Lead Opinion
Opinion for the Court filed by Senior Circuit Judge WILLIAMS.
Opinion concurring in part filed by Circuit Judge ROGERS.
Opinion concurring in the judgment filed by Circuit Judge KAVANAUGH.
Dissenting opinion filed by Circuit Judge HENDERSON.
Dissenting opinion filed by Circuit Judge BROWN, which Circuit Judge HENDERSON joins.
Reviewing a regulation of the Secretary of Agriculture that mandates disclosure of country-of-origin information about meat products, a panel of this court rejected the plaintiffs’ statutory and First Amendment challenges. The panel found the plaintiffs unlikely to succeed on the merits and affirmed the district court’s denial of a preliminary injunction. On the First Amendment claim, the panel read Zauderer v. Office of Disciplinary Counsel,
Congress has required country-of-origin labels on a variety of foods, including some meat products, 7 U.S.C. §§ 1638, 1638a, and tasked the Secretary of Agriculture with implementation, id. § 1638c. In the original statute, Congress did not define “country of origin,” leaving that to the agency. Pub.L. No. 107-171, § 282, 116 Stat. 134, 533 (2002). After delaying the statute’s implementation, see, e.g., Pub.L. No. 108-199, § 749, 118 Stat. 3, 37 (2004), Congress amended it in 2008 to define “country of origin,” Pub.L. No. 110-234, § 11002, 122 Stat. 923, 1351-52 (2008). See also 153 Cong. Rec. 20,843 (2007) (statement of Rep. Peterson) (explaining the 2008 amendment as a compromise to allow the delayed country-of-origin mandate to go into effect). For meat cuts, at least, the amended statute defined country of origin based on where the animal has been born, raised, and slaughtered — the three major production steps. 7 U.S.C. § 1638a(a)(2).
The Secretary, whom we refer to interchangeably with his delegate the Agricultural Marketing Service (“AMS”), first promulgated rules in 2009. Mandatory Country of Origin Labeling, 74 Fed.Reg. 2658 (Jan. 15, 2009) (“2009 rule”). The rules did not demand explicit identification of the production step(s) occurring in each listed country, but called more simрly for labeling with a phrase starting “Product of,” followed by mention of one or more countries. 7 C.F.R. § 65.400 (2010). The 2009 rule also made allowance for a production practice known as “commingling.” This made the labeling of meat cuts from animals of different origins processed together on a single production day relatively simple; the label could just name all the
After the 2009 rule’s adoption, Canada and Mexico filed a complaint with the Dispute Settlement Body of the World Trade Organization. In due course the WTO’s Appellate Body found the rule to be in violation of the WTO Agreement on Technical Barriers to Trade. See Appellate Body Report, United States—Certain Country of Origin Labelling (COOL) Requirements, WT/DS384/AB/R (June 29, 2012). The gravamen of the WTO’s decision appears to have been an objection to the relative imprecision of the information required by the 2009 rule. See id. ¶ 343. In a different section of its opinion, the Appellate Body seemed to agree with the United States that country-of-origin labeling in general can serve a legitimate objective in informing consumers. Id. ¶ 453. A WTO arbitrator gave the United States a deadline to bring its requirements into compliance with the ruling.
The Secretary responded with a rule requiring more precise information — revealing the location of each production step. Mandatory Country of Origin Labeling, 78 Fed.Reg. 31,367 (May 24, 2013) (“2013 rule”). For example, meat derived from an animal born in Canada and raised and slaughtered in the United States, which formerly could have been labeled “Product of the United States and Canada,” would now have to be labeled “Born in Canada, Raised and Slaughtered in the United States.” In a matter of great concern to plaintiffs because of its cost implications, the 2013 rule also eliminated the flexibility allowed in labeling commingled animals. Id. at 31,367/3.
The plaintiffs, a group of trade associations representing livestock producers, feedlot operators, and meat packers, whom we’ll collectively call American Meat Institute (“AMI”), challenged the 2013 rule in district court as a violation of both the statute and the First Amendment. This led to the decisions summarized at the outset of this opinion.
AMI argues that the 2013 rulе violates its First Amendment right to freedom of speech by requiring it to disclose country-of-origin information to retailers, who will ultimately provide the information to consumers. See 7 U.S.C. § 1638a(e). The question before us, framed in the order granting en banc review, is whether the test set forth in Zauderer,
* * *
The starting point common to both parties is that Zauderer applies to government mandates requiring disclosure of “purely factual and uncontroversial information” appropriate to prevent deception in the regulated party’s commercial speech. The key question for us is whether the principles articulated in Zauderer apply more broadly to factual and uncontroversial disclosures required to serve other government interests. AMI also argues that even if Zauderer extends beyond correction of deception, the government has no interest in country-of-origin labeling substantial enough to sustain the challenged rules.
Zauderer itself does not give a clear answer. Some of its language suggests possible confinement to correcting deception. Having already described the disclosure mandated there as limited to “purely factual and uncontroversial information about the terms under which [the transaction was proposed],” the Court said, “we hold that an advertiser’s rights are ade
The language with which Zauderer justified its approach, however, sweeps far more broadly than the interest in remedying deception. After recounting the elements of Central Hudson, Zauderer rejected that test as unnecessary in light of the “material differences between disclosure requirements and outright prohibitions on speech.” Zauderer,
To the extent that other cases in this circuit may be read as holding to the contrary and limiting Zauderer to cases in which the government points to an interest in correcting deception, we now overrule them.
In applying Zauderer, we first must assess the adequacy of the interest motivating the country-of-origin labeling scheme. AMI argues that, even assuming Zauderer applies here, the government has utterly failed to show an adequate interest in making country-of-origin information available to consumers. AMI disparages the government’s interest as simрly being that of satisfying consumers’ “idle curiosity.” Counsel for AMI acknowledged during oral argument that her theory would as a logical matter doom the statute, “if the only justification that Congress has offered is the justification that it offered here.... ” Oral Argument Tr. 18, American Meat Institute v. USDA, No. 13-5281 (D.C.Cir. May 19, 2014) (en banc).
