May 8, 2014

D.C. Circuit To Consider Requirements for Compelled Disclosures

Holland & Knight Regulatory Litigation Blog
Christine N. Walz

The D.C. Circuit will rehear American Meat Institute v. U.S. Department of Agriculture en banc later this month. This case presents a First Amendment challenge to a rule requiring that meat products be labeled with precise country of origin information at each of three production steps. 

Last month, a panel of the D.C. Circuit upheld the lower court ruling in the case, which held that the rule did not violate the First Amendment. 

When it hears the case en banc, the D.C. Circuit will consider what the government must show in order to regulate commercial speech by requiring disclosures that are purely factual and non-controversial.

The trade associations have argued that any compelled disclosures, even those that are factual and non-deceptive, must meet a heightened standard of review. The D.C. Circuit panel - and the other circuits who have addressed the issue - disagreed and held that factual, non-controversial disclosures are subject to a more lenient review. Specifically, the panel said that requiring factual, non-controversial disclosures does not violate an advertiser's First Amendment rights "as long as disclosure requirements are reasonably related to" a governmental interest.

In this case, the D.C. Circuit panel said that the governmental interests underlying the country of origin labeling rule justified the intrusion on the First Amendment rights of the trade associations challenging the rule. Those governmental interests included "enabling a consumer to apply patriotic or protectionist criteria in the choice of meat" and enabling "one who believes that United States practices and regulations are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise." 

Parties looking to challenge statutes or rules requiring disclosure of non-controversial factual information should watch for the D.C. Circuit's en banc decision in this matter. 

American Meat Institute v. U.S. Department of Agriculture, No. 13-5281, __F.3d __(D.C.Cir. 2014).

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