Country-of-origin labeling may lose at the WTO, but a recent appeals court ruling on COOL threatens the livestock industry's economic viability.

CHARLESTON, SC – The meat industry's unsuccessful attempts to get an injunction against implementation of federal country-of-origin labeling (COOL) laws may have opened a back door to the industry's adversaries, said Steve Kay, editor of Cattle Buyers Weekly and Meat&Poultry contributor. Kay's comments came during the 2014 NAMA Outlook Conference in Charleston, SC, Sept. 11-14.

Kay’s remarks were part of a panel session on sustainability in the meat industry. A key component of sustainability is economic viability, and the way industry does business, transparency and its public image are crucial to the sustainability of the meat industry, Kay said.

“The cost of doing business keeps going up every year,” Kay said. Part of the cost of doing business comes from regulatory compliance, and the industry has been busy trying to beat back expanding federal regulation. The most recent example has been the National Cattlemen’s Beef Association’s battle with the US Environmental Protection Agency’s proposal to expand the definition of Waters of the United States. The proposed rule would have broadened EPA’s authority over state and federal waters.

By a 262-152 vote, the US House of Representatives passed HR 5078 Waters of the United States Regulatory Overreach Protection Act of 2014, which would block EPA from implementing the new rule. But a threat to the sustainability of the meat industry remains in the form of country-of-origin labeling.

In late July, an en banc panel of judges with the US Court of Appeals for the District of Columbia upheld government rules requiring country-of-origin labels on packaged steaks, ribs and other cuts of meat to inform consumers where the animals were born, raised and slaughtered. But the ruling went beyond allowing the US Department of Agriculture to implement COOL, Kay argued.

The appellate court's ruling on COOL "did a very, very significant thing," Kay said. The injunction was about the First Amendment and Constitutional rights. Industry testified in court that COOL goes beyond congressional intent and force meat producers to provide information about their products without "directly advancing a government interest".

But the judges' ruling "laid down a legal justification for compelled speech," Kay said, which could later be used by activist groups as a weapon against the livestock industry. Cattle feed practices, environmental impact and union and wage status of workers could become public fodder for meat industry foes to turn against the industry.

Kay cited a dissenting opinion written by Judge Janice Rogers Brown: “Of course the victors today will be the victims tomorrow because the standard created by this case will virtually ensure the producers supporting this labeling regime will one day be saddled with objectionable disclosure requirements (perhaps to disclose cattle feed practices; how their cattle are raised; whether their cattle were medically treated and with what; the environmental effects of beef production; or even the union status or wage levels of their employees).

“Only the fertile imaginations of activists will limit what disclosures successful efforts from vegetarian, animal rights, environmental, consumer protection, or other as-yet-unknown lobbies may compel,” she said.

"One can only imagine at some point in the future, they're going to compel, or attempt to compel, Congress to pass a law [forcing industry] to reveal every conceivable practice in livestock production," Kay concluded.