Beyond the interest in correcting misleading or confusing commercial speech, Zauderer gives little indication of what type of interest might suffice. In particular, the Supreme Court has not made clear whether Zauderer would permit government reliance on interests that do not qualify as substantial under Central Hudson ’s standard, a standard that itself seems elusive. Cf. Kansas v. United States,
Country-of-origin information has an historical pedigree that lifts it well above “idle curiosity.” History can be telling. In Burson v. Freeman,
The history relied on in Burson was (as here) purely of legislative action, not First Amendment rulings by the judiciary. But just as in Burson, where “[t]he majority of [the] laws were adopted originally in the 1890s,”
Supporting members of Congress identified the statute’s purpose as enabling customers to make informed choices based on characteristics of the products they wished to purchase, including United States supervision of the entire production process for health and hygiene. 148 Cong. Rec. 5491-92 (2002) (statement of Rep. Hooley, co-sponsor of country-of-origin amendment to 2002 Farm Bill) (mentioning “buy American” and safety interests motivating consumers’ desire for country-of-origin information); id. at 5493 (statement of Rep. Wu) (same); see also 153 Cong. Rec. 20,-847 (2007) (statement of Rep. Bono) (calling country-of-origin labeling “a matter of public safety”). Some expressed a belief that with information about meat’s national origin, many would choose American meat on the basis of a belief that it would in truth be better. See, e.g., 148 Cong. Rec. 5492 (2002) (statement of Rep. Hooley); id. (statement of Rep. Thune); id. (statement of Rep. Wu). Even though the production steps abroad for food imported into the United States are to a degree subject to U.S. government monitoring, see Brief for United Mexican States as Amicus Curiae at 4-6, it seems reasonable for Congress to anticipate that mаny consumers may prefer food that had been continuously under a particular government’s direct scrutiny.
■ Some legislators also expressed the belief that people would have a special concern about the geographical origins of what they eat. This is manifest in anecdotes appearing in the legislative record, such as the collapse of the cantaloupe market when some imported cantaloupes proved to be contaminated and consumers were unable to determine whether the melons on the shelves had come from that country. See 148 Cong. Rec. 5492 (2002) (statement of Rep. Thurman). Of course the anecdote more broadly suggests the utility of these disclosures in the event of any disease outbreak known to have a specific country of origin, foreign or domestic.
The record is further bolstered by surveys AMS reviewed, such as one indicating that 71-73 percent of consumers would be willing to pay for country-of-origin information about their food. Mandatory Country of Origin Labeling, 68 Fed.Reg. 61,944, 61,955/2 (proposed Oct. 30, 2003) (to be codified at 7 C.F.R. pt. 60) (“2003 proposed rule”); see also 2013 rule, 78 Fed.Reg. at 31,375/3 (noting that commen-ters had referred to a study showing consumer willingness to pay). The AMS quite properly noted the vulnerabilities in such data. Most obvious is the point that consumers tend to overstate their willingness to pay; after all, the data sound possibly useful, and giving a “Yes” answer on the survey doesn’t cost a nickel.2003 proposed rule, 68 Fed.Reg. at 61,955/3; see also
In light of the legislators’ arguments, read in the context of country-of-origin labeling’s long history, we need not consider to what extent a mandate reviewed under Zauderer can rest on “other suppositions,” as opposed to “the precise interests put forward by the State.” See Edenfield v. Fane,
We pause to note the implications of a rule under which a statute’s constitutionality could be doomed by agency fumbling (whether deliberate or accidental) of perfectly adequate legislative interests properly stated by congressional proponents. Such a rule would allow the executive to torpedo otherwise valid legislation simply by failing to cite to the court the interests on which Congress relied. And it would allow the next administration to revive the legislation by citing those interests. We do not think the constitutionality of a statute should bobble up and down at an administration’s discretion.
In any event, the agency has sufficiently invoked the interests served by the statute, both during the rulemaking, 2013 rule, 78 Fed.Reg. at 31,377/2 (“This rule ... is the result of statutory obligations to implement the [country-of-origin] provisions of the 2002 and 2008 Farm Bills.”); id. at 31,370/1, and in litigation, Federal Appel-lees’ Br. 25, 26, American Meat Institute v. USDA No. 13-5281 (D.C.Cir.2014), and has certainly not disclaimed those interests, see Oral Argument Tr. 51-52, American Meat Institute v. USDA No. 13-5281 (D.C.Cir. May 19, 2014) (en banc).
Finally, agency statements (from prior rulemakings) claiming that country-of-origin labeling serves no food safety interest are not inconsistent with any of the government’s litigation positions here. Simply because the agency believes it has other, superior means to protect food safety doesn’t delegitimize a congressional decision to empower consumers to take possible country-specific differences in safety practices into account. Nor does such an agency belief undercut the economy-wide benefits of confining the market impact of a disease outbreak.
Having determined that the interest served by the disclosure mandate is adequate, what remains is tо assess the relationship between the government’s identified means and its chosen ends. Under Central Hudson, we would determine whether “the regulatory technique [is] in proportion to [the] interest,” an inquiry comprised of assessing whether the chosen means “directly advance[s] the state interest involved” and whether it is narrowly tailored to serve that end. Central Hudson,
When the Supreme Court has analyzed Central Hudson’s “directly advance” requirement, it has commonly required evidence of a measure’s effectiveness. See Edenfield,
The self-evident tendency of a disclosure mandate to assure that recipients get the mandated information may in part explain why, where that is the goal, many such mandates have рersisted for decades without anyone questioning their constitutionality. In this long-lived group have been not only country-of-origin labels but also many other routine disclosure mandates about product attributes, including, for instance, disclosures of fiber content, 16 C.F.R. pt. 303, care instructions for clothing items, 16 C.F.R. pt. 423, and listing of ingredients, 21 C.F.R. § 101.4.
