COOL seems to be a ‘stand your ground’ event in the beef business. Asking the industry to label a piece of meat to reflect country of origin has caused every organization with some skin in the game to choose up sides. The first shot was fired on July 8 by the National Cattlemen's Beef Association, North American Meat Association, American Meat Institute, Canadian Cattlemen's Association, Mexico's National Confederation of Livestock Organizations and four other groups seeking an end to COOL. It's too cumbersome and costly and serves no compelling government interest, they said.
R-CALF-USA quickly returned fire. An angered Bill Bullard responded with some of his fiery-as-usual language, demanding that COOL be implemented without further delay. You can read my July 19 interview with him by clicking here. I asked representatives of several of the organizations that filed the suit to block the implementation of COOL if they would answer a few similar questions but they demurred, saying they would wait for the court to decide on the issue.
The defense of COOL expanded significantly just a few days ago when the United States Cattlemen's Association (USCA) in conjunction with the National Farmers Union, American Sheep Industry Association and the Consumers Federation of America, filed with the District Court in Washington, D.C. a motion to intervene in the lawsuit. Taking up some heavier artillery, USCA also announced they would begin touring the countryside later this month, "meeting with cattle producers to discuss the issues of importance to the U.S. cattle industry." The hot issue, of course, would be COOL.
There was some immediate opposition to the motion, of course, from both the government as well as the original plaintiffs. A court decision came quickly and it was in USCA’s favor. Jon Wooster, USCA President, welcomed the decision to permit his alliance to intervene. "Plaintiffs had filed a partial opposition to our motion to intervene, opposing our participation in the preliminary injunction but taking no position on our participating in the part of the litigation that deals with the merits. The court's order granting our motion to intervene makes clear that we can participate at the preliminary injunction hearing as well as in the remainder of the litigation."
A press release issued on Friday, August 9, by USCA Executive Vice President Jess Peterson said "USCA is firmly committed to ensuring that COOL remains the law of the land."
To defend COOL, he announced this schedule for the "COOL in the Country Tour." Just a guess but I doubt notorious vegetarian Carrie Underwood will be invited to be the opening act.
- August 19th (Noon): Faith Livestock Market-Rollover Sale (Faith, SD)
- August 21st (5:30pm): Dean's Steakhouse-Fundraiser Dinner (Mandan, North Dakota)
- August 23rd (Noon): St. Onge Livestock Market-Rollover Sale (St. Onge, SD)
- August 26th (10:30am): Marias Fairgrounds Meeting/Update hosted by Marias River Livestock Association-(Shelby, MT)
- August 27th (Noon): Lewistown Livestock Auction-Rollover Sale (Lewistown, MT)
- August 28th (6:30 pm): Beartooth Fertilizer - Meeting/Update (Fox, MT)
- August 29th (Noon): Mobridge Livestock Auction-Rollover Sale (Mobridge, SD)
August is the usual month for the USCA to meet with cattle producers at various locations around the country so the trip had been well into the planning stage before the COOL dust up. This trip, though, might be a little more contentious than usual. "The ongoing farm bill debate has been a hot topic over the past year," said Peterson. "However, the filing of a lawsuit to end COOL has sparked a groundswell of producer involvement. It's encouraging to see everyone in the countryside coming together to defend COOL. We have had a great response from local livestock markets and associations, which has in turn resulted in a great line-up of meetings in the coming weeks."
This tour will be focused on fundraising for the U.S. COOL Defense Fund that has been established by USCA Director Leo McDonnell. All money contributed to this fund will be directed to the defense of COOL. "Producers and auction markets are assisting with the fundraising effort and the process is gaining momentum," said Peterson, "so if you would like to host an event let me know."
I contacted Peterson and asked if USCA's top gun, Jon Wooster, might answer a few questions. "Absolutely," came the response. Here is what he had to say for himself and his fellow USCA members:
Q. Jon, your organization was joined by National Farmers Union, the American Sheep Industry Association and the Consumer Federation of America in filing a motion to intervene in the lawsuit filed on July 8 by nine plaintiffs seeking an end to the U.S. country of origin labeling (COOL) program. What was the basis for your motion?
A. I am not a lawyer, but my understanding is that parties who potentially would be affected by the lawsuit can seek to intervene either as of right or permissively. Our four groups have a strong interest in the COOL regulation that came out in May of this year and hence are seeking to intervene. The court, of course, will have to decide if we will be allowed to intervene or not.
Q. You’re asking for intervenor status. What arguments will your group present to bolster your defense of the Agricultural Marketing Service (AMS) regulations on COOL?
A. My understanding is that an intervenor takes the case as it has been presented by the plaintiffs. We will be arguing that the regulation promulgated by USDA is lawful and doesn’t violate the constitution, essentially trying to address the claims made by the plaintiffs.
Q. During the AMI sponsored press conference announcing the suit, their legal counsel called the ruling “A violation of free speech.” Specifically, she called it a decree that would compel speech and there was no compelling government interest that would be served. In your opinion, does COOL violate the first amendment and is there a compelling government interest?
A. Obviously, we don’t believe the regulation violates the constitution. Congress, when passing the law, identified the compelling government interest, avoiding consumer confusion through the provision of more detailed factual information.
Q. Let’s look at another point they made. The segregation of animals would be onerous, prohibitively expensive and hinder trade between the U.S., Canada and Mexico. True?
A. The plaintiffs have made various allegations, including claims of irreparable injury. Obviously, the plaintiffs claims are inconsistent with USDA’s estimates of costs. We don’t believe the court will find that plaintiffs are likely to be irreparably harmed. However, that is what the preliminary injunction hearing on the 27th will be examining I assume, and the court will have to decide if they believe what has been presented by plaintiffs meets the standards under the law.
Q. Canada and Mexico have already threatened retaliation if this version of COOL is allowed to stand. The result could be an agricultural trade war between the three North American countries. What are the risks we face?
A. Canada, Mexico and the United States are all members of the WTO. USDA’s revised COOL regulation was aimed at addressing experience under the 2009 regulation and to address the WTO determination that found aspects of COOL to be inconsistent with the United States' WTO obligations. The U.S. has notified the WTO that it has brought itself into compliance through the modification of its regulation.
Our trading partners are able under the WTO to pursue whether the changes the U.S. has made bring COOL into compliance. If the WTO panel and Appellate Body find that the U.S. action doesn’t bring us into compliance, then Canada and Mexico can seek retaliation. That process has not been started by either Canada or Mexico and so retaliation, if ever authorized, is some distance away.
We believe the May 2013 regulation is WTO consistent, but ultimately that is a decision for the WTO to make if Canada or Mexico pursue the issue. But the preference of Canada and Mexico for a different approach to the issue doesn’t create a WTO violation. The U.S. as a sovereign nation is entitled to adopt any approach it wishes if that approach is consistent with the obligations the U.S. has assumed.
What plaintiffs are seeking in the preliminary injunction, if granted, would likely guarantee that the U.S. was in violation of its obligations because an injunction would prevent the US taking the action it viewed as appropriate to comply. That is the immediate risk for agricultural trade.
Q. Taking it to the bottom line, if the public doesn’t care - and it seems to be of little consequence to them - and no need is served, is COOL necessary?
A. Your question simply presents the plaintiffs position. We disagree that COOL is not important – it is important to our members, and consumers overwhelmingly want information on where their food is from. The past has had consumers confused by what labeling was on meat products. And, of course, for those of us who raise cattle, we view COOL as a marketing tool that lets consumers know that the product in front of them is the very best – born and raised here in the United States.
The opinions expressed in this commentary are solely those of Chuck Jolley, a veteran food-industry journalist and commentator.