American Meat Institute v. United States Department of Agriculture

“faithfully” juries presumption to- analysis move instructions follow objectively An error. plain finding

ward then, pre- have attorney, would

reasonable error review. plain this issue

sented ineffective to establish is sufficient

That counsel under appellate

assistance tois appropriate relief

Strickland. issue appeal on the a Payne belated

afford ineffectively present. failed to

that counsel 420; v. Roe, F.3d Mason (7th Cir.1996). 887, 902

Hanks, 97 F.3d district judgment of the

Accordingly, the reversed, the case remand-

court is of habeas to issue writ

ed with directions unless, whatever reasonable

corpus within deems the district court time

period of ap- afforded new Payne is

appropriate, may raise the burden

peal in which he omitted -from his issue

proof instruction Evitts, e.g., appeal. direct

original 830; Lewis v. (3d Cir.2004);

Johnson, 359 F.3d Booker, 220 F.3d v.

Hughes Tate, F.3d

(5th Cir.2000); Mapes v. Wilson, (6th Cir.2004); Shaw v.

187, 195 (7th Cir.2013); Johnson (10th 1215, 1230 F.3d Champion,

Cir.2002). INSTITUTE, MEAT

AMERICAN al., Appellants

et OF DEPARTMENT STATES

UNITED

AGRICULTURE, al., Appellees. et 13-5281.

No. Appeals, Court of States

United Circuit. Columbia

District of May 2014.

Argued July

Decided Abram,

were Jonathan L. Judith E. Cole- man, Mary Helen Wimberly, and Elizabeth B. Prelogar. Keisler,

Peter D. Cohn, Jonathan F. Er- Myers, ika L. Brand, Rachel L. Steven P. Lehotsky, Quentin Riegel were on the brief for amici curiae The National Associ- Manufacturers, ation of et al. in support of appellants.

Jonathan Hacker and Anton Metlitsky were on the brief for amicus curiae Gro- cery Manufacturers Association in support of appellants.

Daniel Tenny, Attorney, Depart- Justice, ment of argued the cause for ap- pellees. With him on the briefs were Stuart F. Delery, Attorney Assistant Gen- eral, Jr., Ronald C. Machen U.S. Attorney, Stern, B. Mark Attorney. Terence P. Stewart on the was brief for intervenors United States Cattlemen’s As- sociation, et al. in support appellees. Zachary B. Corrigan, A. Murray, Julie Nelson, Scott L. and Allison M. Zieve were on the for brief amici curiae Food and Watch, Inc., Water et al. support of appellees.

Jonathan R. Loworn and Aaron D. Green on were the brief for amici curiae Association, American Grassfed et al. in support appellees.

George A. Kimbrell onwas the brief for amici curiae Center for Food Safety, et al. in support of appellees.

Mark E. Greenwold was on the brief for amici curiae Tobacco Control Legal Con- sortium, et al. support appellees. Stephan E. Becker on the brief was amicus curiae The United Mexican States in support of neither party.

Alan Kashdan was on the brief for ami- E. argued Catherine Stetson cus cause curiae Government of Canada in sup- for appellants. her With port the briefs party. of neither at is- disclosure mandates encompass the GARLAND, Judge, Chief

Before: ROGERS, TATEL, HENDERSON, here. sue KAVANAUGH, GRIFFITH, BROWN, WILKINS, PILLARD,

SRINIVASAN, WILLIAMS, Senior Judges, Circuit required country-of-origin Congress has Judge. Circuit foods, including some variety a of labels on 1638, 1638a, §§ 7 U.S.C. products, meat by filed Senior for the Court Opinion Agriculture Secretary of tasked the Judge Circuit WILLIAMS. In the § 1638c. implementation, by filed part concurring Opinion statute, not define Congress did original Judge ROGERS. Circuit leaving that to the “country origin,” of 107-171, § 116 No. agency. Pub.L. filed judgment in the concurring Opinion (2002). delaying the After 533 Stat. by Judge KAVANAUGH. Circuit see, e.g., Pub.L. implementation, statute’s by filed Circuit Dissenting opinion (2004), 108-199, § 118 Stat. No. Judge HENDERSON. to define amended it Cоngress filed Circuit Dissenting opinion origin,” Pub.L. No. “country of BROWN, Judge Circuit Judge which (2008). § Stat. joins. HENDERSON 20,843 Cong. Rec. See also 153 Peterson) (statement (explaining Rep. of WILLIAMS, Judge: Senior Circuit compromise as a amendment the 2008 Secretary regulation of Reviewing delayed country-of-origin man- allow the disclosure of that mandates Agriculture effect). cuts, meat into For go date to about meat information country-of-origin country least, statute defined the amended rejected court panel of this products, a where the animal origin based on First Amendment statutory and plaintiffs’ born, raised, slaughtered been plaintiffs —the panel found challenges. The major steps. 7 U.S.C. production three and af- on the merits unlikely to succeed 1638a(a)(2). § a pre- denial of district court’s firmed the First Amend- injunction. On the liminary we refer to inter- Secretary, The whom claim, read Zauderer panel ment delegate Agricul- with his changeably Counsel, Disciplinary Office of (“AMS”), first Marketing Service tural 85 L.Ed.2d Mandatory rules promulgated (1985), mandates apply to disclosure Labeling, Fed.Reg. Country Origin other than addressing problems aimed at 2009) (“2009 rule”). (Jan. 15, The (which mandate at issue deception explicit identification rules did not demand remedy). designed to Zauderer had been occurring in each production step(s) of the court Noting prior opinions simply more country, but called listed application such an might be read to bar starting “Product labeling phrase with a Zauderer, that the case panel proposed or more of,” by mention of one followed shortly court The full reheard en banc. be § The 65.400 countries. 7 C.F.R. Order, American Meat voted to do so. pro- for a rule also made allowance USDA, 13-5281, 2014 No. WL Institute “commingling.” known practice duction 2014) (D.C.Cir. (vacating Apr. cuts from labeling of meat This made on Mar. judgment issued to- origins processed animals of different banc). now rehearing en We ordering day relative- single production gether on reach be- in fact does hold just name all the the label could sufficiently ly simple; yond problems deception, origin countries of for the commingled ani- statute and the First Amendment. This (e)(4). 65.300(e)(2), § mals. Id. led to the decisions summarized at the outset opinion. of this After 2009 rule’s adoption, Canada and Mexico filed a complaint with the Dis argues AMI that the 2013 rule violates pute Body Settlement of the World Trade its First right to freedom of Organization. In duе course WTO’s speech by requiring toit disclose country- Appellate Body found the rule to in of-origin retailers, information to who will violation of the WTO Agreement on ultimately provide Tech the information to con- nical Barriers to Trade. See Appellate 1638a(e). sumers. See 7 § U.S.C. Body Report, United question us, States — Certain before framed in the order Country (COOL) Origin Labelling review, Re en banc granting is whether the quirements, (June 29, test set Zauderer, forth in WT/DS384/AB/R 2012). 651, gravamen of 2265, The the 105 WTO’s deci S.Ct. applies to government appears sion to have an objection beyond been to interests consumer deception. In- stead, the relative imprecision of AMI says, the we information should apply gen- the ¶ required eral by the 2009 rule. test for See id. speech commercial 343. restric- In a tions different Hudson, section its formulated in opinion, the Central 447 Appellate U.S. Body seemed agree to S.Ct. 2343 the Giv- en the scope United order, States the country-of-origin court’s label we as- ing general in sume the can legitimate serve a correctness of the panel’s rejec- objec ¶ tive in tion of informing plaintiffs’ statutory consumers. Id. 453. A claims.

WTO deadline compliance with the ruling. arbitrator to bring gave its requirements the United States a into ties is that The starting point common to Zauderer ^{[*] [*]} applies ^[*] to govern- both par- Secretary

The responded with a rule ment mandates requiring disclosure of requiring precise more “purely information —re- factual and uncontroversial infor- vealing location production each mation” appropriate prevent deception step. Mandatory Country Origin in Label- regulated party’s ing, 31,367 Fed.Reg. 2013) (May 24, speech. key The question for us is wheth- (“2013 rule”). For example, meat derived er the principles articulated in Zauderer from an animal born in Canada and apply raised broadly more to factual and uncontr- and slaughtered in States, the United oversial required disclosures to serve other which formerly could have been government labeled AMI argues interests. also “Product of the United States and Cana- if even Zauderer beyond extends cor- da,” would now have to be labeled “Born rection of deception, Canada, Raised and Slaughtered in the no interest in country-of-origin labeling United States.” In a great matter of con- enough substantial to sustain chal- plaintiffs cern to because of its cost impli- lenged rules. cаtions, the 2013 rule also eliminated the Zauderer itself not give does a clear flexibility in labeling allowed commingled answer. Some of language suggests 31,367/3. animals. at Id. possible confinement to correcting decep-

The plaintiffs, a group of trade associa- tion. Having already described the disclo- tions representing producers, livestock sure mandated there as limited to “purely feedlot operators, packers, and meat whom factual and uncontroversial information we’ll collectively call American Meat Insti- about the terms under which [the transac- (“AMI”), tute challenged the 2013 rule tion proposed],” said, was the Court “we district court as a violation of both hold that an rights advertiser’s are ade- opinion, in the 2265. Later 105 S.Ct. long as disclo- [such] protected

quately First Amend that “the observed reasonably related the Court are requirements sure re by disclosure implicated interests ment preventing decep- interest State’s substantially weaker quirements at of consumers.” tion actually speech at stake when (It that the those finding no made 2265. n. 105 S.Ct. Id. likely suppressed.” at “more message was advertiser’s the disclosure took noting it,” 2265. After inform which than to public deceive and uneontr- “purely factual the form of subject message constitutionally would Hudson, the terms under about oversial information See Central ban. outright available,” 2843.) will be services [the] The which 100 S.Ct. interest speaker’s characterized Court application later own Court’s the extension Milavetz, “minimal”: “Because P.A. Milavetz, & Gallop to commer protection First States, 130 S.Ct. United by the justified principally (2010), cial also focused L.Ed.2d the information such advertisements, to consumers of value misleading remedying appellant’s constitutional speech provides, invoked the sole which was providing in not ly protected interest Id. government. in his adver cases, factual information particular of both was subject Given minimal.” Id. tising is express the rule in for the Court natural (citation omitted). told, Zauder All could have language such terms. in speaker’s the of er ’s characterization of the circum- descriptive simply been disclosure of such opposing in forced terest applied Court new which stances to the inherently seems information as “minimal” preclude rule, have aimed it could decep of beyond problem the аpplicable those circum- beyond any application See, found. tion, circuits have as other Virginia, v. Cf. Cohens stances. (1821) City v. N.Y. N.Y. Ass’n Wheat.) 399, e.g., State Rest. (6 264, 5 L.Ed. 257 (2d Health, 114, 133 Cir. 556 F.3d extending Bd. (Marshall, C.J., warning against of Rowe, v. 2009); Mgmt. Ass’n Pharm. Care into differ- opinion of an language general (1st Cir.2005) (Torruella, 429 F.3d contexts), in Arkansas Game quoted ent — J.); (Boudin, States, J.); Dyk,& id. at 316 C.J. v. United Comm’n and Fish curiam) the (explaining that (per at 297-98 U.S. -, 184 L.Ed.2d Judge Boudin and Judge of opinion Chief the First Amend controlling on Dyk is with which Zauderer language The issue); Ass’n v. Elec. ment Nat’l Mfrs. however, sweeps far approach, justified its Cir.2001). (2d Sorrell, 104, 113-15 272 F.3d in remedy interest broadly the more in that other cases To the the extent recounting ele deception. After ing holding to the Hudson, may be read as this circuit Zauderer re ments Central to cases contrary limiting and Zauderer light unnecessary that test jected to an interest government points which between disclo the “material differences now overrule correcting we deception, outright prohibi requirements sure v. Zauderer, e.g., Ass’n them.1 Nat’l 471 U.S. at speech.” tions on of Mfrs. view, judges panel recognized that other separate in her dissent Judge Henderson contrary opinion reasonably view and panel might take criticizes the now-vacated language stating panel's view that the accordingly the court to consider called for banc, National Association Reynolds RJ. a call to which scope of Zauderer en limiting NLRB Zauderer to affirmatively. pres- responded court Manufacturers did not deception-correction con- instances of consequence. opinion is the ent holdings. Whatever the merits stitute SEC, (D.C.Cir.2014); 748 F.3d 370-71 preventing exploitation commercial of stu- NLRB, Nat’l Ass’n dents, 717 F.3d and preserving tranquili- residential of Mfrs. (D.C.Cir.2013); 959 n. 18 Reyn- R.J. ty”). But here we think several aspects of FDA, olds Tobacco v.Co. government’s interest in country-of- (D.C.Cir.2012). origin labeling for food combine to make the interest substantial: the context and Zauderer, In applying we first long history of country-of-origin disclo- must assess adequacy of the interest sures to enable consumers to choose motivating the country-of-origin labeling products; American-made the demonstrat- that, AMI argues scheme. assuming even ed consumer in extending interest country- here, applies of-origin labeling to products; food utterly has failed to show adequate the individual health concerns and market interest in making country-of-origin infor impacts that can arise the event of a mation available to consumers. AMI dis food-borne illness outbreak. Because the parages sim interest motivating the 2013 rule is a sub- being ply of satisfying consumers’ one, stantial we need not decide whether a “idle curiosity.” Counsel for AMI ac lesser interest could suffice under Zauder- knowledged during argument oral that her er. theory logical would aas matter doom the statute, “if only justification that Con Country-of-origin information has an gress justification is the offered it historical pedigree that lifts well above ” offered here.... Argument Oral Tr. “idle curiosity.” History can be telling. USDA, American Meat Institute v. No. Freeman, In Burson v. (D.C.Cir. 2014) (en banc). May 19, 119 L.Ed.2d 5 (plu rality opinion), for example, Court, ap Beyond the interest in correcting mis plying scrutiny strict to rules banning elec leading or confusing speech, tioneering within a 100-foot zone around Zauderer gives little indication what polling places, found an adequate justifica type of might particu suffice. In tion in a “long history, a substantial con lar, Court has not made clear sensus, and simple common sense.” See whether permit Zauderer would govern It, Inc., also Fla. Bar v. Went For 515 U.S. ment reliance on interests that do not 2371, 115 S.Ct. 132 L.Ed.2d 541 qualify as substantial under Central Hud (1995) (citing Burson for the proposi same standard, ’s son a standard that itself tion). And country-of-origin label man seems elusive. Cf. Kansas v. United dates indeed States, “long have a 436, history.” (D.C.Cir.1994) 16 Con F.3d 443 gress has been (“Indeed, imposing similar mandates pedestrian nature of those 1890, giving since such just interests rules a run affirmed as substantial calls into years. short of 125 question 1890, See Tariff Act of governmental whether inter 1244, 6,§ 567, ch. except 613; 26 Stat. already those United by found trivial est— (2d Ury, 28, States substantial.”); Court —could fail to 29 be Cir. 1939); Fox, 1930, Board see 497, also Tariff Act of 469, Trustees ch. 492 U.S. of 475, 304, § 3028, 106 590, (current (1989) 46 Stat. 687 388 L.Ed.2d version at (finding 1304); § a ban 19 applied U.S.C. “Tupperware Wool par Products Label in a college ties” dormitory ing 1939, Act permissi of be as amended Drug Price bly based on Competition the state’s substantial inter and Patent Term Restoration ests “promoting 1984, educational rather of 98-417, Act 304-05, §§ Pub.L. No. (current commercial atmosphere on SUNY’s Stat. 98 1604 at version campuses, promoting safety security, § 68b(a)(2)(D)); U.S.C. Fur Products La- Wu). pro- though the Rep. Even ment of 177- Stat. § Act, ch.