Notwithstanding the reference to “narrow tailoring,” the Court has made clear that the government’s burden on the final Central Hudson factor is to show a “reasonable fit,” see Fox,
Thus, to the extent that the pre-condi-tions to application of Zauderer warrant inferences that the mandate will “directly advance” the government’s interest and show a “reasonable fit” between means
In this case, the criteria triggering the application of Zauderer are either unchallenged or substantially unchallenged. The decision requires the disclosures to be of “purely factual and uneontroversial information” about the good or service being offered. Zauderer,
As to whether it is “controversial,” AMI objected to the word “slaughter” in its reply brief. Though it seems a plain, blunt word for a plain, blunt action, we can understand a claim that “slaughter,” used on a product of any origin, might convey a certain innuendo. But we need not address such a claim because the 2013 rule allows retailers to use the term “harvestеd” instead, 78 Fed.Reg. at 31,368/2, and AMI has posed no objection to that. And AMI does not disagree with the truth of the facts required to be disclosed, so there is no claim that they are controversial in that sense.
We also do not understand country-of-origin labeling to be controversial in the sense that it communicates a message that is controversial for some reason other than dispute about simple factual accuracy. Cf. Nat’l Ass’n of Mfrs. v. SEC,
Nor does the mandate run afoul of the Court’s warning that Zauderer does not leave the state “free to require corporations to carry the messages of third parties, where the messages themselves are biased against or are expressly contrary to the corporation’s views.” Pacific Gas & Electric Co. v. Public Utilities Commission,
Finally, though it may be obvious, we note that Zauderer cannot justify a disclosure so burdensome that it essentially operates as a restriction on constitutionally protected speech, as in Ibanez v. Florida Department of Business and Professional Regulation,
Accordingly we answer affirmatively the general question of whether “government interests in addition to correcting deception,” American Meat Inst. v. USDA,
So ordered.
Notes
. Judge Henderson in her separate dissent criticizes the now-vacated рanel opinion for stating the panel's view that the language of RJ. Reynolds and National Association of Manufacturers v. NLRB limiting Zauderer to instances of deception-correction did not constitute holdings. Whatever the merits of that view, the panel recognized that other judges might reasonably take the contrary view and accordingly called for the court to consider the scope of Zauderer en banc, a call to which the court responded affirmatively. The present opinion is the consequence.
Concurrence Opinion
concurring in part.
Although I join much of the court’s opinion, I write separately to disassociate myself from the suggested reformulation of the separate standards for First Amendment protection of commercial speech in Zauderer v. Office of Disciplinary Counsel,
The reformulation of the standards (as well as the dissent’s approach, see dissenting opinion of Judge Brown, joined by Judge Henderson, at 44-46), appears to contravene the Supreme Court’s rationale in Zauderer and the purposes served by First Amendment protection of commercial speech. Under the Central Hudson standard, in reviewing restrictions on lawful, non-misleading commercial speech, the Supreme Court instructed that a court must determine “whether the asserted governmental interest is substantial,] ... whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Fairly understood, the Supreme Court’s analysis of the disclosure requirement in Zauderer does not reformulate the Central Hudson standard but rather establishes a different standard based on the “material differences between disclosure requirements and outright prohibitions on speech.”
Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the “mаrketplace of ideas.” Protection of the robust and free flow of accurate information is the principal First Amendment justification for protecting commercial speech, and requiring disclosure of truthful information promotes that goal. In such a case, then, less exacting scrutiny is required than where truthful, nonmisleading commercial speech is restricted.
Id. (citations omitted); see also Pharm. Care Mgmt. Ass’n v. Rowe,
The en banc court’s holding that Zau-derer applies to government disclosure interests beyond preventing deception acknowledges that the First Amendment values underlying protection of commercial speech naturally lead to a distinction between disclosures and restrictions, but it appears not to acknowledge the full implications of the distinction: Zauderer’s conceptual framework is what drives not only its application to disclosures serving other governmental interests, but also its less rigorous level of scrutiny. The dissent’s analysis fails to acknowledge that Zauderer ’s holding with regard to the disclosure requirement rested primarily on this difference between disclosures and restrictions, not on the risk of deception. Yet this court and our sister circuits have understood the Supreme Court to have established distinct standards for analyzing First Amendment challenges to government-imposed commercial restrictions and disclosures. In R.J. Reynolds Tobacco Co. v. FDA
Even assuming that AMI’s proposed reformulation of the Central Hudson and Zauderer standards has little impact on the outcome of the First Amendment challenge here, blurring the lines between the two standards may sow confusion where, for example, the focus is not on the adequacy of the government interest, as here, but instead on the evidentiary support for, or the “fit” of, the disclosure requirement. Absent further instruction from the Supreme Court or consideration of the question when it is necessary to our decision, the court has no occasion to veer from the Supreme Court’s articulation of the standards in Central Hudson and Zauderer.
Concurrence Opinion
concurring in the judgment:
May the U.S. Government require an imported Chinese-made product to be labeled “Made in China”? For many readers, the question probably answers itself: Yes. This case requires us to explain why that is so, in particular why such a requirement passes muster under the First Amendment. The precise First Amendment issue before us concerns a federal law that requires country-of-origin labels for meat and other food products. Country-of-origin labels are of course familiar to American consumers. Made in America. Made in Mexico. Made in China. And so on. For many decades, Congress has mandated such country-of-origin labels for a variety of products. I agree with the majority opinion that the First Amendment does not bar those longstanding and commonplace country-of-origin labeling requirements.
As a starting point, all agree that the First Amendment imposes stringent limits on the Government’s authority to either restrict or compel speech by private citizens and organizations. See Texas v. Johnson,
I will address in turn how those two basic Central Hudson requirements apply to this case.
First, under Central Hudson, the Government must identify a substantial governmental interest that is served by the law in question. Since its decision in Central Hudson, the Supreme Court has not stated that something less than a “substantial” governmental interest would justify either a restriction on commercial speech or a compelled commercial disclosure. And likewise, the majority opinion today does not say that a governmental interest that is less than substantial wоuld suffice to justify a compelled commercial disclosure.
