746 F.3d 1065 (D.C. Cir. 2014), 13-5281, American Meat Institute v. United States Department of Agriculture

Docket Nº:13-5281
Citation:746 F.3d 1065
Opinion Judge:Williams, Senior Circuit Judge.
Party Name:AMERICAN MEAT INSTITUTE, ET AL., APPELLANTS v. UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., APPELLEES
Attorney:Catherine E. Stetson argued the cause for appellants. With her on the briefs were Jonathan L. Abram, Judith E. Coleman, Mary Helen Wimberly, and Elizabeth B. Prelogar. Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, ...
Judge Panel:Before: GARLAND, Chief Judge, SRINIVASAN, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Case Date:March 28, 2014
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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746 F.3d 1065 (D.C. Cir. 2014)

AMERICAN MEAT INSTITUTE, ET AL., APPELLANTS

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL., APPELLEES

No. 13-5281

United States Court of Appeals, District of Columbia Circuit

March 28, 2014

Argued January 9, 2014

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Appeal from the United States District Court for the District of Columbia. (No. 1:13-cv-01033).

Catherine E. Stetson argued the cause for appellants. With her on the briefs were Jonathan L. Abram, Judith E. Coleman, Mary Helen Wimberly, and Elizabeth B. Prelogar.

Daniel Tenny, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., U.S. Attorney, and Mark B. Stern, Attorney.

Terence P. Stewart was on the brief for intervenors United States Cattlemen's Association, et al. in support of appellees.

Zachary B. Corrigan was on the brief for amici curiae Food and Water Watch, Inc., et al. in support of appellees.

Jonathan R. Lovvorn and Aaron D. Green were on the brief for amicus curiae American Grassfed Association, et al. in support of appellees.

Before: GARLAND, Chief Judge, SRINIVASAN, Circuit Judge, and WILLIAMS, Senior Circuit Judge.

OPINION

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Williams, Senior Circuit Judge.

In 2013 the Agricultural Marketing Service (" AMS" ), a branch of the Department of Agriculture, adopted a rule modifying its prior rule implementing Congress's requirements of country-of-origin labeling (" COOL" ). Mandatory Country of Origin Labeling, 78 Fed. Reg. 31,367 (May 24, 2013) (" 2013 rule" ). The rule requires retailers of " muscle cuts" of meat, i.e., covered meat other than ground meat (which is governed by 7 U.S.C. § 1638a(a)(2)(E)), to list (with some qualifications) the countries of origin and production steps--born, raised or slaughtered--occurring in each country. Id. at 31,367/3. The AMS's previous rule had merely required a list of the countries of origin (again with some qualifications) preceded by the phrase " Product of." Mandatory Country of Origin Labeling, 74 Fed. Reg. 2658, 2706 (Jan. 15, 2009) (" 2009 rule" ). The 2013 rule also eliminated the prior rule's allowance for commingling--a practice by which cuts from animals of different origins, but processed on the same day, could all bear identical labels.

The appellants, a group of trade associations representing livestock producers, feedlot operators, and meat packers, whom we'll collectively call American Meat Institute (" AMI" ), challenged the 2013 rule in

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district court as a violation of the COOL statute and the First Amendment. AMI moved for a preliminary injunction halting enforcement, and the district court denied the motion. Agreeing with the district court that AMI is unlikely to succeed on the merits of its claims, and believing that any error in the district court's balancing of the other factors governing issuance of a preliminary injunction could not on these facts outweigh the likely outcome on the merits, we affirm.

* * *

The COOL statute, 7 U.S.C. § 1638a, adopted in 2008, assigns retailers an obligation to inform consumers of a cut's country of origin. This may be quite complicated where an animal was born, raised, and slaughtered in more than one country. Id. § 1638a(a)(2). The statute sets forth four categories of muscle-cut meat and how to determine the country of origin depending on the locale of the production steps:

(A) United States country of origin [.] A retailer . . . may designate the covered commodity as exclusively having a United States country of origin only if the covered commodity is derived from an animal that was . . . exclusively born, raised, and slaughtered in the United States . . . .

(B) Multiple countries of origin [.] A retailer of a covered commodity . . . that is derived from an animal that is (I) not exclusively born, raised, and slaughtered in the United States; (II) born, raised, or slaughtered in the United States, and (III) not imported into the United States for immediate slaughter, may designate the country of origin of such covered commodity as all of the countries in which the animal may have been born, raised, or slaughtered. (C) Imported for immediate slaughter [.] A retailer of a covered commodity . . . that is derived from an animal that is imported into the United States for immediate slaughter shall designate the origin . . . as . . . the country from which the animal was imported; and . . . the United States. (D) Foreign country of origin [.] A retailer of a covered commodity . . . that is derived from an animal that is not born, raised, or slaughtered in the United States shall designate a country other than the United States as the country of origin . . . .

Id. (emphases added). The parties call meat covered by § 1638a(a)(2)(A) " Category A meat," that covered by § 1638a(a)(2)(B) " Category B meat," and so on. The COOL statute also requires the Secretary of Agriculture to " promulgate such regulations as are necessary to implement" the statutory regime. Id. § 1638c(b).

The 2009 rule did not demand explicit identification of the country for each of the three production steps--born, raised and slaughtered. It called more simply for labeling with a phrase starting " Product of," followed by mention of one or more countries. 7 C.F.R. § 65.400 (2010). So Category A meat would be labeled, " Product of the United States" ; Category B meat would be labeled, " Product of the United States and X" ; Category C meat would be labeled, " Product of X and the United States" ; and Category D meat would be labeled " Product of X." See id.; see also id. § 65.300 (2010).

The 2009 rule also made allowance for a production practice known as " commingling." This occurs when a firm processes meat from animals with different countries of origin on a single production day. 7 C.F.R. § 65.300(e)(2), (e)(4) (2010). The rule allowed retailers to label commingled meat cuts with all the countries of origin for all the commingled animals. As a result,

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Category A meat processed on the same day as Category B or C meat could be labeled " Product of United States and X." Id.

In the year of the 2009 rule's adoption, Canada and Mexico filed a complaint with the Dispute Settlement Body of the World Trade Organization, which found the rule to be in...

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