beling imported for food steps abroad (current duction (1951) U.S.C. version degree to a Iden- Products States 69b(2)(F)); Fiber into the United Textile § 85-897, monitoring, § Act, No. subjеct Pub.L. to U.S. tification (current (1958) version at States Mexican Brief for United Stat. see 70b(b)(4)-(5)); American Auto- 4-6, § reasonable it seems 15 U.S.C. Amicus Curiae at Act, No. Labeling Pub.L. many mobile con- anticipate Congress to for (current (1992) ver- § 106 Stat. that had been food may prefer sumers 32304). § at 49 U.S.C. sion govern- particular a continuously under scrutiny. (as ment’s direct in Burson was relied on history The n action, here) legislative First of purely be- expressed the also legislators Some judiciary. But rulings by the special a con- have people would lief Burson, majority of “[t]he where just as origins of geographical cern about originally adopted were laws [the] in anec- is manifest they eat. This what 1890s,” record, legislative in the appearing dotes that consumers consensus” “time-tested cantaloupe mar- of the collapse such as the origin of geographical to know want cantaloupes imported some ket when weight material purchases has potential and consumers to be contaminated proved itself, 112 S.Ct. 1846. and of whether to determine unable were country-of- extended Congress that come from the shelves had melons on against so to food did mandates origin Cong. Rec. country. See 148 has made val- backdrop that historical Thurman). (statement Of course Rep. of information to particular product of this ue suggests the broadly the anecdote more common sense. a matter consumers in the event utility of these disclosures Congress identi- members Supporting known have any disease outbreak enabling cus- purpose fied the ‍​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌​‌‌‌‌‍statute’s foreign or do- country origin, specific based on choices to make informed tomers mestic. they wished products characteristics by sur- further bolstered The record is States su- including United purchase, reviewed, indicating as one such veys AMS production process of the entire pervision of consumers would percent that 71-73 Cong. Rec. hygiene. for health country-of-origin infor- willing pay (2002) (statement Rep. Hooley, Mandatory food. their mation about amendment co-sponsor country-of-origin Fed.Reg. Labeling, 68 Country Origin of Bill) (mentioning “buy Farm to 2002 2003) 61,944, 61,955/2 Oct. (proposed motivating safety interests and American” 60) (“2003 (to pt. 7 C.F.R. be codified at country-of-origin in- consumers’ desire rule, 2013 78 rule”); see also proposed (statement formation); of Rep. id. at 5493 31,375/3 (noting that commen- at Fed.Reg. 20,- Wu) (samе); Rec. Cong. 153 see also study showing con- referred to a ters had Bono) (call- (statement (2007) Rep. 847 quite The AMS willingness pay). sumer labeling “a matter of country-of-origin ing in such noted vulnerabilities properly expressed a belief safety”). Some public con- point obvious is data. Most meat’s national information about that with their willingness sumers tend overstate many American meat would choose origin, all, possibly sound the data pay; after it would in the basis of belief useful, a “Yes” answer on giving and Cong. e.g., 148 Rec. truth better. proposed cost a nickel.2003 survey doesn’t (2002) (statement Hooley); Rep. 61,955/3; also see (state- rule, Fed.Reg. at id. (statement Thune); Rep. (reit- rule, 31,377/3 Fed.Reg. at not think do the constitutionality of a stat- erating agency that the no found available ute should bobble up down at an ad- surveys using consumer sufficiently com- ministration’s discretion. plex modeling techniques). But such stud- any event, In the agency has sufficiently ies, combined with many favorable invoked the by interests served the stat- agency comments the received all during ute, both during the rulemaking, rule, rulemakings, reinforce the historical (“This Fed.Reg. 31,377/2 rule ... treating basis for such information as valu- the result of statutory obligations imple- rule, able.2013 Fed.Reg. 31,376/1-2. ment the [country-of-origin] provisions of In light legislators’ arguments, the 2002 and Bills.”); 2008 Farm id. at

read in the context of country-of-origin 31,370/1, and in litigation, Federal Appel- labeling’s long history, we need not consid 25, 26, lees’ Br. American Meat Institute er to what extent a mandate reviewed v. No. (D.C.Cir.2014), USDA under Zauderer can rest on “other suppo has certainly not disclaimed those inter- sitions,” opposed precise “the inter ests, see Oral Argument Tr. Ameri- put by ests forward the State.” See Eden can Meat Institute v. No. 13-5281 USDA Fane, 507 U.S. 113 S.Ct. field (D.C.Cir. 2014) (en banc). May 123 L.Ed.2d 543 The statute (from Finally, agency statements prior itself mandates labels, country-of-origin rulemakings) claiming that country-of-ori- rule, 78 Fed.Reg. 31,377/2, gin labeling serves safety no food AMI makes no claim that agency’s not inconsistent with of the gov- exercises of its discretion are of constitu litigation ernment’s positions here. Sim- (and tional moment we are reviewing only ply because the agency believes it has claim, AMI’s constitutional sepa other, superior means to protect food safe- rate statutory interpretation issue it raised ty doesn’t delegitimize a congressional de- panel). before the As Chenery “[t]he doc empower сision to consumers to take pos- trine v. Chenery Corp., [SEC 318 U.S. sible country-specific safety differences in 87 L.Ed. 626 ] has practices into account. Nor does such an no to” application agency required actions agency belief economy-wide undercut by statute, Morgan Stanley Capital Group of confining benefits impact market Inc. v. Public Utility Dist. No. disease outbreak. 527, 544-45, 171 L.Ed.2d (2008), “precise interests” served Having determined the interest by the 2013 rule are simply those advanced by served the disclosure mandate is ade- by Congress in adopting the statute. quate, what remains is to assess the rela- tionship between identi- pause

We to note implications of a fied means and its chosen ends. Under rule under which a statute’s constitutional- Hudson, Central we would ity could be doomed agency fumbling determine (whether regulatory whether technique “the accidental) [is] deliberate or per- interest,” proportion to fectly inquiry [the] adequate legislative prop- interests comprised of erly assessing whether by congressional stated the proponents. chosen “directly Such means a rule would the allow the state advance[s] executive to inter- torpedo otherwise est involved” legislation valid and it simply narrowly whether is by failing to cite to the tailored to court the serve that end. interests Central Hud- son, on Congress which 564, 2343; Fox, And it relied. would U.S. 100 S.Ct. at allow the next 480, administration to revive the 492 U.S. at 109 S.Ct. 3028. Zauder- legislation by citing those interests. We er ’s method of evaluating fit differs in that of relation- scope or character precise significantly not though perhaps

wording, ship. these facts. substance, least on at in tendency of a disclosure analyzed The self-evident has Court the

When get recipients that the re- to assure “directly advance” mandate Hudson’s Central explain may part information commonly required evi- mandated it has quirement, many goal, is the such why, See where that effectiveness. a measure’s dence for decades with- persisted at mandates have U.S. Edenfield, 507 recognized Zau- their constitution- anyone questioning out But as the Court 1792. hardly group is have been evidentiary parsing long-lived In derer, ality. this such uses a but also government country-of-origin labels only the necessary when goal a to achieve mandates mandate routine disclosure many other disclosure particular attributes, a for in- inсluding, about informing consumers product about content, that the trait, assuming of course stance, fiber product disclosures qualifies consumers informing for cloth- for instructions pt. reason care C.F.R. at 471 U.S. listing interest. adequate items, pt. as ing 16 C.F.R. Milavetz, 559 2265; see also § 101.4. ingredients, C.F.R. (referring to Zau- at 130 S.Ct. 1324 “nar the reference Notwithstanding exacting scru- “less providing derer made the clear tailoring,” Court row Zauderer, of res the doctrine like tiny”). on the final government’s burden that the circum- specific identifies ipsa loquitur, a is to show “rea Hudson factor Central part of its carries party a stances where Fox, fit,” at sonable see way a different from evidentiary burden proportion,” a “reasonable or S.Ct. See, e.g., May Bell v. customary one. the Edenfield, 507 U.S. S.Ct. see Co., F.2d Dep’t Stores and ends. To the between means There, proves (D.C.Cir.1989). plaintiff a is in interest government’s that the extent meeting specified crite- by negligence particular receive assuring that consumers (such exclu- the defendant’s proving ria (as is when mandat plainly information causing agency control over sive deception), correct ing disclosures that through here, acting only a injury); self-evidently satisfied fit means-end mandate, the reasonably crafted disclosure only through a acts government when showing its burden meets reasonably crafted mandate disclose that the mandate advances infor factual uncontroversial “purely and uncontr- factual making “purely product or attributes of mation” about to the accessible re- information” oversial words, In other being offered. service to match Zauderer cipients. Of course govern a achieving method particular mandated must re- logically, the disclosure always almost demon ment interest will by the service offered good late to the means-ends relation a reasonable strate in Zauderer a link that regulated party, that the disclosure showing ship, absent facts, as the in the itself was inherent way in a “unduly burdensome” necessarily related to mandate disclosure speech,” id. protected “chill[s] Zauderer, 471 goods such or services. 651, 105 S.Ct. (acknowledging Thus, pre-condi- that the extent mandate involved of Zauderer warrant application tions to infor- factual uncontroversial “purely “directly will mandate inferences [the] which under mation about the terms interest and avаilable”). advance” purposes For services will be fit” between means show “reasonable case, not decide we of this need ends, one and could think of Zauderer “one-sided ... favoring unionization”), largely application as “an of Central Hud- country-of-origin facts are not of that type. son, where several Central Hudson’s AMI does not suggest anything controver- already elements have been established.” sial about message that its members Supplemental AMI Br. at 9. are required to express. case, In this the criteria triggering the Nor does the mandate run afoul of the application of Zauderer are either unchal- warning Court’s that Zauderer does not lenged substantially or unchallenged. The leave the state “free to require corpora requires decision the disclosures to be of carry tions to the messages of par third “purely factual and uneontroversial infor- ties, where the messages themselves are mation” about good or service being against biased are expressly contrary to Zauderer, offered. 471 U.S. at the corporation’s views.” Gas & S.Ct. AMI does not Pacific contest that Electric Co. v. Public Utilities Commis eountry-of-origin labeling qualifies as fac- sion, 1, 15-16 n. tual, and the conveyed facts directly 89 L.Ed.2d 1 (plurality opinion). informative of intrinsic characteristics of product AMI selling. Finally, though may obvious, be we As to “controversial,” whether it is AMI note that Zauderer cannot justify a disclo objected to “slaughter” the word in its sure so burdensome that it essentially op reply Though brief. it seems a plain, blunt erates as a on restriction constitutionally for a plain, action, word blunt we can protected speech, as in Ibanez v. Florida understand a claim that “slaughter,” used Department Business and Professional a product origin, might convey a Regulation, 512 136, 146-47, 114 certain innuendo. But we need not ad- 2084, 129 L.Ed.2d (1994), where a such a dress claim because the 2013 rule required disclaimer was so detailed that it allows retailers to use the term “harvest- “effectively out rule[d] notation of ‘spe instead, 31,368/2, ed” 78 Fed.Reg. at designation cialist’ on a business card or posed AMI has objection no to that. And letterhead, yellow or in a pages listing!” AMI disagree does not with the truth of Nor can it sustain mandates that “chill[] required disclosed, the facts to be so there protected Zauderer, speech.” is no clаim they that are controversial in 471 U.S. at 105 S.Ct. 2265. AMI has that sense. made no claim of either of these conse We also do not understand country-of- quences. origin labeling to be controversial sense that it a message communicates Accordingly we answer affirmatively the is controversial for some other reason general question of whether “government dispute about simple factual accuracy. Cf. interests in addition correcting decep- SEC, Nat’l Ass’n v. 748 F.3d at of Mfrs. tion,” USDA, American Meat Inst. 371 (questioning but not deciding whether F.3d (D.C.Cir.2014), 1n. can be the information mandated was factual and invoked to sustain disclosure mandate uneontroversial). Leaving possi- aside the Zauderer, under specifically find the bility required some factual disclo- interests invoked here to be sufficient. could sures incomplete so one-sided or judgment We reinstate the leave un- they qualify would not as “factual and opinion touched the panel with re- uneontroversial,” cf. Nat’l Ass’n of Mfrs. spect the remaining issues on appeal. NLRB, 717 F.3d 958 (describing one party’s argument that disclosures were So ordered.