What interests qualify as sufficiently substantial to justify the infringement on the speaker’s First Amendment autonomy that results from a compelled commercial disclosure? Here, as elsewhere in First Amendment free-speech law, history and tradition are reliable guides. See Brown v. Entertainment Merchants Association, — U.S. -,
But the Government cannot advance a traditional anti-deception, health, or safety* interest in this case because a country-of-origin disclosure requirement obviously does not serve those interests. Rather, the Government broadly contends that it has a substantial interest in “providing consumers with information.” Tr. of Oral Arg. at 41. For Central Hudson purposes, however, it is plainly not enough for the Government to say simply that it has a substantial interest in giving consumers information. After all, that would be true of any and all disclosure requirements. That circular formulation would drain the Central Hudson test of any meaning in the context of compеlled commercial disclosures. See R.J. Reynolds,
Although the Government’s broad argument is meritless, country-of-origin labeling is justified by the Government’s historically rooted interest in supporting American manufacturers, farmers, and ranchers as they compete with foreign manufacturers, farmers, and ranchers. Since the early days of the Republic, numerous U.S. laws have sought to further that interest, sometimes overtly and sometimes subtly. Although economists debate whether various kinds of protectionist legislation help U.S. consumers and the overall U.S. economy, there is no doubt that Congress has long sought to support and promote various U.S. industries against their foreign competition. How is that interest implicated by country-of-origin labeling? Country-of-origin labeling, it is widely understood, causes many American consumers (for a variety of reasons) to buy a higher percentage of American-made products, which in turn helps American manufacturers, farmers, and ranchers as compared to foreign manufacturers, farmers, and ranchers. That is why Congress has long mandated country-of-origin disclosures for certain products. See, e.g., United States v. Ury, 106 F.2d 28, 29 (2d Cir.1939) (purpose of early country-of-origin labeling requirements “was to apprise the public of the foreign origin and thus to confer an advantage on domestic producers of competing goods”). That historical pedigree is critical for First Amendment purposes and demonstrates that the Government’s interest here is substantial. The majority opinion properly relies on the history of country-of-origin labeling laws as a basis for finding that the Government has a substantial interest in this case.
That said, one wrinkle in this case is whether the Government has actually asserted an interest in supporting American farmers and ranchers in order to justify this country-of-origin labeling requirement for meat and other food products. Whether the Government has asserted such an interest matters because Central Hudson requires that the Government articulate the interests it seeks to advance. See Edenfield v. Fane,
In short, the Government has a substantial interest in this ease in supporting American farmers and ranchers against their foreign competitors.
The second question under Central Hudson concerns the fit between the disclosure requirement аnd the Government’s interest — as plaintiff AMI succinctly puts it, whether the disclosure requirement is “tailored in a reasonable manner.” AMI Supplemental Br. at 16 (quoting Edenfield,
As I read it, the Supreme Court’s decision in Zauderer applied the Central Hudson “tailored in a reasonable manner” requirement to compelled commercial disclosures. At the outset of its opinion, the Zauderer Court described the general Central Hudson framework- in detail. And then the Court stated: “we must apply the teachings of these cases,” including Central Hudson, to the three separate state regulations of attorney advertising at issue, including “disclosure requirements relating to the terms of contingent fees.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio,
It is important to underscore that those Zauderer fit requirements are far more stringent than mere rational basis review. When the Supreme Court applies rational basis review, it does not attach a host of requirements of the kind prescribed by Zauderer. Rational basis review is ex
In this case, as the majority opinion properly concludes, those stringent Zau-derer fit requirements are met. The country-of-origin labeling requirement at issue here is purely factual, is not unduly burdensome, and as explained above is reasonably related to the Government’s longstanding interest in supporting American farmers and ranchers. To be sure, determining whether a disclosure is “uncontroversial” may be difficult in some compelled commercial speech cases, in part because it is unclear how we should assess and what we should examine to determine whether a mandatory disclosure is controversial. But regardless of how the “uncontroversial” requirement might play out in other cases, the issue poses little difficulty here. Unlike the mandated disclosures at issue in R.J. Reynolds or National Association of Manufacturers, for example, a country-of-origin label cannot be considered “controversial” given the factually straightforward, evenhanded, and readily understood nature of the information, as well as the historical pedigree of this specific kind of disclosure requirement. Cf. National Association of Manufacturers,
For those reasons, I would uphold this country-of-origin labeling requirement. As I read it, the majority opinion is consistent with my analysis. But I thought it important to spell out each step of my analysis in greater detail. Bottom line: I agree with the majority opinion that we should affirm the judgment of the District Court.
. To state what is probably obvious, the compelled disclosure must be a disclosure about the product or service in question to be justified under Central Hudson and Zauderer. The First Amendment does not tolerate a government effort to compel disclosures unrelated to the product or service — for example, a compelled disclosure on all food packages (not just cigarette packages) that cigarette smoking causes cancer. The majority opinion, as I read it, agrees with that principle. See Maj. Op. at 26 ("Of course to match Zauderer logically, the disclosure mandated must relate to the good or service offered by the regulated party:...”); see also Zauderer v, Office of Disciplinary Counsel of Supreme Court, of Ohio,
. Although I agree with the results and most of the reasoning of R.J. Reynolds and National Association of Manufacturers, I disagree with those cases’ description of Zauderer as mere rational basis review. See National Association of Manufacturers v. SEC,
Dissenting Opinion
dissenting:
I agree with Judge Brown that the en banc majority is wrong on the merits and join fully her well-reasoned and compelling dissent. But, for the life of me, I do not understand how we got to the en banc stage in this case. As Judge Brown notes, the original panel “was wrong to contradiсt R.J. Reynolds” — and not solely because the panel was wrong on the merits. See Dissent at 11 (citing R.J. Reynolds Tobacco Co. v. FDA,
One of our court’s most fundamental governing principles is the “law of the circuit doctrine” which decrees that the decision of a three-judge panel of the court “is ‘the decision of the court.’ ” LaShaum v. Barry,
In R.J. Reynolds, we vacated the Food and Drug Administration’s final rule establishing mandatory graphics warnings on cigarette packages. In so doing, we rejected two “narrow and well-understood exceptions to the general rule that content based speech regulations — including compelled speech — are subject to strict scrutiny.” R.J. Reynolds,
Given its repeated and emphatic reliance on the limited applicability of the Zauderer standard — to language involving deception — the R.J. Reynolds majority plainly considered the in applicability of Zauderer as “integral” and “necessary” to its decision, that is to say, a “holding.” See Aamer v. Obama,
Nonetheless, the original panel here decided that “Zauderer is best read as applying not only to mandates aimed at curing deception but also to ones for other purposes, and that neither Reynolds nor [National Association of Manufacturers v. NLRB,
That the panel forewent the Irons footnote procedure is not surprising as none of the justifications therefor fits. Our written policy, based on our accumulated case law, sets out four specific — albeit non-exclusive — bases for an Irons footnote:
(1) resolving an apparent conflict in the prior decisions of panels of the court;
(2) rejecting a prior statement of law which, although arguably dictum, warrants express rejection to avoid future confusion;
(3) overruling an old or obsolete decision which, although still technically valid as precedent, has plainly been rendered obsolete by subsequent legislation or other developments; and
(4) overruling a more recent precedent which, due to an intervening Supreme Court decision, or the combined weight of authority from other circuits, a panel is convinced is clearly an incorrect statement of current law.
