Denial of Preliminary Injunction in COOL Case Vacated - Case to be Re-Heard.

Various meat industry groups sued to enjoin enforcement of the Country of Origin Labeling (COOL) rules (78 Fed. Reg. 31, 367) that require meat retailers of "muscle cuts" to list the countries of origin and production steps occurring in each country.  The groups claimed that providing such factual information violated the COOL statute (7 U.S.C. Sec. 1638a(a)(2)(E)) and the First Amendment.  The trial court denied the injunction on the basis that the groups were not likely to prevail on the merits.  On appeal, the court affirmed.  The appellate court determined that the groups were wrong on their claim that the rule unlawfully bans commingling because the rules don't ban any element of the production process, but merely requires accurate labeling with the three phases of production that are named in the statute  and will require changes in the production process.  The court also held that there was no restriction on free speech in violation of the First Amendment because the rules merely require disclosure of factual information that have legitimate values of patriotism and providing assurance to customers of food safety to those that believe the U.S. is superior to other countries on the food safety issue.  The court's affirmance of the denial of the preliminary injunction means that the meat industry groups cannot suspend the enforcement of the rules while a lower court decides the merits of the case.  However, the meat industry groups asked the full court to re-hear the case and their petition was granted.  In agreeing that the full-court (rather than just a three-judge panel) should hear the case, the court also vacated the three-judge panel's opinion in which the court denied the preliminary injunction against enforcing the COOL rules.  The issue before the court on rehearing will be whether, under the First Amendment, judicial review of mandatory disclosure of factual information can proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985) or whether it is subject to review under Central Hudson Gas & Electric v. PSC of New York, 447 U.S. 56 (1980)American Meat Institute, et al. v. United States Department of Agriculture, et al., No. 13-5281, 2014 U.S. App. LEXIS 6240 (D.C. Cir. Apr. 4, 2014), pet. for reh'g., granted and vacating, American Meat Institute, et al. v. United States Department of Agriculture, No. 13-5281, 2014 U.S. App. LEXIS 5710 (D.C. Cir. Mar. 28, 2014).