28 commercial speech, ful, non-misleading concurring in Judge,

ROGERS, Circuit that a court Court instructed Supreme part. the asserted “whether must determine opin- of the court’s join much Although I substantial,] is interest governmental my- to disassociate ion, separately I write directly advances regulation whether reformulation of suggested from the self asserted, interest governmental for First Amend- standards separate than is not more extensive it is whether speech in of commercial protection ment 447 interest.” necessary to serve Disciplinary Coun- Zauderer Office of in 566, But Zau- 100 S.Ct. 2343. at 2265, 626, sel, 471 U.S. analy- derer, began its Court although the (1985), Hudson and Central L.Ed.2d 652 speech restrictions and discussing both sis v. Public Service Corp. & Electric Gas by referring to requirement a disclosure 557, York, 447 U.S. New Commission of Hudson, see Central the standard under 2343, L.Ed.2d 341 S.Ct. when S.Ct. at 471 U.S. before defined the issue court The en banc challenged disclosure analyzed the Court it as whether the argument that rejected requirement only when applies of Zauderer standard direct needed to show ad- preventing interest is interest, under as review of its vancement 2014). (Apr. Be- Order deception. See see required, have Hudson would Central Zauderer is so court holds cause the 2265; 650, 105 Central Hud- id. at S.Ct. limited, governmental interest and that the son, at 100 S.Ct. 2343. Thе 447 U.S. 21-26, substantial, at there no Op. see the disclo- analyzing instructed in Court broadly. speak more today occasion it suffices instead requirement that sure application an simply as Viewing Zauderer require- the “disclosure determine whether special circum- of Central Hudson reasonably related to the State’s ments the en stances, suggested to as AMI has deception of con- preventing 8-11, Br. finds court, Supp. see AMI banc Zauderer, sumers.” prece- Supreme Court in neither support explained that “dis- S.Ct. 2265. Court of this court our precedent nor the dent much more trench requirements closure court Although the en banc sister circuits. interests than narrowly on an advertiser’s endorsing this reformula- short of stops id., speech,” on indicat- prohibitions flat do could think of tion, only that “one stating tracing was not thereby that the Court ing application of Cen- largely Hudson through Central but a shortcut (citation Hudson,” at 27 inter- Op. tral in which the interests defining category omitted), blurring the mark quotation nal apply- In less threatened. at stake were portends un- the standards lines between Milavetz, Zauderer, the Court Gal- ing further in- confusion absent necessary States, Milavetz, v. United lop & P.A. Court. struction from 176 L.Ed.2d 79 S.Ct. (as (2010), of the standards mandated disclosure The reformulation concluded that dissent- approach, professionals assisting see requirements the dissent’s well as Brown, subject joined by bankruptcy were Judge consumers with ing opinion 44-46), scrutiny described in Henderson, appears exacting to to the “less Judge Zauderer,” 249, 130 S.Ct. rationale id. at Supreme Court’s contravene Amendment, First see served not violate purposes and the did in Zauderer again treat- of commer- protection First establishing separate ing Zauderer Hudson the Central speech. cial Under also id. at inquiry. level of standard, reviewing restrictions law- (Thomas, J., S.Ct. 1324 concurring part in the efficiency of the “marketplace of (describ- and judgment) concurring ideas.” Protection of the robust and ing Zauderer as “a still lower standard of free flow of accurate information is the scrutiny”). principal First justification Amendment for protecting commercial

Fairly understood, speech, Supreme and Court’s requiring analysis of disclosure of disclosure truthful requirement informa- tion promotes goal. Zauderer does not In case, reformulate the Central such a then, Hudson but exacting standard rather less scrutiny еstablishes required different based on standard the “material than truthful, where nonmisleading com- differences between disclosure require speech mercial is restricted. outright ments and prohibitions (citations omitted); Id. see also Pharm. speech.” 650, 105 S.Ct. 2265. Mgmt. Rowe, Care Ass’n v. 429 F.3d Similarly, in Liquormart, Inc. v. Rhode (1st Cir.2005) (controlling opinion of Island, 134 Boudin, C.J., J.); Dyk, Post, Robert (1996), L.Ed.2d 711 explained Court The Constitutional Status Commercial a State regulates “[w]hen commercial Speech, 48 U.C.L.A. L.Rev. messages protect consumers from mis The en banc holding court’s that Zau- leading, deceptive, aggressive or sales derer applies to government disclosure in practices, requires or the disclosure of beyond terests preventing deception ac beneficial information, consumer the pur knowledges that the First Amendment pose of regulation its is consistent with the values protection underlying of commercial reasons for according constitutional pro speech naturally lead to a distinction be tection to commercial speech and therefore tween restrictions, disclosures and but it justifies less than strict review.” Id. at appears not to acknowledge the full impli 501, 116 1495 (plurality S.Ct. opinion). cations of the distinction: Zauderer’s con This is with consistent long Court’s ceptual framework is what not only drives standing focus, in the commercial application its to disclosures serving other area, on the “consumer’s governmental interests, but also its less free flow of information,” commercial Va. rigorous level scrutiny. The dissent’s

State Bd. Pharm. v. Va. Citizens Con analysis fails to acknowledge that Zauder Council, Inc., sumer holding er ’s regard to the disclosure (1976), 48 L.Ed.2d 346 and requirement primarily rested on this dif “indispensable” role in proper “the alloca ference between disclosures and restric tion of resources in a free enterprise sys tions, not on the risk of deception. Yet tem,” id. at 96 S.Ct. 1817. As our this court and sister our circuits have un sister circuits have held in applying the derstood the Supreme Court to standard, have es Zauderer im tablished distinct position analyzing standards for of a commercial disclosure re First quirement challenges Amendment “accurate, govern involving factual, ment-imposed commercial information does not restrictions and offend the core disclosures. In Reynolds First R.J. Amendment Co. pro values of Tobacco (D.C.Cir. moting exchange efficient of information F.3d FDA 2012), protecting individual the court liberty distinguished interests.” Central Sorrell, Nat’l Elec. Ass’n v. Hudson review from Zauderer and likened Mfrs. (2d 104, 114 Cir.2001). the latter to rational-basis In review. Airlines, DOT, Such furthers, Spirit Inc. v. rather 687 F.3d 403 hinders, the First (D.C.Cir.2012), goal the court stated that “[dis the discovery of truth and contributes to closure requirements ... kind of the stan- articulation Court’s refers to the Court

of limitations and Zauderer. Hudson Central Hudson stan- dards the Central invoking when ‍​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌​‌‌‌‌‍applied review,” id. dard of KAVANAUGH, Judge, standard, Circuit stringent see a less

Zauderer judgment: in the understanding concurring Indeed, the 411-13. involve Hudson that Central require May the U.S. Government en from the is evident standards distinct la- product imported Chinese-made See Order case. in the instant order bane many read- For “Made in China”? beled 2014) 4, (instructing parties (Apr. ers, answers itself: question probably “[w]hether, under First address why explain us to requires This case Yes. mandatory Amendment, of judicial review require- a so, why such particular that is uncontr- factual and ‘purely disclosure the First under passes muster ment information, com- commercial oversial’ First Amend- precise Amendment. The preventing other than reasons for pelled a us concerns federal ment issue before proceed under properly can deception, country-of-origin labels requires law that compelled ..., such or whether products. food Coun- and other for meat under Cen- subject to review disclosure are of course familiar try-of-origin labels ”). opinions of our Hudson tral inMade Amer- consumers. to American effect, are to the same circuits sister in China. Made ica. Made Mexico. factually are and restrictions disclosures decades, Congress many And so on. For and, impacts their due to different distinct country-of-origin labels mandated such has interests, gov- Amendment on First agree I variety products. for a See, e.g., standards. by different erned the First Amend- majority opinion that Lottery, Inc. & v. City Tobacco Disc. longstanding those does not bar ment (6th States, 509, F.3d 554-55 674 United re- country-of-origin labeling commonplace Stranch, Cir.2012) (controlling opinion quirements. City N.Y. J.); Ass’n v. N.Y. State Rest. (2d agree all that the starting point, 114, As a Health, Bd. of stringent limits Ass’n, imposes 429 First Amendment Cir.2009); Mgmt. Pharm. Care (1st authority to either Cir.); Nat’l Elec. on the Government’s F.3d Mfrs. (2d Cir.). citi- by private Ass’n, compel speech But or 272 F.3d at 113-15 restrict v. Wenger, F.3d See Texas organizations. States v. see United zens Cir.2005). (10th Johnson, 491 U.S. (1989); Wooley Maynard, v. L.Ed.2d 342 proposed AMI’s re- аssuming that Even 51 L.Ed.2d 752 430 U.S. S.Ct. Hudson and of the Central formulation (1977); State Board Edu- Virginia West impact has little Zauderer standards Barnette, 319 U.S. S.Ct. cation Amendment chal- of the First the outcome (1943). case This L.Ed. 1628 here, the lines between lenge blurring speech. The First commercial involves where, may sow confusion two standards speech, commercial protects on the the focus is not ade- example, speech are regulations here, interest, as quacy of the Court’s Cen- analyzed under for, evidentiary support but instead on the justify To laws Hudson framework. tral of, requirement. “fit” or the the Govern- speech, regulating commercial from the Su- Absent further instruction (i) identify gov- a substantial must ment ques- preme Court consideration (ii) interest and demonstrate decision, ernmental necessary to our tion when it is require- the law’s fit sufficient between veer from the has no the court occasion governmental ests); ments and that substantial see also McIntyre v. Ohio Elections interest. See Central Commission, Hudson Gas & Elec- tric Corp. Public Service Commission 131 L.Ed.2d 426 (Scalia, York,

New J., (“Where dissenting) the meaning of a 65 L.Ed.2d 341 (such constitutional text as ‘the freedom of speech’) unclear, the widespread and

I will address in turn how those two practices long-accepted of the American basic requirements Central Hudson apply people are the best indication of what fun- this case. damental beliefs it was intended to en- First, Hudson, under Central the Gov- shrine.”). The Government has long re- identify ernment must gov- substantial quired commercial disclosures to prevent ernmental that is served by the consumer deception or to ensure consumer question. law in Since its decision in Cen- health or safety. Those explain interests Hudson, tral the Supreme Court and justify the compelled commercial dis- that something stated less than a “sub- closures that are common and familiar to governmental stantial” interest jus- would consumers, American such as nutrition la- tify either a restriction on commercial bels and health warnings. e.g., R.J. speech or a compelled commercial disclo- Reynolds FDA, Tobacco Co. v. likewise, sure. And the majority opinion (D.C.Cir.2012) (noting that today does say governmental not that a there was no dispute Congress’s about au- interest that is less than substantial would thority require to health warnings on ciga- suffice to justify compelled a commercial packages). rette disclosure. But the Government cannot advance a What qualify interests sufficiently аs traditional anti-deception, health, or safety* substantial to justify the infringement on interest in this case a country-of- because speaker’s First autonomy Amendment origin requirement disclosure obviously that results from a compelled commercial does not serve Rather, those interests. Here, disclosure? as elsewhere in First the Government broadly contends that it law, free-speech history and has a substantial interest “providing tradition are guides. reliable See Brown v. consumers information.” Tr. of Oral Entertainment Association, Merchants — Arg. at 41. For Central purposes, Hudson -, U.S. however, it plainly is enough not for the (2011) (“a (if L.Ed.2d 708 long heretofore say to Government simply it has a unrecognized) of tradition proscription” in giving substantial consumers may sometimes justify restrictions on all, After information. would be true speech); Republican Party Minnesota of of all and White, requirements. v. That circular formulation would (2002) (“It drain the 153 L.Ed.2d 694 is true that a Central Hudson test of any meaning in the long-established universal and tradition of context compelled commercial disclo- prohibiting certain conduct a creates sures. Reynolds, R.J. 696 F.3d at strong presumption that the prohibition is constitutional.”) (fed- (internal 1221. Not surprisingly, governments quotation marks eral, state, local) omitted); Freeman, and Burson v. would love to have 191, 200-06, such pass spread a to preferred free their 119 L.Ed.2d 5 (1992) (plurality messages opinion) (history on the backs of others. But state restrictions on stated, electioneering supported Second Circuit has con- “Were conclusion that such sufficient, a restriction was sumer nec- interest alone there is no essary to serve compelling state’s inter- end to the information that states could labeling, Country-of-origin beling? about to disclose manufacturers