Dissenting Opinion
dissenting:
Throughout oral argument, AMI’s counsel repeatedly summarized the analytical options before the en banc court:
[T]he bottom line is if Central Hudson applies, [AMI] should prevail; if Zau-derer applies only to deception, [AMI] should prevail; if Zauderer applies only to consumer protection, health and safety, and deception, [AMI] should prevail. The only way [AMI does not] prevail is if this Court concludes that Zauderer applies to any interest, no matter how articulated, no matter how speculative.
Tr. of Oral Arg. at 39, Am. Meat. Inst. v. USDA, No. 13-5281 (D.C.Cir. May 19, 2014) (en banc). No doubt counsel thought stating such an outrageous proposition would be sufficient to refute it. But, astonishing as it may be to First Amendment scholars, the court today doubles down on that extraordinary result. The court holds “Zauderer ... reach[es] beyond problems of deception, sufficiently to encompass” factual and noncontroversial disclosure mandates aimed at providing more information to some consumers. Maj. Op. at 20. As a result, the fundamental First Amendment right not to be сoerced or compelled to say what one would not say voluntarily is now demoted to a mere tautology: “[B]y acting ... through a reasonably crafted disclosure mandate, the government meets its burden of showing that the mandate advances its interest in making the ‘purely factual and uncontroversial information’ accessible to the recipients.” Maj. Op. at 26. In other words, a business owner no longer has a constitutionally protected right to refrain from speaking, as long as the government wants to use the company’s product to convey “purely factual and uncontroversial” information.
In so finding, the court today ignores the plain words of Zauderer’s text and disregards its historical context; both the text and history of the case emphasize the government’s unique interest in preventing commercial deception. By expanding Zauderer beyond deception, the court has now created a standard that is actually even more relaxed than rational basis re
The court’s ardent reliance on the legislative record to justify the rule, in lieu of the regulatory text itself or the rulemaking record presented by the government, is baffling. Though this case has a constitutional dimension, it challenges an agency rulemaking. Ordinarily, that means our review is limited to the record as the agency presented it, Camp v. Pitts,
I dissent.
I
Zauderer v. Office of Disciplinary Counsel,
A
The court’s erratic and idiosyncratic parsing of Zauderer’s text manages to create an impression of impenetrable opacity where the ordinary reader would find commendable clarity. Asserting that the “language with which Zauderer justified its approach ... sweeps far more broadly than the interest in remedying deception,” the court hinges its claims on just three scraps from Zauderer: a sentence about “material differences,” a sentence buried in a footnote, and the word “minimal.” See Maj. Op. at 22. Each plucked out of context.
As Chief Judge Garland explained to government counsel during oral argument, “If you’re going to rely on Zauderer, you’ve got to take the whole thing.” Tr. of
In Zauderer, an attorney challenged Ohio’s restrictions on lawyer advertising after he was disciplined for certain allegedly misleading newspaper advertisements. Specifically,- when one advertisement promised clients would owe no legal fees in cases without a recovery, the disciplinary office complained the ad failed to follow regulations requiring disclosure that clients still may be liable for costs in unsuccessful claims. See Zauderer,
First, the Supreme Court clarified both that the First Amendment protects commercial speech, id. at 637-38,
Crucial to the Court’s analysis was not just the difference between disclosure and prohibition; it was also the difference between disclosure in advertising and that advertisement’s outright prohibition, given the state’s prerogative to prohibit misleading commercial speech. The Court was absolutely clear: “[B]eeause disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception.” Id. (emphasis added). In short, the state’s option to require a curative disclosure cannot be disconnected from its right to entirely prohibit deceptive, fraudulent, or misleading
Thus, even when the advertiser makes affirmative claims and the basis for a curative disclosure is self-evident, the advertiser still retains minimal First Amendment protections. Conversely, when the government is not curing deception, constitutional protections remain robust and undiminished. That the compelled information must be factual and noncontroversial is part of the government’s burden. This characterization is not a trigger that transforms every seller’s packaging into the government’s billboard.
Inexplicably, the court now upends the precise constitutional hierarchy outlined in Zauderer by ignoring the clear linkage between advertising, deception, and the state interest in curing that deception, which forms the core of the Supreme Court’s reasoning.
B
By parsing Zauderer in such a piecemeal fashion, this court robs the decision of its internal consistency and strips it of any historical context. The Framers resisted adding a Bill of Rights to the Constitution because they feared the elucidation of some rights would overshadow the telos inherent in the Constitution as a whole. The Constitution of liberty they conceived was premised on the natural law and conceded the immanence of the first principle of that law — that an adult human being, as a free moral agent, cannot be coerced without good reason. At the same time, they understood James Wilson’s observation that no one ever had a natural right to do wrong. This is precisely the balance the Supreme Court struck in its early opinions acknowledging protection for commercial speech.
