The U.S. Department of Agriculture (USDA) adopted a country-of-origin labeling (COOL) rule that requires retailers of certain meats to identify each country in which the production steps for the meat—born, raised, or slaughtered—occurred. The American Meat Institute and other trade associations (collectively, AMI) challenged the rule, contending, among other things, that the rule violates companies’ First Amendment rights not to speak. AMI moved for a preliminary injunction enjoining enforcement of the rule, and a federal district court denied the motion. A panel of the D.C. Circuit affirmed, holding in part that the First Amendment challenge was subject to rational-basis review under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The panel concluded that Zauderer applies to mandatory commercial disclosures that further any permissible government purpose, not just those aimed at preventing consumer deception. Applying Zauderer, the panel determined that AMI failed to show a likelihood of success on the merits.
The D.C. Circuit took the case en banc and asked for supplemental briefing on the question whether, under the First Amendment, mandatory disclosure of purely factual and uncontroversial commercial information, compelled for reasons other than preventing deception, can be examined by applying Zauderer, or whether such compelled disclosure is subject to review under an intermediate-scrutiny standard set forth in Central Hudson Gas & Electric v. Public Service Commission, 447 U.S. 557 (1980). In July 2014, the en banc Court held that Zauderer‘s test for assessing the constitutionality of commercial disclosure requirements is not limited to requirements aimed at correcting misleading or confusing commercial speech. It then applied Zauderer to uphold the COOL rule based on the government’s longstanding interest in providing consumers with information to facilitate their choice of American-made products, consumers’ interest in the country of origin of food products, and the potential health concerns or market impacts that could arise after a food-borne illness outbreak.
Public Citizen Litigation Group was co-counsel in the en banc proceedings for amici Food & Water Watch, et al., in support of the USDA and affirmance.