require understood, many American causes widely methods.” International production their reasons) (for Amestoy, variety a consumers Association Dairy Foods Cir.1996). (2d consum- American- Some percentage buy higher a F.3d their know Ameri- helps whether turn which in might products, ers want made citi- by U.S. farmers, made product manufacturers, was ranchers and U.S.-made can Some immigrants. by illegal manufacturers, zens foreign compared to know whether might want consumers why Con- farmers, That is ranchers. abortion. an performed has ever doctor country-of-origin mandated long gress know want to might consumers Some See, e.g., products. for certain disclosures owners. aof business’s affiliation political (2d 28, Ury, 106 F.2d United States hypotheticals, are not far-fetched These Cir.1939) country-of-ori- early (purpose Do level. the state or local particularly apprise “was to requirements labeling gin justify suffice consumer desires such thus to foreign origin and the public of such commercial disclosures compelled produc- advantage on domestic confer an adver- product or in information That historical goods”). competing ers of not, history and think I tisement? First Amendment critical for pedigree kind support no for provide tradition that the Gov- and demonstrates purposes power free-wheeling is substantial. interest here ernment’s disclo- compelled mandate relies on properly majority opinion rejection with this Court’s agree I sures. labeling country-of-origin history of governmental an undifferentiated of such that the Gov- finding laws as a basis agree I Reynolds. And in R.J. interest in this interest has a substantial ernment in the Second Circuit’s statement case. curiosity alone is Amestoy “consumer that said, in this case is one wrinkle That sus- strong enough state interest” not a actually has as- the Government whether disclosure. compelled commercial tain a American supporting interest in an serted today properly majority opinion The Id. justify in order to ranchers farmers and broad the Government’s does not embrace labeling requirement country-of-origin this argument. products. Wheth- and other for meat food argu- Government’s broad Although the an asserted such has er the Government label- meritless, country-of-origin ment is Central Hudson matters because interest his- by the Government’s ing justified is articulate the Government requires supporting in torically rooted interest it seeks to advance. interests farmers, manufacturers, and American 761, 768, Fane, 113 507 U.S. Edenfield foreign compete with they ranchers as (1993). And L.Ed.2d 543 S.Ct. manufacturers, farmers, ranchers. and during Branch refrained the Executive nu- Republic, early days of the Since the articulating from litigation expressly this further sought have laws merous U.S. American supporting interest in its clear interest, overtly and some- sometimes justify in order to ranchers and farmers debate subtly. Although economists times of the inter- law, apparently because leg- protectionist kinds of whether various might ensue. repercussions national consumers аnd over- help islation obvious, even if interest here But the doubt that economy, there is no all U.S. Branch for by the Executive unarticulated support and long sought Congress has comity. And more international reasons against U.S. industries promote various purposes, Hudson for Central point to the is that foreign competition. their How articulate the Congress did la- Members country-of-origin implicated by interest interest supporting American farmers closures. At the outset of opinion, Congress ranchers when enacted this Zauderer Court described the general country-of-origin labeling law. e.g., Central Hudson framework- in detail. Cong. Rec. (2002); And then the Court stated: “we ap- must see also id. at 1181. And Congress’s artic ply teachings cases,” of these includ- ulation of the interest suffices under Cen ing Hudson, Central to the three separate tral Hudson. Turner Broadcasting regulations state of attorney Cf. advertising System, FCC, Inc. v. 622, 662, 512 U.S. issue, including require- “disclosure 2445, 129 (1994) S.Ct. L.Ed.2d 497 (looking ments relating to the of contingent terms to statutory findings legislative history fees.” Zauderer v. Disciplinary Office of governmental discern the interests Counsel Ohio, Court served); Metromedia, Inc. v. City San 626, 638, 85 L.Ed.2d Diego, In applying the teachings of L.Ed.2d 800 (plurality opinion) Central Hudson to the state disclosure re- (looking to text of city’s ordinance to dis quirement, the Zauderer Court required cern the served). governmental interests that such mandatory disclosures be “pure- short,

In factual,” Government has a ly substan- “uncontroversial,” not “unduly tial this ease in burdensome,” supporting and “reasonably related to” American farmers and ranchers against the Government’s interest. Id. at their foreign competitors. 105 S.Ct. 2265. So Zauderer is best read simply as application Central Hud- question second under Central son, not a different test altogether. Hudson In concerns the fit between the dis- words, other Zauderer tells closure us requirement what Cen- and the Government’s tral Hudson’s plaintiff interest —as “tailored AMI reasonable succinctly puts it, manner” standard whether the means requirement disclosure context of compelled “tailored ain reasonable manner.” AMI disclosures: The Supplemental Br. at (quoting must be Edenfield, purely factual, un- controversial, U.S. at 1792); not unduly burdensome, see also National reasonably Association related to the Government’s of Manufacturers SEC, (D.C.Cir.2014) interest.1 (“must be a fit reasonable between means It important is to underscоre that those and Hudson) (inter- ends” under Central Zauderer requirements fit are far more omitted). nal quotation marks stringent mere rational basis review. it,

IAs read the Supreme Court’s deci- the Supreme When applies Court rational sion in Zauderer applied the review, Central basis it does not attach a host of Hudson “tailored in a reasonable manner” requirements of the kind prescribed by requirement to compelled commercial dis- Zauderer. Rational basis review is ex- obvious, 1. To state probably what is ("Of the Op. com- at 26 course to logi- match Zauderer pelled disclosure must abe about disclosure cally, the disclosure mandated must relate to product the question or service justi- in be good the regulated service or offered fied under Central Hudson and Zauderer. The v, party:...”); see also Zauderer Office of First govern- does not tolerate a Court, Disciplinary Counsel of of ment compel effort disclosures unrelated to Ohio, product or example, service—for a com- (state L.Ed.2d required attor- pelled (not disclosure on packages all food ney’s advertising to disclose "information just cigarette packages) cigarette that smok- about the terms under his which will services ing causes majority opinion, cancer. The as I available”). be it, read agrees principle. with Maj. opinion case, majority In this in this context and tremely deferential concludes, stringent Zau- those properly undoubtedly tolerate would The requirements are met. mes- derer fit policy-laden or moral mandates labeling requirement country-of-origin of bur- messages, controversial sages, factual, unduly is not purely here is that are issue labels, disclosures densome burdensome, above is explained and to the Government’s indirectly related only the Government’s related to reasonably none of that. tolerates Zauderer interests. Ameri- supporting longstanding mandatory disclo- limits tightly Zauderer sure, To and ranchers. can farmers that meets very narrow class to a sures “un- a is determining whether disclosure requirements. So Zauderer various some advocates, may be difficult in courts, controversial” that some extent cases, commercial compelled a choice portrayed have commentators how we should it is unclear part because Hudson stan- “tough Central between we should examine and what stan- assess “lenient and the Zauderer dard” mandatory disclosure whether a As I determine dard,” a false choice. I see that as of how regardless But controversial. elaborated it, applied and Zauderer read might requirement “uncontroversial” in a reason- Hudson’s “tailored on Central cases, poses the issue out in other play requirement and established manner” able mandated difficulty here. Unlike the little that the demanding requirements set of a Reynolds at issue R.J. a com- disclosures justify meet to must Government Manufacturers, Association majori- disclosure. National pelled commercial can- country-of-origin example, label equate Zau- does not ty opinion properly given “controversial” not be review and considered mere rational basis derer to evenhanded, factually straightforward, mandatory disclo- insists that properly in- nature of the readily understood all of the various here must meet sure formation, pedi- historical as well as the majority And the requirements. re- specific of this kind following: gree To agree I on the opinion and disclosure, Association National quirement. compelled justify a Cf. (disclo- F.3d at 371 Manufacturers, 748 articulates assuming the Government com- interest, essence requirement sure governmental substantial on its issuer to confess blood pelled “an that the disclosure must show Government 1216- hands”); Reynolds, 696 F.3d at uncontroversial, R.J. factual, not un- purely (disclosure com- requirements burdensome, reasonably related duly im- “inflammatory display of pelled the Government’s interest.2 Central between Zauderer and I see choice Although agree the results and most I Reynolds it is based reasoning and National choice because of R.J. Hudson as a false Manufacturers, disagree with I my Zauderer premise, Association view. on a mistaken description of as mere cases’ Zauderer those prongs to this applied Hudson’s fit Central Associa- basis review. See National rational and set context compelled commercial SEC, F.3d v. tion variety stringent requirements Manufacturers far forth (D.C.Cir.2014) (characterizing Zauder- basis re- demanding than mere rational more review”); Reynolds R.J. basis er as "rational today properly majority opinion view. The FDA, v. Co. F.3d Tobacco did not embrace recognizes that Zauderer (Zаuderer (D.C.Cir.2012) "akin to review is review, majority basis mere rational review”). description- of rational-basis That aspect of RJ. opinion thus disavows apply the led those in turn cases Zauderer Manu- Reynolds and National Association of the Zauderer test rather Central Hudson disturbing the results without facturers disclosures compelled to the test those cases. however, reiterate, in those cases. To at issue ages” and constituted cigarette “unabashed at- packages. In so doing, we re tempts to evoke emotion” jected and “browbeat two “narrow and well-understood customers”). exceptions general to the rule that content based speech regulations including com — pelled speech subject to strict scruti —are reasons, For those I uphold would this ny.” R.J. Reynolds, 696 F.3d at 1212 country-of-origin labeling requirement. (quotation omitted). marks The first of it, As I read majority opinion is consis- exceptions is at issue here— —which my tent with analysis. But I thought it “ covers ‘purely factual and uncontrover important to spell out each step of my sial’ disclosures are ‘reasonably [that] re analysis in greater detail. Bottom line: I lated to the State’s interest in preventing agree majority opinion that we deception consumers,’ provided the re should affirm the judgment of the District quirements are not ‘unjustified or unduly Court. ” burdensome.’ Id. (quoting Zauderer v. Counsel, Disciplinary KAREN HENDERSON, LECRAFT Office of Judge, Circuit L.Ed.2d 652 dissenting: (1985)). In R.J. Reynolds, majority I agree with Judge Brown that the en found the Zauderer standard inapplicable majority banc wrong on the merits and to the graphics warning requirement be join fully her well-reasoned and compelling “by terms, cause its own Zauderer’s hold But, dissent. me, for the life of I do not ing is limited to cases which disclosure understand got how we to the en banc requirements are ‘reasonably related to stage notes, case. As Judge Brown the State’s interest in preventing deception original panel wrong “was to contradict ” of consumers.’ Id. (quoting Zau Reynolds” R.J. solely because —and derer, 651, 105 471 U.S. at 2265); see panel wrong was on the merits. See (“[T]he also id. at 1214 government could Dissent at (citing Reynolds R.J. Tobac- not seek review under the lenient Zauder FDA, co Co. v. 696 F.3d er standard absent showing (D.C.Cir.2012)). The panel was wrong also advertisement at issue would likely mis simple reason that its merits deci- consumers.”); lead (“Zauderer, Iba- sion—whether not correct—did indeed nez, and Milavetz thus еstablish that a “contradict” our decision in Reynolds R.J. requirement is only appropriate and therefore should not have issued. if the government that, shows absent a One of our court’s most fundamental warning, there is a ... danger that an governing principles is the “law of the advertisement will consumers.”); mislead circuit doctrine” which decrees that (“[I]n id. at 1214-15 the absence of any decision of a three-judge panel of the court congressional findings on the misleading ” “is ‘the decision of the court.’ LaShaum nature cigarette packaging itself, there Barry, (D.C.Cir.1996) 87 F.3d justification is no under Zauderer for the (en banc) (quoting Revision Notes to 28 graphic warnings.”); see also Nat’l Ass’n 46). § U.S.C. “One three-judge panel, NLRB, 959 n. 18 of Mfrs. therefore, does not have the authority to (D.C.Cir.2013) (“In brief, a footnote to its overrule another three-judge panel of the Board states that its rule satisfies Yet, court.” Id. inexplicably, this is what ..., but it explain why does not happened here. that decision has slightest even the bear In Reynolds, R.J. we vacated the ing Zauderer, Food on this case. Under the and Drug Administration’s final rule government estab- may, consistently lishing mandatory graphics warnings on Amendment, First require a party to a particular that requirement disclo- sure to make transaction —not such a necessary support to is from interest party prevent in sures order concluding “[i]n but also requirement” (citing R.J. customers.”