When the Supreme Court extended formal constitutional protection to commercial speech, it emphasized that false' or misleading commercial speech remained unprotected. See Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.,
The court disregards the Supreme Court’s extraordinarily consistent jurisprudence in this area, from Virginia Board to Zauderer through the present day: the government may regulate commercial speech to avoid misleading or confusing consumers. While broad bans on nonmisleading commercial spеech were immediately suspect, the Court repeatedly affirmed the narrow niche occupied by actual, inherently, and potentially deceptive speech subject to government regulation. See, e.g., Linmark Assocs., Inc. v. Willingboro Twp.,
Thus, when the Court was confronted for the first time, in Zauderer, with the constitutionality of a disclosure requirement, it studied and relied on this prior commercial speech jurisprudence concerning deception to reach its ultimate holding. See Zauderer,
In R.J. Reynolds, a panel of this court followed Zauderer’s text to its logical conclusion: “[B]y its own terms, Zauderer’s holding is limited to cases in which disclosure requirements are ‘reasonably related to the State’s interest in preventing deception of consumers.’ ” R.J. Reynolds Tobacco Co. v. FDA
Thus, not only did the Supreme Court recognize Zauderer’s clarity (and limitations), so too did this court. In fact, even the government — in previous filings in this very case — recognized the clear import of Zauderer. See, e.g., Defs.’ Opp’n to Pis.’ Mot. for Prelim. Inj. at 32, Am. Meat Inst. v. USDA,
The clear trajectory of the Supreme Court’s jurisprudence is toward greater protection for commercial speech, not less. See, e.g., Milavetz,
The government even goes so far as to argue the “applicability of the Zauderer standard does not depend upon the government’s justification for the required disclosure [and] [i]nstead ... [is] premised on” the commercial actor’s limited interests. Gov’t Supp’l Br. at 5; see also id. at 7 (“But the nature of the government’s reason for requiring disclosure does not affect whether the Zauderer standard applies.”). And at oral argument, the government — before correction by the Chief Judge — essentially argued compelled commercial disclosures implicate no First Amendment interests at all. See Tr. of Oral Arg. at 50, Am. Meat. Inst., No. 13-5281 (D.C.Cir. May 19, 2014) (en banc) (arguing the analysis might be different if “the actual First Amendment interest might start to crop up on the other side” (emphasis added)); id. at 50-51 (stating
Several members of this court seemed to find these arguments troubling. See Tr. of Oral Arg. at 40-41, Am. Meat. Inst., No. 13-5281 (D.C.Cir. May 19, 2014) (en banc) (Judge Kavanaugh: “This is a First Amendment case. We usually don’t start that way[. We] usually start by asking what’s the government’s interest in burdening the speaker or the speech.”); id. at 50 (Judge Brown: “You don’t think that compelling speech is a First Amendment interest?”); id. (Judge Kavanaugh: “[Y]ou were suggesting that they were outside — there was no First Amendment issue at all here.”); id. at 51 (Chief Judge Garland: “[I]t’s not quibbling. The Supreme Court in Footnote 14 in Zauderer ... doesn’t say [the First Amendment interests implicated by disclosure requirements] [a]re nonexistent. Is the government’s position that they’re nonexistent?”). Yet, remarkably, the court today agrees with the government that the First Amendment no longer matters here, as long as a court can agree the compelled information is factual and uncontroversial.
II
Despite the clear protections granted to commercial speech since 1972, the court now invents a First Amendment standard that provides even less protection than rational basis review. To say this result is anomalous is an understatement. No one has argued in this case that the government can never compel the sellers of products to give notice to consumers. The only question here is who bears the burden of justification and what level of interest is sufficient. And when we are dealing with fundamental First Amendment protections, as we are here, the burden is on the government, and it is the government that must assert substantial interests. See Bd. of Trs. of State Univ. of N.Y. v. Fox,
A
Although we have sometimes characterized the Zauderer standard as similar to rational basis review, see R.J. Reynolds,
Central Hudson Gas & Electric Corp. v. Public Service Commission of New York,
Zauderer’s narrowly crafted exception to this rule does not offer a dispensation from Central Hudson’s intermediate scrutiny. Rather the government’s burden under intermediate scrutiny is effectively met when the government commands purely factual and noncontroversial disclosures to prevent deceptive advertising.
To illustrate: Under Central Hudson, the government must first assert a substantial interest. Preventing inherent or actual deception in commercial advertising will always be such a substantial interest, so Zauderer satisfies the first element. Next, when a government’s disclosure mandate is reasonably related to its deception interest — as Zauderer requires — we can be assured the disclosure will directly advance that interest; in other words, a reasonably related curative disclosure will necessarily make the deceptive advertisement less misleading. Finally, a disclosure requirement will be less restrictive than an outright ban, or no more extensive than necessary to cure the deception.
When the government’s interest is not in curing deceptive advertising, however, Zauderer does not apply. The commercial speech “may be restricted only in the service of a substantial ... interest” articulated by the government, and “only through means that directly advance that interest.” Zauderer,
Unsatisfied with eviscerating Zauderer ’s protective limits, the court proceeds to lay the groundwork to disembowel Central Hudson as well. See, e.g., Maj. Op. at 25-26 (“Zauderer’s method of evaluating fit differs in wording [from Central Hudson], though perhaps not signifiсantly in substance.... ”). By holding the amorphous interests in today’s case to be “sub
B
Although the court declines to “consider to what extent a mandate reviewed under Zauderer can rest on other suppositions as opposed to the precise interests put forward by the State,” Maj. Op. at 25, it nonetheless relies on interests the agency never asserted and even denied were rationales for the rule. This takes the evil of post hoc rationalization to a whole new level. And the court forgets that it is assessing the propriety of administrative action, when a reviewing court is limited to the administrative record and must judge the rule “solely by the grounds invoked by the agency.” Chenery,
The court asserts “AMI makes no claim that the agency’s exercises of its discretion are of constitutional moment....” Maj. Op. at 25. This is more of a non sequitur than an explanation.
