– Ellen Essman, Law Fellow, OSU Agricultural & Resource Law Program
On June 19, 2017, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) and the Cattle Producers of Washington (CPoW) sued the United States Department of Agriculture (USDA) and the Secretary of Agriculture, Sonny Perdue, over the legality of the current country of origin labeling (COOL) regulations. R-CALF USA and CPoW claim that USDA’s current COOL regulations do not require foreign beef and pork products to be labeled as such, and that in fact, the regulations allow the foreign meat to “be passed off as domestic products.” This, they argue, hurts U.S. cattle and hog producers, as well as U.S. consumers. The suit was filed in the U.S. District Court for the Eastern District of Washington, in Spokane. In short, R-CALF USA and CPoW are asking the court to rule that the current COOL regulations are at odds with two federal laws: the Meat Inspection Act and the Tariff Act.
Federal laws relating to Country of Origin Labeling
According to R-CALF USA and CPoW, two laws—the Meat Inspection Act and the Tariff Act—must be taken into account when thinking about COOL. R-CALF USA and CPoW argue that read together, these two laws require imported meat from cattle and hogs to possess country of origin labels.
The Meat Inspection Act, at 21 U.S.C. §620(a), says that imported meat must “be marked and labeled as required by such regulations for imported articles.” “[R]egulations for imported articles” are governed by the Tariff Act. The Tariff Act, in 19 U.S.C. §1304(a), states that “every article of foreign origin (or its container…) imported into the United States shall be marked in a conspicuous place…in such a manner as to indicate to an ultimate purchaser in the United States the English name of the country of origin of the article.”
Regulatory history
In the lawsuit, the parties argue that historically, USDA pork and beef regulations did not follow their understanding of the Meat Inspection and Tariff Acts, discussed above. In other words, the regulations did not require COOL. The 2002 Farm Bill changed that. The parties say that the 2002 Farm bill had the “primary effect of requiring” COOL on meat products from animals imported into the U.S. and subsequently slaughtered after importation.
Following the Farm Bill’s lead, USDA changed its regulations concerning meat imported into the U.S. from other countries, including meat from hogs and cattle. The regulation, found in 7 C.F.R. § 65.300, was finalized in 2009. It stated that meat “derived from an animal that was slaughtered in another country shall retain [its] origin, as declared to the U.S. Customs and Border Protection at the time the product entered the United States, through retail sale,” or sale to the end consumer. Therefore, COOL was required on meat imported into the U.S. The regulation also allowed for the “origin declaration” on labels to “include more specific location information related to production steps.” This meant that the labels for beef and pork could include where the animals were born, raised, and slaughtered.
World Trade Organization decision and change to regulations
After the new COOL regulations went into place, they were challenged by Canada and Mexico. The World Trade Organization (WTO) ultimately sided with Canada and Mexico. WTO’s reasoning for this decision is outlined in a Congressional Research Service Report on the dispute, and was based on their finding that “COOL treats imported livestock less favorably than U.S. livestock.”
Following the WTO decision, Congress determined that beef and pork—both alive and slaughtered—no longer required COOL. Similarly, USDA removed meat from cattle and hogs from its COOL regulations. These actions, the parties argue, went too far. R-CALF USA and CPoW argue that the WTO decision only involved cattle and hogs that were imported live, as opposed to imported meat.
It is important to note that a number of other foods are still required to have COOL, including lamb, goat, chicken, farm-raised fish and shellfish, fresh and frozen fruits and vegetables, peanuts, pecans, macadamia nuts, and ginseng. More information on COOL can be found here.
R-CALF USA and CPoW’s argument
Ultimately, the parties argue that USDA went too far when they removed all meat from cattle and hogs from their COOL labeling requirements. They argue that the WTO decision focused on live hogs and cattle, as opposed to meat from those animals, and that WTO never “call[ed] into question the marks and labels required by the Tariff Act” for meat. Thus, they argue that USDA regulations should continue to follow the Meat Inspection and Tariff Acts, as they did following the 2002 Farm Bill.
R-CALF and CPoW claim that as a result of USDA’s far-reaching retraction of COOL regulations, “beef and pork from animals in other countries” is permitted to have the “same labels as domestic meat.” They claim that now, “imported beef and pork can even be labeled a ‘Product of the U.S.A.’” As a consequence of this type of labeling, the parties claim that both U.S. consumers and producers are harmed.
Conclusion
R-CALF and CPoW’s lawsuit heavily relies on the authority of the Tariff Act and the Meat Inspection Act. Their argument, in its most basic form, is that the two laws require COOL for beef and pork, and that the WTO decision did not ever call those two laws into question. Therefore, they feel that the change in regulations went further than was necessary to comply with the WTO decision.
The defendants named, USDA and Secretary Sonny Perdue, have not yet filed their response to the lawsuit.
R-CALF USA and CPoW’s lawsuit can be read here.