
The request also states that “The agency … appears ambivalent at best about the actual value of this information to consumers. But the First Amendment does not permit the government to resolve a tie in favor of compelling speech: ‘If the First Amendment means anything, it means that regulating speech must be a last—not first—resort.’”
Because of these factors, the latest documents ask for an immediate injunction against implementation of the COOL Final Rule during the pendency of the litigation.
“The Canadian Cattlemen's Association (CCA), along with these groups and through other actions, will continue to turn up the heat on USDA to get the COOL dispute resolved,” said CCA President Martin Unrau. “While this lawsuit and preliminary injunction have the potential to bring down COOL, ultimately, we would be satisfied if the U.S. Congress would pass an amendment to the COOL legislation to eliminate the discrimination on imported livestock and meat.”
Last month, the Government of Canada released a list of U.S. commodities that could be targeted for retaliation in relation to the COOL dispute. The Government of Canada has said it could seek retaliatory compensation of approximately $1.1 billion following the completion of ongoing World Trade Organization (WTO) proceedings, which will move forward independently of this U.S. based litigation.
“CCA is encouraging the Government of Canada to seek authorization to implement those tariffs by obtaining a WTO ruling that the U.S. has not complied with the WTO dispute panel decision that COOL causes discrimination against imported cattle in the U.S. marketplace,” Unrau said.
USDA proposed the new rule in March after the World Trade Organization (WTO) ruled in response to a complaint by Canada and Mexico that the existing country-of-origin labeling requirements violated the U.S. WTO obligations. In what was termed a highly illogical move by plaintiffs in the lawsuit, USDA made COOL requirements even more complex and discriminatory against foreign meat and livestock, and Canada and Mexico have already made clear that the new rule does nothing to ease the concerns that prompted their original complaint.
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