Likewise, if the court means to rely on the background presumption of the constitutionality of Congressional legislation, that presumption is consistent with rational basis review, Katzenbach v. Morgan,
In any event, the mere presence of substantial Congressional findings is not alone sufficient. The Central Hudson test requires “the Government not only to identify specifically a substantial interest to be achieved ... but also to prove that the regulation directly advances that interest and is not more extensive than is necessary to serve that interest.” Thompson,
The government’s only asserted interest for the rule throughout this litigation— after abandoning its half-hearted post hoc deception rationale — has been a consistently vague one: “The government’s interest is in providing consumers with information that those consumers can use to make choices about the food that they will ... purchase and serve to their families or eat themselves.” Tr. of Oral Arg. at 41, Am. Meat. Inst., No. 13-5281 (D.C.Cir. May 19, 2014) (en banc); see also Gov’t Supp’l Br. at 20 (referring to “the benefit of allowing customers to know the country of origin of their food” as the government interest); Mandatory Country of Origin Labeling, 74 Fed.Reg. 2658, 2683 (Jan. 15, 2009) [hereinafter “2009 Rule”] (noting “interest by some consumers in the cоuntry of origin of food” (emphasis added)). Yet the government has never explained precisely why origin information assists with customer preferences, only suggesting “the production steps in each country may embody latent (hidden or unobservable) attributes, which may be important to individual consumers.” Mandatory Country of Origin Labeling, 78 Fed.Reg. 31,367, 31,377 (May 24, 2013) [hereinafter “2013 Rule”] (emphasis added). The government never suggests, explains, or supports what those attributes might be. More importantly, the government never explains why coerced speech is the only solution.
The agency’s stated ambiguous and amorphous interest in giving consumers more information is undoubtedly insufficient to survive even under an expanded-Zauderer regime. See Int’l Dairy Foods Ass’n v. Amestoy,
The result is a jumble, a messy amalgam of standards, legislative history, and administrative procedure. The court is so committed to upholding this rule that it concludes “several aspects of the government’s interest in country-of-origin labeling for food combine to make the interest substantial: the context and long history of country-of-origin disclosures to enable consumers to choose American-made products; the demonstrated consumer interest in extending country-of-origin labeling to food products; and the individual health concerns and market impacts that can arise in the event of a food-borne illness outbreak.” Maj. Op. at 23. On inspection, each of these “aspects,” upon which the court so heavily leans, is foreclosed by history, governmental concession, and the record.
i
Contrary to the court’s assertions, the “long history” of country-of-origin labeling cannot support the government’s interest here. The court claims the rule’s “historical pedigree ... lifts it well above ‘idle curiosity.’ ” Maj. Op. at 23. However, in the First Amendment context, which has been steadily evolving since the late 1800s, history is not “telling,” Maj. Op. at 23-24; rather, it is an especially poor substitute for reasoned judgment. The Supreme Court’s general reluctance to accept any free speech claims at the time country-of-origin lаbeling began certainly bears on the issue. See David M. Rabbant, The First Amendment in Its Forgotten Years, 90 Yale L.J. 514, 523 (1981) (“The overwhelming majority of prewar decisions in
Modern “commercial speech” doctrine did not begin until the 1970s, when the Supreme Court formally extended First Amendment protection to commercial speech. See Va. State Bd. of Pharmacy,
For example, in 1907, when faced with the constitutional validity of a state law criminalizing the use of an American flag emblem on labels, the litigants and the Court “ignored potential free speech claims.” Rabbant, supra at 531; see Halter,
When at last the Supreme Court formally addressed the protection of “advertising” (again, its term), it notеd, without citation, it was “clear that the Constitution imposes no such restraint on government as respects purely commercial advertising.” Chrestensen,
Additionally, the early years of free speech jurisprudence saw laws routinely upheld that by today’s standards clearly interfere with commercial speech. See, e.g., Ex parte Rapier,
Furthermore, this court’s reliance on Burson v. Freeman,
Similarly, Edenfield v. Fane,
ii
The court concludes protectionism or patriotism is the true motive of the challenged eountry-of-origin labeling scheme, even if it is only acknowledged with a sly wink by the government. See Kavanaugh Op. at 32 (“[T]he Executive Branch has refrained during this litigation from expressly articulating its ... interest in supporting American farmers and ranchers in order to justify this law, apparently because of the international repercussions that might ensue.”). The court assumes— perhaps correctly — that absent the constraints of various trade treaties, Congress would have an interest in promoting American products. See Maj. Op. at 23 (noting origin labeling “enable[s] consumers to choose American-made products”); Kavanaugh Op. at 33 (asserting the government “has a substantial interest in this case in supporting American farmers and ranchers against their foreign competitors”). But, that interest would constitute a substantial justification for coercing speech only if the government had actually asserted it, and if voluntary action and direct government speech were obviously inadequate. Significantly, the court ignores the agency’s disclaimers in this case. Not only has the agency failed to raise or support any protectionist motive, it has, in fact, consistently denied one. See, e.g., 2013 Rule, 78 Fed.Reg. at 31,376 (“The availability of [country-of-origin labeling] information does not imply that there will necessarily be any change in aggregate
iii
The court credits the government with acting sub silentio on the belief that food products produced wholly in the USA are safer than those produced even partly outside the USA. See Maj. Op. at 23 (asserting interest in “individual health concerns and market impacts that can arise in the event of a food-borne illness outbreak”); id. at 24 (“Supporting members of Congress identified the statute’s purpose as enabling customers to make informed choices based on characteristics of the products they wish to purchase, including United States supervision of the entire production process for health and hygiene.”) Again, not only has the government failed to raise or support any motive in consumer health and safety, it has, in fact, consistently eschewed that interest as supporting the rule. See, e.g., Mandatory Country of Origin Labeling, 78 Fed.Reg. 31,367, 31,372 (May 24, 2013) (noting the country-of-origin labeling program “is not food safety related”); 2009 Rule,
Even the anecdotes in the legislative record do not, as the court contends, “broadly suggest[ ] the utility of [country-of-origin] disclosures in the event of any disease outbreak known to have a specific country of origin, foreign or domestic.” Maj. Op. at 24. Rather, the Agency also discredited this very purpose: “Appropriate preventative measures and effective mechanisms to recall products in the event of contamination incidents are the means used to protect the health of the consum