deceiving its confu- consumer 1215)). likelihood of of the view F.3d Reynolds, 696 here, is no there deception shown or sion reliance emphatic repeated its Given scope of determine whether need to Zauderer of the applicability on limited government encompasses other Zauderer decep involving language standard —to interests”) original). in (emphasis majority plainly Reynolds R.J. tion—the Nonetheless, panel here de original Zauderer of applicability in considered the apply read as is that “Zauderer best its deci cided “necessary” to “integral” curing aimed at only to mandates ing Aam “holding.” sion, say, a that is (D.C.Cir. pur for other also to ones but Obama, deception 742 F.3d er v. nor Reynolds [Na neither and that (determination “integral poses, 2014) that was ... Association case tional disposition [a] of ultimate our of Manufacturers (D.C.Cir.2013) NLRB, rep ] F.3d 947 Cross v. binding precedent”); constitutes (D.C.Cir. contrary.” Am. holding to the a Harris, n. resents 1105 64 418 F.2d (AMI I), Dep’t Agric. Inst. v. U.S. 1969) (“The holding Meat between distinctiоn (D.C.Cir.2014), vacat 746 F.3d on whether turns and dictum (D.C.Cir. Apr.4, ed, point, 2014 WL opinion court, stating in banc). 2014) I find rehearing en (granting ques necessary to decide it believed given the cen untenable way of this conclusion using by it simply tion or was hand.”). majority’s lim Reynolds trality of the R.J. Nor the case at illustration Zauderer. Because reading of majority’s read ited importance was part Reyn of R.J. reading constituted dissenting on the lost ing of Zauderer “power” to overrule holding, ’s F.3d at olds Reynolds, 696 R.J. judge. See only by the (“Even properly “be exercised J., dissenting) treat could (Rogers, court, an banc through [sic] either scrutiny’ as full exacting ‘less ing Zauderer’s more informal to the serving pursuant or decision requirements to disclosure limited Diamond, 670 adopted in practice Irons preventing con governmental a (D.C.Cir.1981),” La- n. 11 findings F.2d the voluminous sumer deception, omitted). (citation Shawn, at 1395 more than ade ... are of our own courts (em interest”) its own deci nonetheless issued The panel quate substantiate overruling R.J. Reynolds’s sion added); (noting at 1227 n. 6 phasis seeking full en holding instead either recognized, circuits have other “[a]s inserting proper a Irons hearing or sim banc appears Court Zauderer the obtained, the en announcing, if inter footnote held that a ply to have endorsement court’s unanimous possible from banc consumers protecting est opinion.* support disclo- is deception sufficient (3) overruling obsolete decision an old or panel the Irons footnote forewent *That which, technically valid as although still surprising as none of procedure is not poli- rendered obso- precedent, plainly been fits. Our written justifications therefor law, subsequent legislation sets other de- accumulated case cy, our based on lete specific velopments; non-exclusive—bases out four —albeit (4) precedent overruling footnote: recent for an Irons a more which, intervening Supreme to an due (1) in the resolving apparent an conflict decision, weight combined court; or the Court panels of the prior decisions of circuits, panel authority other from prior of law rejecting a statement dictum, clearly incorrect statement which, convinced warrants although arguably confusion; current law. rejection express to avoid future sum, In I do not understand how the thought stating such an outrageous propo- panel opinion in this сase came to be. Its sition would be sufficient to But, refute it. issuance is inconsistent with our law of the astonishing may as it be to First Amend- circuit doctrine and runs counter to the scholars, ment the court today doubles “ decisis, principle of stare which ‘demands down on that extraordinary result. The that we abide a recent decision of one court holds “Zauderer reach[es] be- panel of this court panel unless the has yond problems of deception, sufficiently to withdrawn opinion or the en court banc encompass” factual and noncontroversial ” Case, has overruled it.’ In re Sealed 181 disclosure mandates aimed at providing (D.C.Cir.1999) F.3d (Henderson, more information to some consumers. J., concurring (quoting Brewster v. Com Maj. Op. result, at 20. aAs the fundamen- missioner, (D.C.Cir. 607 F.2d tal First Amendment right not to be 1979)) (quotation omitted)). marks I need coerced or compelled say what one hardly add my hope that this case is an say would not voluntarily is now demoted outlier; not, if we risk adopting the habit to mere tautology: “[B]y acting ... slapping the “dictum” any label on hold through a reasonably crafted disclosure ing any that two of us find inconvenient mandate, government meets its burden thereby replacing law of the circuit showing that the mandate advances its with law of panel. interest in making the ‘purely factual and uncontroversial information’ accessible to BROWN, Judge, Circuit dissenting: the recipients.” Maj. Op. at 26. In other Throughout argument, oral AMI’s coun- words, a business owner longer no has a repeatedly sel analytical summarized the constitutionally protected right to refrain options before the en banc court: speaking, from long as the [T]he bottom if line is Central Hudson wants to use company’s product applies, should prevail; [AMI] if Zau- convey “purely factual and uncontrover- applies only derer to deception, [AMI] sial” information. prevail; should if Zauderer applies only to consumer protection, health safe- In so finding, the court today ignores ty, and deception, prevail. [AMI] should plain words Zauderer’s text and only way The prevail [AMI does not] is disregards context; its historical both the if this Court concludes that Zauderer text and history emphasize case interest, applies no matter how government’s unique interest in preventing articulated, no matter how speculative. commercial deception. By expanding Tr. of Oral Arg. at Am. beyond Meat. Inst. v. Zauderer deception, the court has USDA, (D.C.Cir. No. 13-5281 May 19, now created a standard is actually 2014) (en banc). No doubt counsel even more relaxed than basis rational re- Policy Statement on En Banc ject,” panel Endorsement id. at acknowledged here (Jan. 17, 1996); Panel Decisions at 1 see also Reynolds’s "reasonable” to read RJ. Case, In re Sealed treatment holding of Zauderer aas AMI —see (D.C.Cir.1999) (Henderson, J., concurring). I, ("We 746 F.3d at recognize 1073 n. 1 only justification might conceivably may reasonable judges read Reynolds as hold- apply here given is the second—but the RJ. ing that apply only can where the

Reynolds majority’s repeated emphasis on government's correcting interest is in decep- limitation, deception Zauderer’s I do not see tion.”) added). (emphasis Accordingly, the qualifies how it "arguably even dictum.” appropriate step procedure under our panel was to While retains discretion to "deter- prior mine that a include an in a Irons footnote statement decision was rather overrul- dictum, requiring en banc ing to re- Reynolds outright. action RJ. I new standard

view; essentially, per- disclosures—or commercial compelled Disciplinary Office of speech restric- commercial all haps even Counsel, 105 S.Ct. U.S. review rational basis becomes tions—thus (1985), appear not ex nihi- did L.Ed.2d Instead justification. legitimate minus lo, in vacuo. analysis its be read nor can justify its government requiring whole, parts to all of the Giving attention sponte searches sua the court regulations, context, Zauder- in its historical and read legislative underlying statute’s through the rationally disput- be meaning cannot er’s justifications seeking record, desperately phrases from Only by plucking ed. rule- agency’s actual ignoring while clues and of all contextual analysis shorn relying on the Instead of record. making completely case by pretending the stands by govern- articulated precise interests of the Su- the historical evolution outside case, reclaim court tries to in this ment doctrine preme Court’s rule the rationales for the and rehabilitate con- disingenuous can the court reach its and consistently discredited agency (1) give Zauderer “does clusions: safety and domestic denied: health ap- principles its clear answer” whether review Even rational basis protectionism. serving broadly to disclosures ply more guaran- of constitutional dismissive is less beyond curing de- interests governmental tees. 21-22; Zau- Maj. ception, Op. type little indication of what “gives derer legis- on the ardent reliance The court’s suffice,” Maj. Op. at 23. might rule, justify the in lieu lative record If, quipped, a Jeremy Bentham once rulemaking text itself or the regulatory may be dismissed argument fanciful government, presented record stilts,” analysis the court’s upon “nonsense this case has a constitu- Though baffling. can best described as deliri- in this case dimension, challenges agency tional pogo um on a stick. Ordinarily, that means our rulemaking. agen- to the record as review is limited A Pitts, it, Camp v. cy presented idiosyncratic court’s erratic and 138, 142, L.Ed.2d 106 manages to of Zauderer’s text parsing (1973), considering the confined to impenetrable opac- impression create an articulat- agency as the agency’s rationale find ordinary reader would ity where the it, Chenery, ed SEC v. that the clarity. Asserting commendable (1947). But, 1575, 91 L.Ed. 1995 justified which Zauderer “language with longstanding administrative tossing aside broadly more approach sweeps far its only beginning principles is law deception,” remedying than the interest in goes the court to bust lengths to which just claims on three hinges the court speech jurispru- mainspring of commercial a sentence about scraps from Zauderer: began protection as robust dence. What differences,” a buried “material sentence has now been government coercion from footnote, “minimal.” in a and the word supermarket an eerie echo of a reduced to out of Maj. Op. plucked at 22. Each government motto: tabloid’s vacuous context. against provide, citizens to may compel explained Judge As Chief Garland will, “[i]nquir- information their whatever argument, oral during counsel minds want to know!” ing Zauderer, rely on you’re going “If Tr. of thing.” take the whole you’ve got to I dissent. Inst., Arg. at Oral Am. Meat. No. 13- vertisement. Id. at 105 S.Ct. 2265. (D.C.Cir. 2014) (en banc). May While there are “material differences” be- This is sound Since the days advice. disclosure requirements tween and out- Marshall, appellate Chief Justice John right prohibitions, compelled speech “may recognized folly have lifting courts the a be as violative of the First Amendment as general phrase or out of opin sentence an [prohibited] speech,” and the iоn applying entirely it to an different heavy faces a justify burden to involuntary See, e.g., Virginia, context. Cohens v. (being affirmation carry forced to gov- the (6 Wheat.) 264, 399, 5 L.Ed. 257 message). ernment’s Id. at 105 S.Ct. (1821). The Supreme Court af recently ‍​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌​‌‌‌‌‍2265. After reconfirming govern- that the firmed that wisdom Arkansas Game & may ment not attempt to “prescribe what — States, Fish Commission United shall be in politics, nationalism, orthodox U.S. -, 133 S.Ct. L.Ed.2d religion, or other matters of opinion or (2012),where the Court recalled Marshall’s force citizens” to conform to the state’s “sage ‘general observation that expres assumptions, id. at the sions, every opinion, are to be taken in Court then contrasted imposition the connection the case in which those orthodoxy -prohibited by First — ” used,’ expressions are id. at 520 (quoting Amendment —with Ohio’sregulation of de- (6 Cohens, Wheat.) 399). 19 U.S. at Zau ceptive commercial advertising. When the triggered by derer its is context and is purpose of compelling factual information incoherent when unmoored from the de is to deception, cure the advertiser’s “con- ception rationale. stitutionally protected is mini- Zauderer, mal.” Id. To

In avoid attorney possible confusion, an challenged succinctly Ohio’s on court lawyer restrictions advertising summarized: “[W]e after he hold that an disciplined rights was for certain advertiser’s alleged are ade- ly quately misleading protected newspaper long advertisements. disclosure requirements Specifically,- reasonably when one related to advertisement promised State’s interest in clients would owe no legal preventing deception fees in added). cases without a consumers.” recovery, Id. disciplinary (emphasis office complained ad failed to follow Crucial to the analysis Court’s was not regulations requiring just the difference between disclosure and may clients still be liable for costs un prohibition; it was also the difference be- Zauderer, successful claims. See tween advertising disclosure in and that 630-34, 105 S.Ct. 2265. outright advertisement’s prohibition, given

First, the state’s prerogative prohibit Court clarified to mislead- both ing speech. that the First commercial protects Amendment The Court com- was speech, 637-38, absolutely mercial id. at clear: “[B]eeause disclosure re- S.Ct. quirements protects and that it trench much narrowly more advertisers from compelled speech. Id. at advertiser’s interests do flat prohi- than However, speech, bitions on warnings or First disclaimers might deceptive, false, appropriately does shield required or in order fraudu- dissipate lent to proposes possibility a commercial consumer transaction. Id. deception.” (emphasis S.Ct. 2265. Id. confusion added). But, short, where that deceptive advertising In option state’s could be cured speech, require more the gov- a curative disclosure cannot be may ernment requiring choose between from right entirely disconnected pro- directly disclosure and prohibiting fraudulent, ad- hibit deceptive, or misleading Framers re- context. any historical an adver Requiring speech. to the Con- Rights Bill of adding a sisted more informa “somewhat provide tiser to the elucida- they feared because be inclined stitution otherwise might they tion overshadow rights would 2265 tion of some present,” aas in the Constitution constitutionally inherent added), thus telos (emphasis they liberty avail The Constitution whole. when permissible natural law on the premised ban that completely conceived was alternative able first Zauder does the immanence Nowhere and conceded speech. deceptive can be an adult human speaker of that law—that principle claim commercial er agent, cannot be and noncontrover free factual as a moral speak being, forced In the same first instance. At good in the reason. without information coerced sial the interests stead, emphasizes time, James Wilson’s ob- they understood the text already i.e., have natural advertisers, those who had a no one ever servation 651, 105 See, the e.g., precisely This is spoken. wrong. right to do constitutionally protected in its (noting minimal struck Supreme Court the balance any particular providing in acknowledging protection interest “not early opinions ”) advertising in factual information speech. for commercial added).1 (emphasis for- Court extended Supreme the When makes advertiser Thus, when the even to commercial protection mal constitutional cura- for a and the basis affirmative claims false' or mis- emphasized that speech, it self-evident, advertis- the is tive disclosure remained un- speech leading commercial First Amendment minimal still retains Pharmacy er Bd. Va. Statе protected. See Conversely, gov- Inc., when Council, protections. v. Citizens Consumer Va. curing deception, constitu- is not ernment 772 & n. 96 S.Ct. 425 U.S. and undi- remain robust protections tional Granting constitu- L.Ed.2d compelled information That minished. speech did to commercial protection tional is and noncontroversial factual must be -decep- of false or regulation not preclude This burden. government’s part of the the Court accordingly, advertising; tive that trans- trigger not a is characterization “re- might government that the anticipated into the packaging every seller’s forms appear in message that a commercial quire billboard. form, such additional or include such disclaimers, information, warnings, upends court now Inexplicably, being prevent decep- necessary hierarchy outlined in constitutional precise added). Sanctioning (emphasis Id. linkage tive.” by ignoring clear Zauderer exception to the was and the advertising, deception, between stringent protections deception, otherwise curing in state rather; Amendment; it was the Supreme First the core which forms that sellers acknowledgement Court’s reasoning. Court’s under our constitu- right had no products B deceive consum- regime wrongly tional Thus, made a sensible the Court ers. piece- Zauderer such By parsing opinion expression between distinction fashion, robs decision this court meal incorrect) (which if it is protected even strips it of consistency and itsof internal Foods, Inc., by their own "attorneys advertised who v. United Accord United States misleading 405, 416, potentially and made choice" Zauderer, (2001) added)). (noting, (emphasis L.Ed.2d statements for permitted Court disclosure mandates fact, expression of commercial hopes”); R.M.J., avoid false In re 455 U.S. require accuracy. which state can 102 S.Ct. 929 (“[Regulation ... permissible [is] where the particular ad- The court disregards vertising inherently likely to deceive extraordinarily juris Court’s consistent where the record indicates particu- that a area, prudence Virginia from lar form or method of advertising has in through Board the present fact been deceptive.”); Bolger day: government may regulate Youngs com Drug Corp., 60, 65, mercial Prods. avoid or con 463 U.S. misleading fusing (1983) (“In consumers. While broad bans on S.Ct. 77 L.Ed.2d 469 nonmisleading commercial speech light were greater potential for deception immеdiately suspect, the repeatedly Court or confusion in the context of certain ad- affirmed the narrow niche occupied ac vertising messages, content-based restric- tual, inherently, potentially deceptive tions on commercial speech may per- speech subject regulation. missible.”). Assocs., e.g., Linmark Inc. Willing Thus, when the Court was confronted boro Twp., time, Zauderer, for the first with the 52 L.Ed.2d 155 (remarking “laws constitutionality of a disclosure require- requiring and misleading] signs [false to ment, it and relied studied on this prior form, appear in such a or include such jurisprudence commercial speech concern- additional information necessary as is to ing deception to reach its holding. ultimate prevent being deceptive their ... would Zauderer, 651, 471 U.S. 105 S.Ct. very raise ques different constitutional (“[I]n 2265 virtually all our commercial tions” the unconstitutional on all ban date, speech to decisions we have empha- “for signs); sale” Bates v. Bar State sized requirements because disclosure Ariz., 2691, U.S. 97 433 S.Ct. 53 trench much more narrowly on an adver- (1977) (“[T]he L.Ed.2d 810 bar retains the tiser’s than do prohibitions interests flat power to correct omissions that have the speech, warnings or might disclaimers effect of presenting an pic- inaccurate appropriately be required in order to dissi- ture_”); Bates, 383-84, 433 U.S. at 97 pate the possibility of consumer confusion S.Ct. (noting 2691 certain claims “not sus- added) and deception.” (emphasis (citing ceptible of measurement or verification cases)); 646, see id. at also 105 S.Ct. 2265 may ... likely so to be misleading be as to (“Our recent decisions involving commer- restriction”); Bates, warrant 433 speech cial grounded been have in the (“We 383-84, 97 S.Ct. 2691 do not fore- faith that the free flow of commercial in- close the possibility that some sup- limited formation is enough valuable to im- justify plementation, by way of or warning dis- posing regulators on would-be the costs like, claimer the might or be required distinguishing truthful from the false, [an so as to advertisement] assure that the helpful misleading, from the misled.”); R.M.J., consumer is not In re harmless (emphasis from 191, 200-01, 929, 455 U.S. 102 harmful.” S.Ct. 71 added)). viewing Instead of Zauderer (1982) L.Ed.2d (reiterating 64 con- Bates’s context, proper its the court claims Zau- clusion warnings or disclaimers deception-specific derer ’s language is “might appropriately required ... “simply descriptive of the circumstances order to dissipate the possibility of con- which applied the Court sumer its new rule.” deception”); confusion or In re Maj. 11, Op. at But 455 U.S. at 200 n. this conclusion be- 102 S.Ct. (noting governmental 929 lied entity preceding “could Zauderer cases require explanations disclaimers or following to well as the cases it.

