Reproduced with permission from The United States Law Week, 82 U.S.L.W. 1479 (Apr. 8, 2014).
Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
The U.S. Court of Appeals for the D.C. Circuit April 4 agreed to rehear en banc a March 28 panel ruling that a group of meat industry representatives was unlikely to succeed in their challenge to a rule revising meat labeling requirements and therefore were not entitled to a preliminary injunction against its implementation (Am. Meat Inst. v. USDA, D.C. Cir., No. 13-5281, 4/4/14; Am. Meat Inst. v. USDA, 2014 BL 86913, D.C. Cir., No. 13-5281, 3/28/14).
The vacated opinion extended the holding from Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), which holds that regulations requiring factual, noncontroversial commercial speech need only be reasonably related to a state interest, to situations where curing consumer deception is not the state interest.
The meat industry representatives had argued before the panel that the higher standard announced in Cent. Hudson Gas & Elec. v. PSC of New York, 447 U.S. 56 (1980), should apply.
Both sides expressed confidence that they would be successful under either standard on rehearing.
Mark Dopp, senior vice president for regulatory affairs and general counsel of the American Meat Institute, said that it was difficult to discern the government interest in requiring labeling that he asserted was both costly and not demanded by consumers.
Jonathan Lovvorn, general counsel of the Humane Society of the United States and professor of animal law at Georgetown University Law Center, Washington, said…MORE