Ill
This case is really not about country-of-origin labeling. It is not even about patriotism or protectionism. And it is certainly not about health and safety. What is apparent from the record and the briefing is that this is a case about seeking competitive advantage. One need only look at the parties and amici to recognize this rule benefits one group of American farmers and producers, while interfering with the practices and profits of other American businesses who rely on imported meat to serve their customers. See, e.g., Interve-nors Br. at i (noting the United States Cattlemen’s Association “present[s] an effective voice for the U.S. cattle industry and promot[es] ranching in the United States”); id. (“[United States Cattlemen’s Assоciation] works to promote the interests of cattlemen in the United States on issues such as the Country of Origin Labeling ... program”); id. (explaining the National Farmers Union is a “national organization representing the interests of farmers and ranchers across the United States ... by advocating the policy positions developed by its members ... on issues such as [country-of-origin labeling]”); Supp’l Br. of Amici Curiae Food & Water Watch, et al., at iv (describing amici as “intimately involved in, and [having] spent considerable resources on, advocating for ... the development of the [country-of-origin labeling] rule at issue in this case”); see, e.g., Br. of Amicus Curiae Government of Canada at 3-4, 9 (“[P]arts of the U.S. industry that produce both U.S.-origin and mixed-origin meat face” much higher costs than slaughterhouses that rely on domestic livestock — a cost differential the WTO concluded has a “detrimental impact ... [on the] competitive position of Canadian cattle and hogs in the U.S. market [that] could not be explained by the need to” inform consumers). Even the court’s citation to the congressional record underscores this point. See Maj. Op. at 24 (citing statements from U.S. representatives hailing from Western states, including Oregon (Hooley and Wu) and California (Bono)). Such a disproportionate burden “stands in sharp conflict with the First Amendment’s command that government regulation of speech must be measured in mínimums, not máximums.” Riley,
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.
By substantiating the government’s nebulous interests, the court essentially permits the government to commandeer the speech of others. There is no limiting principle for such a flimsy interest as the government asserted in this case. See Tr. of Oral Arg. at 28, Am. Meat. Inst., No. 13-5281 (D.C.Cir. May 19, 2014) (en banc) (“There is absolutely no stopping point to [the government’s consumer-interest] argument.”); id. (Judge Kavanaugh: “The government wants no stopping point to that argument.”). More alarmingly, such self-referential interests can be marshalled in aid of any sort of crony capitalism or ideological arm-twisting. This labeling scheme is only one example.
The scheme is not designed to inform consumers; it is designed to take away the price advantage enjoyed by one segment of a domestic industry. The government’s alleged interest in providing information that some consumers may desire will actually result in higher prices. See, e.g., Br. of Amicus Curiae Grocery Manufacturers Association at 11 (“The severe costs that the COOL requirements will impose on GMA’s members are entirely out of proportion to the ethereal goal of affording consumers more information.... ”); see id. at 11-12 (“If the COOL requirements are sustained, that sort of supply-chain management will become extremely costly or, for some manufacturers, cost prohibitive .... ”). Forcing meat packers to pay a premium for domestic beef will raise costs for consumers. Query whether the protections of the First Amendment should be abrogated for some businesses in order to benefit other businesses. That approach not only swallows important First Amendment protections, it does so in order to discriminate in favor of particular segments of pаrticular industries. The first Amendment ought not be construed to allow the government to compel speech in the service of speculative or hypothetical interests for purely private benefits. Once we articulate such a principle of constitutional adjudication, there is really no limit to what government may compel. And if this example of cronyism is okay, who will balk at any other economic or ideological discrimination? The only limit the court seemed to recognize during the oral argument was labels that overtly promote invidious discrimination,
IV
The court has taken a rationale developed in a specific context and applicable to
There has never been, and never will be, a radically new [judgment] of value in the history of the world. What purport to be new systems or (as they now call them) ‘ideologies,’ all consist of fragments from the [natural law] itself, arbitrarily wrenched from their context in the whole and then swollen to madness in their isolation....
C.S. Lewis, The Abolition of MaN 43M4 (Harper Collins 2001) (1944). That is what the court now announces. What was merely an observation in the wеll-ordered framework of Zauderer now becomes an overarching principle that subsumes the First Amendment. And it does so to facilitate coercion and the imposition of orthodoxy. What is more uncontroversial than orthodoxy?
There can be no right not to speak when the government may compel its citizens to act as mouthpieces for whatever it deems factual and non-controversial and the determination of what is and what is not is left to the subjective and ad hoc whims of government bureaucrats or judges. In a world in which the existence of truth and objective reality are daily denied, and unverifiable hypotheses are deemed indisputable, what is claimed as fact may owe more to faith than science, and what is or is not controversial will lie in the eye of the beholder.
AMI’s counsel began the en banc argument by positing an absurdity no sensible court could countenance — that Zauderer somehow permits the government to compel speech based on “any interest, no matter how articulated, no matter how speculative.” Today, the court’s commitment to country-of-origin labeling leads it to willfully distort the fundamental holding and limitations of Zauderer and a virtually unbroken line of Supreme Court precedent to do exactly that — a perniciously Procrustean solution that hacks the First Amendment down to fit in the government’s hip pocket. I will not join the carnage.
. Accord United States v. United Foods, Inc.,
. Significantly, in Milavetz, the Court also declined to adopt the government's overarching description of the rule as bearing a reasonable relationship to a "valid state interest.” See Br. for the United States at 55, Milavetz,
. When compelled disclosures do not contain "purely factual and uncontroversial information'' to correct deception in advertising, strict scrutiny applies. Zauderer,
. See AMI’s First Amended Complaint, Am. Meat Inst. v. USDA,
. See George Orwell, Nineteen Eighty-Four (1949).
. See Tr. of Oral Arg. at 56, Am. Meat. Inst., No. 13-5281 (D.C.Cir. May 19, 2014) (en banc) (Chief Judge Garland making the government’s point that "it [is] a violation of the Constitution to discriminate on the basis of national origin among people already in the United States”).