On December 7, R-CALF USA submitted a motion to file a friend-of-the-court brief and a brief to the Tenth Circuit Court of Appeals in an effort to prevent the Federal Meat Inspection Act (FMIA) from being interpreted to govern both beef labeling and beef advertising, which the ranch group says would severely limit state’s rights.
According to the ranch group, the FMIA governs beef labeling, not beef advertising. “Our goal is to prevent the court from inadvertently expanding the scope of the FMIA to include advertising, which would render any future claims against the false advertisement of domestic or imported beef all but impossible,” said R-CALF USA CEO Bill Bullard.
Bullard said the risk of expanding the scope of the FMIA to include advertising claims arose in lawsuits filed earlier this year by New Mexico rancher Michael Lucero and New Mexico consumer Robin Thornton, who each alleged the Big 4 beef packers had violated New Mexico’s Unfair Practices Act by mislabeling beef as a product of the USA when the beef was actually derived from imported cattle.
A federal district court in New Mexico recently dismissed the two lawsuits on grounds that the FMIA administered by the U.S. Department of Agriculture (USDA) preempts any state law that attempts to require labels or advertisements that are different than the labels approved by the USDA.
The court noted that the USDA regulations allow the use of a “Product of USA” label on beef even if the beef is derived from imported cattle. The court determined that because the packers were labeling and advertising beef according to the USDA’s labeling standard, and because federal law preempts states from both labeling or advertising beef in a different manner, the New Mexico Unfair Practices Act did not apply.
On December 1, Lucero and Thornton appealed the dismissal of their cases to the Tenth Circuit Court of Appeals.
When R-CALF USA reviewed the dismissal order, it realized something was amiss in the legal interpretation of the FMIA. Although the court ruled that state laws for both the labeling and advertising of beef were preempted by the FMIA, the FMIA does not speak to advertising.
R-CALF USA’s brief focuses on this specific issue and urges the appellate court to reverse the lower court’s inclusion of false or misleading advertisements as falling within the scope of the FMIA.
National legal advocacy organization Public Justice joined R-CALF USA on the brief out of similar concerns. David Muraskin, Litigation Director for Public Justice’s Food Project explained, “a ruling that advertising claims are preempted by the FMIA would take away an important tool consumers use to ensure corporate meat producers do not mislead the public about their products.”
In 2017 R-CALF USA filed a somewhat similar case but alleged instead that USDA violated the FMIA by allowing beef from cattle slaughtered in a foreign country to be labeled as a product of the USA. While the court found that U.S. cattle producers were harmed by the repeal of the mandatory country of origin labeling law (mCOOL), which triggered the agency’s reimplementation of the challenged labeling standard, it disagreed that USDA was operating outside the scope of the FMIA. The court concluded that because the USDA labeling regulations followed Congress’ clear intent, it is Congress and not the court that possesses the authority to change USDA’s labeling scheme.
“This ruling prompted us to draft proposed legislation for a new mandatory COOL law for beef, which we have distributed to several members of Congress in both the House and Senate,” said Bullard adding, “What we don’t want is for the court to establish a legal precedent that would bar us from enforcing false beef advertisements on into the future.”