42 States, Milavetz, P.A. v. United issued, Gallop & there was opinion

If, when 1324, 250, 229, only applied 559 U.S. any doubt was that doubt deception, (2010) targeting (upholding mandates L.Ed.2d 79 Court’s given dissipates “reasonably related to requirement ratio singular dogged adherence preventing State’s Attorney Registra Peel v. e.g., nale. Tobacco see also Lorillard deception”)2; Ill., 496 Comm’n Disciplinary &tion 533 U.S. Reilly, v.Co. L.Ed.2d 91, 110, 110 S.Ct. (2001) J., (Thomas, 150 L.Ed.2d (“To potentially (1990) the extent in the concurring concurring part certifica of private misleading statements (“[I]t ‘appropriate is more judgment) con could confuse specialization or tion appear message that a commercial require re consider sumers, might a State form, such additional or include in such a certifying about a disclaimer quiring disclaimers, as information, warnings, and special of a the standards organization or being decep- necessary prevent Bus. & Dep’t v. Fla. ty.”); Ibanez Prof'l this rea- validity of tive.’ Whatever 146-47, 512 U.S. Regulation, peculiarly to the com- (1994) limited soning, (noting L.Ed.2d 118 S.Ct. that a different that commercial mercial harms possibility hypothetical appropriate “might ie., deceptive serve as the risk of disclaimer can threaten — or con deception against ly (citations tailored check omit- advertising.” misleading Bros. & fusion”); v. Wileman Glickman Dentistry, ted)); Fla. Bd. Borgner Inc., Elliott, 521 U.S. 154 L.Ed.2d S.Ct. (Sout L.Ed.2d 585 (2002) (Thomas, J., to deni- dissenting (“Zauderer thereby re J., dissenting) er, J.) certiorari, by Ginsburg, joined al of longstanding preference affirmed (“If confusion rath- the disclaimer creates outright over requirements it, only possible eliminating the er cures for bans, narrowly tailored as more speech this justification for constitutional to messages commercial potential the defeated.”). regulation is But however saying too little. mislead may mandates of such long pedigree the this panel court Reynolds, In R.J. government’s be, broad the and however logical con- text to followed Zauderer’s them, Zauderer car authority impose to terms, Zauderer’s “[B]y its own clusion: unrelated authority for a mandate ries no in to cases which disclo- holding is limited misleading or avoiding in interest to the ‘reasonably related requirements sure (cita messages.” incomplete commercial preventing decep- interest to the State’s omitted)); v. United United States tions ” Reynolds Tobac- R.J. tion of consumers.’ 405, 416, 121 Foods, S.Ct. Inc., 1205, 1213 co Co. v. FDA (“There is no 2334, L.Ed.2d 438 Zauderer, (D.C.Cir.2012) 471 U.S. (quoting before us that the case now suggestion in 2265). This court then at 105 S.Ct. to imposed re mandatory assessments the juris- Supreme Court on to examine went to persons pay private quire group one including following prudence Zauderer — neces by others are somehow speech for conclusion. reaffirm that Milavetz—to advertisements voluntary sary to make wrong to eon- was Milavetz, original panel AMI The consumers.”); nonmisleading for Milavetz, at Milavetz, the United States See Br. also the Court de- for Significantly, in 2. L.Ed.2d overarching 559 U.S. adopt government's the clined to 08-1225), WL (2010) (Nos.08-1119, bearing a reason- rule as description of the relationship state interest.” "valid able Reynolds, and tradiet R.J. the en banc vation of the fair-bargaining process to be today wrong court it. subjected overrule scrutiny). to strict For that rea son, the litigating position in Thus, only did the Supreme Court case, which this court adopts, has been (and recognize clarity Zauderer’s limita particularly troubling. government The tions), fact, so too did this court. In even repeatedly has' attempted to focus the government previous filings in this —in court on Appellants’ interests, instead of very recognized import the clear case— its own. 15; See Gov’t Supp’l Br. at See, e.g., Opp’n Zauderer. Defs.’ to Pis.’ 13 — Arg. Inst., Tr. of Oral Am. Meat. Inj. Mot. for Prelim. at Am. Meat Inst. (D.C.Cir. 2014) (en No. May USDA, (D.D.C.2013) F.Supp.2d banc). fact, In government (No. does not 13-CV-1033), 30, reprinted ECF No. even mention its own in burdening interest (“In in J.A. 999 order for Zauderer First rights Amendment until very last apply to a commercial regulation, page brief, then, of its and even confines regulation must be aimed at correcting one sentence that cites the misleading speech and preventing decep original AMI opinion, Panel’s instead of Milavetz, tion of (citing consumers.” 1324)). record. See Gov’t Supp’l Br. at 20. But see backwards; This is Inst., heart of the First Arg. Tr. of Oral Am. Meat. (D.C.Cir. analysis 19, 2014) (en begins gov with the No. 13-5281 May banc) (Government: justification ernment’s interfering simply not a “[I]t’s See, such a fundamental right. e.g., proper Texas reading of [Zauderer ] describe Johnson, 397, 406-07, 109 it as a case about combatting deception.”). (1989) (“It is, 105 L.Ed.2d 342 trajectory The clear short, ... governmental interest at jurisprudence Court’s greater is toward stake that helps to determine whether a protection for speech, not less. valid.”). restriction on expression ... Milavetz, e.g., 559 U.S. at goes even (Thomas, J., so far as to S.Ct. 1324 concurring part argue (“I “applicability of the Zauderer concurring judgment) would standard not depend upon does gov- willing to reexamine Zauderer and its justification ernment’s for the required dis- progeny in an appropriate case to deter- closure premised [and] [i]nstead [is] mine precedents whether these provide on” the commercial actor’s limited inter- sufficient protection First Amendment 5; ests. Supp’l Gov’t Br. at see also id. at against government-mandated disclo- — (“But 7 the government’s nature of the sures.”); Health, Inc., Sorrell v. IMS requiring reason for -, disclosure does not 2653, 2667-72, U.S. 131 S.Ct. 180 (2011) affect whether ap- the Zauderer standard L.Ed.2d 544 (striking down law bur- plies.”). argument, And at oral gov- dening speech commercial under interme- Nike, by ernment —before correction the Chief scrutiny); diate Inc. Kasky, 539 Judge essentially 654, 676, argued compelled com- U.S. 156 L.Ed.2d — (2003) mercial J., disclosures no First (Breyer, dissenting) implicate 580 (arguing Amendment heightened for interests at all. See Tr. of scrutiny apply to com- Inst., speech Arg. mercial Oral at Am. Meat. when it involves a No. 13- matter of (D.C.Cir. 2014) (en banc) concern); public Co., May 5281 Lorillard Tobacco (Thomas, (arguing analysis might 533 U.S. at if S.Ct. be different J., concurring part “the concurring actual First Amendment interest judgment) (calling might crop up content-discrimi- start to on the other side” natory regulation added)); preser- (emphasis unrelated (stating id. at 50-51 tions, here, are the burden is on the quib- in ... as we “not interested is

government have a that Appellants government whether and it is the bling” government, as to interest); Amendment see also Gov’t First interests. See Bd. must assert substantial (“[Disclosure require- Supp’l Br. at Fox, N.Y. v. Trs. State Univ. subject to First Amendment ments 106 L.Ed.2d they as threaten scrutiny only (“[T]he insofar State bears the burden protected speech.”). chill re- justifying speech] its [commercial strictions.”) of this court seemed to members dis- Curiously, Several the court troubling. Tr. of arguments See find these government agrees, salvaging interests Inst., Meat. No. Arg. at Am. Oral regulation gov- uphold disclaimed to (en banc) 2014) (D.C.Cir. May adequately justified. Com- ernment never is a First (Judge Kavanaugh: “This disclosure, court, says the can “rest pelled usually don’t start Amendment case. We to the suppositions opposed on other asking usually by start way[. that We] put forward precise interests bur- government’s what’s the Maj. Op. at 46. State.” at speech.”); or the id. dening speaker that (Judge Brown: “You don’t think A Amendment compelling speech is a First Although we have sometimes character- interest?”); (Judge Kavanaugh: id. as similar to ized the Zauderer standard they that were suggesting were “[Y]ou review, Reynolds, rational see R.J. basis was no First Amendment outside—there even the court acknowl- (Chief here.”); Judge at 51 issue at all essentially application it is edges quibbling. The Su- Garland: “[I]t’s Hudson’s, scrutiny. intermediate Central 14 in Zauderer preme Court Footnote 26-27; Maj. Kavanaugh Op. Op. First in- say ... doesn’t Amendment [the And, import if Zauderer’s is clear 33-34. implicated by require- terests alone, pellucid read when its govern- nonexistent. Is the when ments] [a]re nonexistent?”). context, they’re position analysis placed ment’s in historical Yet, remarkably, today agrees court as a even more unmistakable when seen the First with the Hudson’s in- specialized subset of Central here, longer Amendment no matters scrutiny. termediate agree compelled long as a court can Corp. & Electric Central Hudson Gas information is factual and uncontroversial. York, New Public Service Commission of 65 L.Ed.2d II (1980), the intermediate scru- clarifies protections granted clear Despite the tiny applicable to commercial standard since the court speech restrictions: as- now invents a First standard substantial; interest must be serted protection even less provides directly advance that in- regulation must say is rational review. To this result basis terest; regulation must no and the is an understatement. No one anomalous necessary more extensive than is to serve argued govern- in this case that the interest, at compel prod- ment can never sellers only speech not to applies This standard only to consumers. The give ucts to notice compelled speech; but also to restrictions is bears the burden of question here who right speak protected not to has been level of interest is justification and what commercially just protected as it has been with dealing sufficient. And when we are Inc., Foods, generally. e.g., United protec- First Amendment fundamental (protecting 533 U.S. at 121 S.Ct. 2384 actual deception in commercial advertising right against compelled speech, if even always will interest, be such a substantial speech ordinarily subject is to so Zauderer satisfiеs the first element. safeguards); Riley lesser v. Nat'l Fed’n Next, government’s when a cf. N.C., Inc., the Blind 487 U.S. mandate reasonably decep- related to its 796-97, 108 S.Ct. 101 L.Ed.2d 669 tion requires interest —as Zauderer —we (1988) (“[I]n the context of protected can be assured the disclosure will directly speech, compelled the difference [between interest; advance words, in other a compelled is without silence] reasonably related curative disclosure will constitutional significance, for the First necessarily make the deceptive advertise- guarantees ‘freedom of ment less misleading. Finally, a disclo- speech,’ necessarily a term comprising the requirement sure will be less restrictive say decision of both what to and what not ban, outright an or no more extensive Thus, say.”). general to rule is that than necessary to deception. cure the government may compel speech not with government’s When the interest is not in satisfying out at least a substantial burden: curing deceptive however, advertising, scrutiny. intermediate Riley, 487 U.S. Zauderer does not apply. The commercial 108 S.Ct. 2667. And when the speech “may be only restricted in the ser- government attempts to compel individuals vice of a substantial ... interest” articulat- express viewpoint, govern certain government, ed “only through subject ment’s action is higher even directly means that advance that interest.” burden: scrutiny. strict See Wooley v. Zauderer, 471 U.S. at 105 S.Ct. 2265 Maynard, 705, 714-15, 430 U.S. 97 S.Ct. Hudson, (citing Central (1977); 51 L.Ed.2d 752 see also Pac. 2343); R.M.J., see In re also Gas & Elec. v.Co. Pub. Utils. Comm’n of U.S. at (noting S.Ct. 929 when a Cal., 1, 12-15, statement is not misleading any way— (1986); Zauderer, L.Ed.2d real, inherent, or potential Court 650, 105 S.Ct. 2265. —the mandates that the authority state’s be sub- narrowly Zauderer’s exception crafted ject serving interest,” a “substantial in- to this rule does not offer a dispensation terfering speech only proportion from Central Hudson’s intermediate scru served, being narrowly tiny. Rather un burden drawn). Central ‍​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌​‌‌‌‌‍Hudson —without der scrutiny effectively intermediate met applies to disclosures that tar- shortcuts — government when the purely commands get interests other than deception. factual and noncontroversial disclosures to prevent deceptive advertising.3 See Zau eviscerating Unsatisfied with Zauder derer, 471 U.S. at 105 S.Ct. 2265. limits, protective er ’s proceeds the court is, essence, shortcut, “where lay groundwork to disembowel Cen several of Central Hudson’s elements See, Maj. tral Hudson as well. e.g., Op. at already havе been established.” AMI (“Zauderer’s method of evaluating Supp’l Br. at 9. fit in wording differs [from Central Hud son], Hudson, though perhaps significantly To illustrate: Under Central ”). By must first assert a substance.... holding sub- the amor stantial interest. Preventing inherent or phous today’s interests in case to be “sub- Zauderer, compelled 3. When scrutiny applies. disclosures do not contain strict 471 U.S. at 651, 2265; "purely factual and uncontroversial informa- accord Pac. Gas & Elec. Co., 12-15, deception tion'' advertising, correct 475 U.S. at 106 S.Ct. 903. 46 sequitur of a non at 25. This is more (and any Op. whether questioning

stantial” litigants The have explanation.4 fail to be sub- could governmental The applied. usual rules assumed the already found to be stantial, those except invoking ex- 22-23), changed game, court court has at trivial, Maj. Op. see panel no role in the played which ceptions effectively absolves exceptions court’s But here the not “trivial” decision. that is Any interest burden. First, rules. the wisdom of the only prove will do. a course of itself mandates that the statute B often the no moment. This is action is of “consider declines to Although Reynolds, the court 696 F.3d at e.g., R.J. case. reviewed under Moreover, a mandate Chenery applies what extent 1208-09. suppositions other N. interpretation. can rest on statutory force to equal for- put Serv., interests precise to the 674 F.3d v. Postal opposed Cargo Air 25, State,” Maj. Op. (D.C.Cir.2012). Second, at by 852, ward the “stat- agency on interests exception relies assumes the utorily compelled” nonetheless were ratio- and even denied premised asserted if on a agency never decision—even rule. This takes the evil for the be ground nales or debatable erroneous —would to a whole new rationalization post formality” hoc unchanged by the “useless forgets that it is And the court Friendly, Chenery level. Henry court review. J. administrative propriety of assessing the on Reversal Revisited: Reflections action, Orders, court is limited to reviewing awhen 2 Duke Remand Administrative judge (1969). record and must the administrative agency’s But L.J. by by grounds invoked “solely compelled the rule specific implementation is not 196, 67 Chenery, Indeed, U.S. at agency.” agen- this is the by the statute. 1575; try. see also Motor Vehicle cy’s S.Ct. second Mfrs. U.S., Mut. Inc. v. State Farm

Ass’n of Likewise, rely if means to the court Co., Ins. 463 U.S. Auto. of the consti- background presumption (1983) (“It is well- L.Ed.2d 443 legislation, tutionality Congressional action аgency’s that an must established consistent with ration- presumption all, on the basis articulated if at upheld, review, Morgan, al Katzenbach v. basis itself.”). grounds If the by agency 641, 653, 86 S.Ct. 384 U.S. inadequate “are or agency asserted (1966), clearly improper L.Ed.2d 828 but to affirm powerless the court is improper, scrutiny is heightened where constitutional by substituting action the administrative demanded, see, Sys., Turner Broad. e.g., adequate to be a more it considers what FCC, 622, 664-67, 114 Inc. Chenery, 332 U.S. proper basis.” S.Ct. 129 L.Ed.2d violates this bed- 1575. The court S.Ct. scrutiny requires considerable Heightened today. law principle rock of administrative Congressional findings to es- specific in- asserted makes no claim tablish that court “AMI asserts substantial. See id. of its discretion terest agency’s that the exercises Thus, accepting the Maj. even moment....” are of constitutional of the COOL stat Complaint, Am. district court as violation First Amended 4. See AMI’s USDA, (D.D.C. Amendment.”); F.Supp.2d 38 Maj Op. Meat Inst. ute and the First 13-CV-1033), 2013) (No. reprint ECF No. ("AMI violates its argues that the 2013 rule 72-79; ¶¶ Am. Meat Inst. v. ed in J.A. right to freedom of First Amendment USDA, (D.C.Cir. speech....”). 2014) ("[AMI] challenged the 2013 rule assertion that it Supp’l court’s doubtful can com Br. at 20 (referring to “the benefit pletely in ignore rulemaking allowing record to country customers know the case, government’s this burden could of origin of government their food” as the by “hypothesized justifi never be met interest); Mandatory Country Origin cations” based on a few scattered com (Jan. Labeling, 2658, 74 Fed.Reg. 15, 2009) legislative Thomp ments record. [hereinafter “2009 “in- (noting Rule”] Ctr., 357, son v. States Med. W. terest some consumers in country 1497, 122 S.Ct. 152 L.Ed.2d 563 origin added)). of food” (emphasis Yet (2002); see also Kimel v. Fla. Re Bd. government has never explained pre- gents, 145 cisely why origin information assists with (2000) (noting gov L.Ed.2d 522 that the preferences, customer only suggesting heightened ernment’s burden under scruti production “the steps in country each may ny is not met legislative where the record (hidden embody unobservable) latent or entirely consists “almost of isolated sen attributes, may important which to in- clipped tences from floor leg debates and dividual Mandatory consumers.” Country reports”). islative Origin Labeling, 31,367, 78 Fed.Reg. 31,377 2013) (May event, [hereinafter In “2013 presence the mere of sub- added). (emphasis Rule”] govern- The Congressional stantial findings is alone not ment never suggests, explains, or supports sufficient. The Central Hudson test re- might what those attributes More im- quires Government be. only “the not identi- portantly, never fy specifically explains a substantial interest to be why coerced speech only is the solution. prove achieved ... but also to regulation directly advances that interest The agency’s ambiguous stated and is not more extensive than is neces- amorphous in giving interest consumers sary to that interest.” Thompson, serve more undoubtedly information is insuffi U.S. at S.Ct. 1497. The “con- cient to even under an expanded- survive gruence proportionality” an- test regime. Zauderer Dairy See Int’l Foods nounced applied in Central Hudson —and (2d Amestoy, Ass’n v. 92 F.3d Cir. heightened scrutiny other not cases—is 1996) (holding curiosity “consumer alone is legislative satisfied where offers record not a strong enough state interest to sus only support” “scant for Congress’s conclu- tain accurate, compulsion even sions. Fla. Prepaid Postsecondary factual statement ... in a commercial con Bank, Educ. Expense Bd. v. Coll. Sav. 527 text”); Nat'l Elec. accord Ass’n v. Mfrs. 627, 645-47, 144 Sorrell, (2d 115 n. 6 Cir. L.Ed.2d 575 2001); (con Kavanaugh see atOp. also ceding plainly “it is enough for the government’s only asserted interest say Government simply throughout the rule this litigation— substantial giving after consumers abandoning its half-hearted post hoc information”). By applying deception rationale —has been a consis- case, tently vague one: court invents new standard “The in- that, in practice, terest providing even more relaxed than consumers with in- Now, rational basis formation those consumers review. can use to subject make they choices about the food that mandates are only will purchase rational any legitimate serve their basis review minus families eat justification. themselves.” Tr. of Oral Arg. See Tr. of Oral Arg. Inst., (D.C.Cir. (D.C.Cir. Am. Inst., Meat. No. 13-5281 Am. Meat. No. 13-5281 2014) (en banc); May (en banc) (“[I]f 19, 2014) see May you also Gov’t accept Term, here, Supreme Court rational ruling this is panel’s 68 Iowa L.Rev. the history is you talking (“[Cjiting legislative are minus, and when (1983) basis you have compelled, speech a crowd and looking ... akin to over about where still other that friends.”). standard some apply to your picking out air.”). in the Un- interest any there be messy amalgam jumble, is a The result ipsa the res daunted, borrows the court standards, history, and ad- legislative tort law to conclude doctrine from loquitur The court is so procedure. ministrative tendency of a disclosure the “self-evident it this rule upholding to that committed recipients get the to assure mandate govern- оf the aspects “several concludes information,” Maj. Op. at mandated country-of-origin label- ment’s interest “burden the satisfies to make the interest ing for food combine ad- [compelled disclosure] showing long history the context and substantial: making the ... infor- interest in vances its to enable disclosures country-of-origin Maj. recipients,” the accessible to mation prod- choose American-made consumers to this, logic like With Op. Seriously? at 26. ucts; consumer the demonstrated Ministry of Truth?5 Howev- who needs country-of-origin labeling extending er, airy circumlocutions fog should products; the individual health food elusive, govern- the frustratingly prove too can impacts that concerns and market its actions at all. As justify ment need in the event of a food-borne illness arise noted, willing change the court is the inspection, selectively rely Maj. Op. on the at 23. On may it outbreak.” rules so statute, underlying legislative “aspects,” upon record of these which each rulemaking agency disregarding leans, while heavily so is foreclosed court court in this For the challenged case. concession, and the history, governmental history rely legislative on in- sponte sua record. text or the regulatory stead of either poles i record reverses the

rulemaking Arg. law. See Tr. of Oral administrative assertions, Contrary to the court’s (D.C.Cir. Inst., No. 13-5281 Am. Meat. country-of-origin labeling “long history” of banc) (“The 2014) (en two inter- May support government’s interest cannot panel identified both in- ests that the “histori- The court claims rule’s here. expressly terests that above ‘idle cal lifts well pedigree a remarkable It would be disclaimed. ” However, in curiosity.’ Maj. Op. at 23. apply Zauderer in this Court thing for context, which has the First Amendment given govern- circumstances those 1800s, steadily evolving since the late been disclaiming of those expressed in- ment’s 23-24; Maj. history “telling,” Op. is not Kozinski, terests.”); Alex see also Should rather, especially poor it is an substitute History Be an Legislative Im- Reading judgment. for reasoned U.L.Rev. Offense?, 31 Suffouk peachable accept reluctance to general Court’s among (noting, other time country-of- claims at the speech free history “is legislative often things, certainly labeling began bears origin a chance contradictory, giving courts Rabbant, The See David M. issue. support choose bits which pick and those Years, Forgotten Its First Amendmеnt reach”); want to judges Pa- result (1981) (“The over- Yale L.J. Wald, Observations on the tricia M. Some whelming majority prewar decisions History in the 1981 Legislative Use of George Eighty-Four Orwell, Nineteen rejected jurisdictions speech labels, all free emblem on the litigants and the existence.”). claims, by ignoring often their “ignored potential Court free Rabbant, 531; claims.” supra at see Hal- speech” Modern “commercial doctrine ter, 419; 205 U.S. at Kozinski 1970s, until begin did not when the (“No Banner, & supra speech-relat- at 763 formally Supreme Court extended First Halter, ed claim was made in probably ... protection Amendment to commercial because litigants didn’t conceive of bot- speech. Bd. Pharmacy, See Va. State Rather, 762, tle-labeling speech.”). as at 96 1817. U.S. S.Ct. That “Con- de- gress imposing has been fendants [country-of-ori- attacked the statute repugnant 1890,” 23, gin] Maj. mandates since Op. Equal at to the Protection and Due Process eighty-six years before commercial speech Clauses, challenges rejected by the Court. explicit protection, received thus tells us Halter, 39, at 419; U.S. 27 S.Ct. very practice’s little about the constitution- Rabbant, see also supra at n. 69. When ality. The terminology Court’s these repeatedly Court referred to “mere early years something was of a self-fulfill- advertisement,” Halter, 41, 45, U.S. ing prophecy; what we now call “commer- 419, 27 S.Ct. did so in it the context of speech,” cial simply court referred to analyzing substantive process and due advertising” as “commercial or some other property rights, speech. not See, activity. e.g., business Valentine v. When at last the Supreme Court formal- Chrestensen, 316 U.S. 62 S.Ct. ly addressed the protection of “advertis- (1942) 86 L.Ed. 1262 (denying protection term), ing” (again, noted, without “purely commercial advertising”); Hal- citation, it was “clear that the Constitution Nebraska, 34, 41, 45, ter v. 205 U.S. imposes no such restraint on S.Ct. 51 L.Ed. 696 (referring to respects purely commercial advertis- advertisement”); “mere see also Alex Ko- Chrestensen, ing.” U.S. 62 S.Ct. Banner, zinski & Stuart Response, The 920. suggests “[T]his Anti-History Pre-History Com- Justices question considered the whether Speech, mercial 71 Tex. L.Rev. the First Amendment any application (1993) (“But before no judge thought advertising ... easily resolved and thing speech they as commercial — very important.” Banner, not & Kozinski ..., ‘advertising’ ‘soliciting called it supra at 758. One reason for this certain- canvassing,’ or some suсh term that denot- ty may again concept have been the activity ed a business rather than a form advertising activity— was more a business expression.”). linguistic This choice not subject to the “then-recently-adopted def- only reflected the court’s underlying erential economic due process substantive thoughts assumptions (i.e., that adver- jurisprudence” speech. See id. —than tising permissibly was regulated as busi- Again, giv.enboth pre- Christensen and the conduct) ness likely but also influenced the vailing advertising view that was conduct litigating positions of parties. Litigants and not speech, early the court’s citation to rarely raised First challenges labeling regimes nothing tells us useful. advertising restrictions —instead mak- ing substantive due process arguments by Additionally, early years of free asserting restrictions affected their busi- speech jurisprudence routinely laws saw rights. ness upheld by today’s clearly standards example, speech.

For interfere with commercial when faced with validity the constitutional e.g., parte Rapier, of a state Ex law criminalizing (1892); the use of flag an American parte 36 L.Ed. 93 Ex “identify need to emphasized the 727, 24 Court

Jackson, L.Ed. 877 1800s, the State itself care the interests of the late cases postal In the rational-basis right “[u]nlike and noted focused on asserts” Court Supreme review, does matters Hudson standard injurious the Central exclude Congress to mail, precise adver- inter- including permit supplant materials not us from the The mail- with other put and other vices. forward State ests tising lotteries (since long history 1792. Id. at suppositions.” ing prohibition’s 1866!) affirming decisions does exactly the Court’s what the court But that —and from Court stop it—did here. under the new rejecting

later laws ii See, e.g., speech doctrine. Bolger, protectionism or The court concludes chal- the true motive of the patriotism is Furthermore, court’s reliance on scheme, labeling eountry-of-origin lenged Freeman, 191, 112 Burson slya only acknowledged with if it is even (1992), sup- to 119 L.Ed.2d 5 Kavanaugh government. wink See inapposite. history rationale is port its (“[T]he Branch has at Executive 211, Op. 32 case,” First, a “rare id. at Burson was ex- during litigation this from refrained a reconcilia- that involved in articulating sup- interest pressly its fundamental competing two tion ranchers in porting in American farmers and engage political dis- right rights —the law, vote, justify apparently this be- right “a at the order right and the course democracy,” repercussiоns 112 of the international our cause heart of ensue.”). history The court assumes— might But Burson relied S.Ct. 1846. re- con- necessity correctly absent only perhaps to “demonstrate —that treaties, polling Congress in and around areas of various trade stricted straints And, 200, 112 S.Ct. 1846. in places.” promoting Id. an interest would have Zauderer, approves Burson a limited Maj. Op. like at 23 products. American activity prevent protected intrusion on origin labeling consum- (noting “enable[s] 199, 112 S.Ct. 1846. Voter fraud. Id. at products”); American-made ers to choose fraud were his- and election intimidation Op. (asserting gov- at 33 Kavanaugh restrictions torically rampant, but in this ernment “has a substantial interest Id. at problems. had ameliorated these in American farmers and supporting case contrast, In 112 S.Ct. 1846. foreign competi- against ranchers their long history country- court invokes the tors”). But, that interest would constitute argue the neces- of-origin labeling laws justification coercing for a substantial intrusion is self- sity government’s actually speech only if the had simply does not stand for evident. Burson it, voluntary if action and asserted that a time-tested consen- proposition obviously government speech were direct substantiality for the proxy sus can be ig- the court inadequate. Significantly, in the First in agency’s disclaimers this case. nores the true, context. If that were agency failed to raise or only Not has the speech doctrine would nev- the commercial motive, has, it support any protectionist developed at all. er have See, fact, e.g., consistently denied one. (“The 31,376 Rule, Fed.Reg. at Fane, Similarly, Edenfield [country-of-origin labeling] availability of 123 L.Ed.2d 543 not that there will (1993), imply information does this court’s actions and contradicts aggregate necessarily any change Edenfield, analysis. In or in demand prod- giene.”) Again, consumer demand for only govern- has the others.”); origin ucts of one versus 2009 ment failed to support any raise or motive (“[W]hile Rule, Fed.Reg. at 2670 some in consumer safety, has, health and producers may hope to receive bene- fact, consistently eschewed that interest as fits from the [country-of-origin labeling] supporting the rule. e.g., Mandatory program products origin, for of U.S. the Country Origin Labeling, 78 Fed.Reg. purpose program of the ... provide is to 31,367, 2013) 31,372 (May (noting the (em- origin consumers with information.” country-of-origin labeling program “is not added)); phasis Mandatory Country of Or- related”); safety Rule, food 74 Fed. 61,944, 61,955 igin Labeling, Fed.Reg. (“[T]he Reg. at 2679 [country-of-origin la- (Oct. 2003) Proposed [hereinafter “2003 beling] program is neither a food safety (“We find little support Rule”] evidence to traceability program, [n]or but rather a prefer- notion consumers’ stated consumer information program. Food country ences for of origin labeling will products, imported domestic, both lead to increased demands for covered must meet the safety food standards bearing commodities the U.S.-origin la- FDA and agencies]. [other safety Food (“The bel.”); 61,956 Fed.Reg. lack of traceability are not the stated intent of participation government-provided pro- rule-”); (re- Fed.Reg. at 2683 grams labeling products origin of U.S. jecting suggestions commenters’ that coun- provides evidence that consumers do not try-of-origin labeling provide would “food have a strong preference country for safety benefits to consumers” because the origin 61,956 labeling.”); Fed.Reg. at program “does not safety address food (“The results from ... surveys indicate issues”); Rule, 2003 Proposed 68 Fed.Reg. that the number of consumers with strong 61,956 at (noting although that some evi- preferences U.S.-origin for prod- labeled suggests dence “consumers may use coun- ucts is not sufficient for producers U.S. try origin labeling proxy as a for food labeling.”); benefit from accord Tr. of Oral safety information,” country original la- Inst., Arg. at Am. Meat. No. 13-5281 beling (D.C.Cir. (en provide “does not 19, 2014) banc) valid information May (explain- regarding food ing government safety”). This asserting is not undercuts inter- ranchers). helping est in American the court’s claim that “it seems reasonable Congress anticipate many that con- iii prefer sumers will food that had been con- The court government credits the with tinuously particular government’s under a acting sub silentio on the belief that food direct scrutiny.” Maj. Op. at 24. products produced wholly in the USA are Even the legislative anecdotes in the produced safer than partly those even out- not, contends, record do as the court (assert- Maj. side the USA. Op. See at 23 “broadly suggest[ utility of [country- ]

ing interest in “individual health concerns of-origin] disclosures in the event of and market impacts that can arise in the disease outbreak known to have a specific outbreak”); event of a food-borne illness country of origin, foreign or domestiс.” id. at 24 (“Supporting members of Con- Maj. Op. Rather, at 24. Agency also gress identified the purpose statute’s very discredited this purpose: “Appropri- enabling customers to make informed preventative ate measures and effective choices based on characteristics of the products they mechanisms to recall purchase, products wish to the event including supervision United States of the entire contamination incidents are the means production process hy- for health and protect used to the health of the consum- Food & Br. of Amici Curiae Rule, ing]”); Supp’l FecLReg.

ing public_” (rejecting Watch, al., eommen- 2683; (describing at 2679 at iv amici et see Water origin labeling that the suggestions in, ters’ [having] and “intimately involved to out- respond “critical program is on, advocat- resources spent considerable illness”); also see of food borne breaks development [coun- for ... ing (“[T]he Government Kavanaugh Op. at 31 rule at issue in this try-of-origin labeling] ... ... traditional health advance a cannot case”); see, Br. of Amicus Curiae e.g., in this case because safety (“[P]arts Government of Canada requirement eountry-of-origin industry produce that both of the U.S. inter- not serve obviously [that] does meat face” U.S.-origin mixed-origin and a health and court invokes est[ slaughterhouses higher much costs govern- safety interest —even over livestock—a cost dif- rely on domestic objections adamant ment’s —because concluded has a “detri- ferential the WTO usually as a safety qualify health and will competitive impact [on the] mental forgets But court interest. substantial in the position hogs of Canadian cattle and be one interest must least explained market could not be [that] certain- asserted —and consumers). Even by the need to” inform rejected by it. ly not one congressional to the the court’s citation Ill Maj. point. this record underscores really country-of- not about This case is rep- from Op. (citing at 24 statements not origin labeling. patri- It is even about states, hailing resentatives from Western certainly And it is protectionism. otism or Wu) (Hooley including Oregon safety. ap- health What about (Bono)). disproportion- California Such briefing and the parent from the record sharp conflict with ate burden “stands seeking competi- about that this is a case the First Amendment’s command only look at the advantage. tive One need governmеnt regulation must be rule recognize amici to parties and mínimums, not máximums.” measured farmers group of American benefits one Riley, 487 U.S. at interfering with the producers, while of other American practices profits today the victors will be the Of course rely imported on meat to businesses who tomorrow, victims because the standard See, Interve- e.g., serve their customers. virtually by created this case will ensure (noting Br. at i the United States nors re- producers supporting labeling this “present[s] Association ef- Cattlemen’s objec- gime day will one be saddled with industry for the U.S. cattle fective voice requirements (perhaps tionable disclosure ranching in the promot[es] United practices; how their to disclose cattle feed (“[United States”); States Cattle- id. raised; cattle are whether their cattle promote works to Association] men’s what; medically treated and with were in the interests of cattlemen United States production; of beef environmental effects Country Origin on issues such as the wage or even the union status or levels program”); (explaining id. Labeling ... Only imagi- the fertile employees). their Farmers Union is a “national the National limit disclo- nations of activists will what organization representing the interests vegetarian, efforts from sures successful farmers and ranchers across United environmental, rights, animal consumer by advocating policy posi- ... States as-yet-unknown lob- protection, or other by tions its members developed may compel. bies [country-of-origin issues such as label- patriotism protectionism If or would sell entirely GMA’s members are out of pro- products, producers and sellers would portion to the goal ethereal of affording happily festoon their products with Made ”); consumers more information.... see id. in the USA or Product of the USA labels. (“If 11-12 the COOL requirements are Thus, any buy consumer’s to desire Ameri- sustained, that sort of supply-chain man- easily can could be by voluntary satisfied agement will extremely or, become costly Rule, action. e.g., 74 Fed.Reg. for manufacturers, some prohibi- ‍​‌‌‌‌​‌‌‌‌‌‌‌‌​‌‌​‌‌​‌‌‌‌​​‌​‌‌​​​​‌‌‌​‌‌‌‌​‌‌‌‌‍cost today at 2682. Yet this court offers to ”). .... tive Forcing packers pay meat facilitate blatant rent-seeking behavior premium for domestic beef will raise costs announcing its willingness to intuit for consumers. Query protec- whether the government’s unspoken agendas perhaps — tions of the First Amеndment should be one of the most dissembling things about abrogated for some businesses in order to But, opinion. the court’s as bad as it is for benefit other That approach businesses. the court to invent govern- rationales the only important swallows First Amend- offer, ment does not actually reality is protections, ment it does so in order to worse. particular discriminate favor seg- By substantiating government’s neb- particular ments of industries. The first interests, ulous essentially per- court Amendment ought not construed to al- mits government to commandeer the low the compel speech speech of others. There is no limiting speculative the service of hypothetical principle for such a flimsy interest as the purely interests for private benefits. Once government asserted in this case. See Tr. we articulate such a principle of constitu- Inst., of Oral Arg. at Am. Meat. No. adjudication, tional really there is no limit (D.C.Cir. 2014) (en banc) May what government may compel. And if (“There absolutely is stopping no point to example cronyism okay, who will [the ar- consumer-interest] at any balk other or ideological economic gument.”); (Judge Kavanaugh: “The only discrimination? The limit the court government wants stopping point no recognize during seemed the oral argu- that argument.”). alarmingly, More such ment was labels that overtly promote in- self-referential can be interests marshalled discrimination,6 protectionism, vidious but in aid crony sort of capitalism or patriotism, and environmentalism will be ideological arm-twisting. This labeling entirely permissible subjects compelled only scheme example. one labeling, especially where the motive can The scheme is not designed to inform unspoken. remain A swath of generous consumers; designed it is away to take protection the First Amendment once af- price advantage enjoyed by segment one against forded to businesses such en- a industry. domestic The has croachment now been ceded to the alleged interest in providing information government’s allegedly good intentions. that may some consumers desire will actu- ally result in higher prices. e.g., Br. IV Grocery Amicus Curiae Manufacturers (“The Association at 11 severe that The court has taken a costs rationale devel- requirements COOL impose will oped specific a applicable context and Inst., Arg. 6. Seе Tr. of Oral Am. Meat. Constitution to discriminate on the basis of (D.C.Cir. 19, 2014) (en May No. 13-5281 origin among people already national in the banc) (Chief Judge making gov- Garland States”). United point ernment’s [is] a "it violation of the eye lie activity— controversial will government subset a narrow entirely could be beholder. regulating new, broad fashioned prohibited —and argu- the en banc began counsel AMI’s naked power which government area of absurdity no sensible by positing an ment by the First prohibited once compulsion, Zauderer could countenance—that court any credi- Amendment, requires longer no to com- permits somehow accomplishes court justification. ble interest, “any no mat- speech based on pel by plucking the extraordinary feat articulated, specu- no matter how ter how out of uncontroversial” “factual and phrase Today, the court’s commitment lative.” ig- analysis pointedly while it to will- country-of-origin labeling leads the com- noring another limitation: holding and fully distort the fundamental justified and not must be pelled virtually and a un- limitations of Zauderer a move which This is unduly burdensome. precedent to line of Court broken right of a the whole idea tends to dissolve Procruste- exactly perniciously do that —a strongly reminiscent of speak. It is not First Amend- that hacks the an solution reject who Lewis’s criticism of those C.S. government’s hip fit in the ment down to morality: traditional natural law and carnage. join I not pocket. will be, been, and never will There never of value in radically [judgment] new purport the world. What history (as they call systems or now to be new

them) frag- ‘ideologies,’ all consist of itself, from the arbi- [natural law]

ments

trarily from their context wrenched to madness

the whole and then swollen in their isolation.... HATIM, Mohammed Saeed Saleh of MaN 43M4 Lewis, The C.S. Abolition Detainee, Delta, al., Camp et 2001) That is what (Harper Collins Appellees was the court now announces. What in the well-ordered merely an observation

framework of Zauderer now becomes al., OBAMA, Appellants. Barack et that subsumes the overarching principle 13-5220, Nos. 13-5221. to facil- First Amendment. And does so of ortho- imposition itate coercion and the Appeals, United States Court doxy. What is more uncontroversial District of Columbia Circuit. orthodoxy? right speak There can be no when 2013. Argued Dec. government may compel its citizens Aug. Decided it deems mouthpieces act as for whatever and the de- factual and non-controversial is not is

termination of what is what subjective ad hoc whims of

left to the In a judges. bureaucrats of truth and

world in which the existence denied, and un-

objective reality daily indisput- are deemed hypotheses

verifiable

able, may more what is claimed as fact owe science,

to faith than and what is or is

Case Details

Case Name: American Meat Institute v. United States Department of Agriculture

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 29, 2014

Citation: 760 F.3d 18

Docket Number: 13-5281

Court Abbreviation: D.C. Cir.