Wyoming Food Safety Rule on Imported Meat Labeling

Ms. Diane Walker Tompkins
Wyoming Department of Agriculture
2219 Carey Avenue
Cheyenne, Wyoming 82002

Re:     Wyoming Food Safety Rule on Imported Meat Labeling

Dear Ms. Tompkins:

     The Food Marketing Institute (FMI) is pleased to respond to the Wyoming Department of Agriculture's June 26, 2000 notice of intent to replace the former Food Service Rule with the new Wyoming Food Safety Rule. Of particular interest to FMI and its members is the provision that would require retailers and wholesalers of any meat that is “the product of any country foreign to the United States” to label the meat “imported” and state the meat’s country of origin.¹ As discussed more fully below, FMI objects to the proposed regulation on the grounds that, among other things, it is an unconstitutional exercise of power in violation of several provisions of the United States Constitution, including the Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; the Free Speech Clause of the First Amendment; and the Due Process Clause of the Fourteenth Amendment.

     Accordingly, we respectfully request that the Wyoming Department of Agriculture withdraw the imported meat labeling provision of the Wyoming Food Safety Rule. If the agency decides to proceed in this matter, we hereby request that the agency state its reasons for overruling the grounds urged against adoption.²

     FMI is a non-profit association that conducts programs in research, education, industry relations and public affairs on behalf of its 1,500 members and their subsidiaries. Our membership includes food retailers and wholesalers, as well as their customers, in the United States and around the world. FMI’s domestic member companies operate approximately 21,000 retail food stores with a combined annual sales volume of $300 billion, which accounts for more than half of all grocery sales in the United States. FMI’s retail membership is composed of large multi-store chains, small regional firms, and independent supermarkets. Our international membership includes 200 members from 60 countries. FMI members operate more than 180 retail food stores in the state of Wyoming.

I.     Wyoming Imported Meat Labeling Regulation

     As a result of recent amendments to the Wyoming Food, Drug, and Cosmetic Safety Act, Wyoming law now requires country of origin labeling on imported meat products. The law specifically provides as follows:

Every retailer and every wholesaler who sells or offers for sale in this state through an establishment or otherwise any meat, which is the product of any country foreign to the United States, shall clearly label the meat as “imported,” naming the country of its origin.³

“Meat” is defined as “the edible part of the muscle of animals,” but specifically excludes any edible part of the muscle that has been “manufactured, cured, smoked, cooked or processed.”⁴

     The statute further requires the Wyoming Department of Agriculture to promulgate rules and regulations with respect to imported meat labeling.⁵   Toward this end, on June 26, 2000, the Wyoming Department of Agriculture issued a “Notice of Intent To Adopt Rules and Regulations” and published an amended Wyoming Food Safety Rule that was subject to public comment.

     The imported meat labeling provision of the revised Wyoming Food Safety Rule adopts the statutory provision.⁶   In addition, the regulations specify that meat offered for retail sale “must have a label attached indicating ‘Imported’ and stating the country of origin.”⁷   The regulation further specifies the size, color and location of the label.⁸   Ground or comminuted meat products are specifically exempted from the regulatory imported meat labeling requirements.⁹

II.     Imported Meat Labeling Regulation Violates Commerce Clause of U.S. Constitution

     Article I, Section 8 of the U.S. Constitution enumerates the powers expressly delegated to Congress. The Commerce Clause of this section provides that “the Congress shall have Power . . . [t]o regulate Commerce . . . among the several States.”¹⁰   In addition to the direct grant of authority to Congress, the provision has been interpreted to limit the power of the states to discriminate against interstate commerce.¹¹ Thus, under the so-called “dormant Commerce Clause,” states are prohibited from imposing regulatory measures that are designed to benefit in-state economic interests by burdening out-of-state competitors.¹²

     A state law that protects the health, safety or welfare of its citizens and indirectly burdens interstate commerce will be evaluated under a two-part test to determine whether the measure passes constitutional muster. Specifically, the state must have a legitimate interest in enacting the legislation and, if so, the burden imposed on interstate commerce must not clearly exceed the putative local benefits.¹³   Wyoming’s regulation on imported meat labeling and the underlying statute violate the Commerce Clause because the statute and regulation are motivated solely by economic protectionism and they place a significant burden on interstate commerce.

A.     Wyoming Has Offered No Legitimate Interest for Enacting Imported Meat Labeling Requirements

     As noted above, to demonstrate that a state restriction that affects interstate commerce does not violate the Commerce Clause, the state is required to prove in the first instance that it has a legitimate interest in enacting the restriction. For example, a state generally has the authority to implement legislation to protect the health, safety or welfare of its citizens.

     In this case, minimal official legislative history is available to inform the public of the rationale underlying the restrictions. No transcripts of committee hearings, minutes, committee reports or other documentation has been adduced. We understand that some anecdotes alleging that imported meat is unsafe were offered during meetings of the state’s legislative committee on agriculture held early in 1998. Moreover, Wyoming Governor Jim Geringer made the following statement regarding the importance of the bill, despite his decision not to sign it “because of the Commerce Clause uncertainty:”

The clear message in the passage of this bill is our considerable concern for the agricultural community of this state due to the impact that imports are having on the domestic meat market. . . . We do support free trade, but it must also be fair trade. We will not sacrifice our domestic ranchers and farmers to imports.¹⁴

None of the foregoing, however, is sufficient to justify the conclusion that Wyoming has a legitimate interest in the imported meat labeling requirement.

     First, the Governor’s statement strongly suggests that the legislation and, therefore, the corresponding regulation, are motivated by a desire to protect Wyoming meat producers from international competition. However, the courts have clearly and repeatedly concluded that economic protectionism is not a legitimate basis for burdening interstate commerce.¹⁵

     Second, if the Wyoming authorities were truly concerned about the safety of imported meat, steps should have been taken to alert consumers about the specific food safety concern, not simply to tell consumers that the food was imported and its origin. Such steps should have been applied evenhandedly – to both foreign and domestic meat products – that carried the same alleged “risks.”¹⁶   Moreover, several imported meat products are exempted from the labeling regulation, including ground or comminuted meat products and those meat products that are “manufactured, cured, smoked, cooked or processed.” No rationale has been offered to suggest that the exempted products, which are also imported meats, are safer than those covered by the governmental restriction. Accordingly, one cannot reasonably conclude that the Wyoming authorities enacted the imported meat labeling restrictions in order to protect citizens from unsafe meat.

     Furthermore, the federal food safety laws and accompanying regulatory system provide substantial assurance that imported meat or poultry will not present any greater health or safety risk than domestically produced meat or poultry. Specifically, a comprehensive federal regulatory oversight system is in place to ensure that imported meat is safe, wholesome, and nutritious at the time of import.¹⁷   Once the imported meat has passed inspection and gained entry into the U.S., it is treated as a domestic product and is, therefore, subject to all provisions of the Federal Meat Inspection Act, Poultry Products Inspection Act, and their implementing regulations. Accordingly, imported products must meet the same standards of quality, wholesomeness, nutrient content, and labeling that apply to domestically produced meats.

     In sum, neither economic protectionism nor general consumer interest form a constitutionally sufficient basis for enacting legislation or regulations that burden interstate commerce. Moreover, Wyoming did not assert concern for the citizenry’s health, the structure of the governmental restrictions do not convey such concern, and such concern would not be credible given the federal system in place. Accordingly, Wyoming has not stated a legitimate interest in burdening interstate commerce and no such interest exists.

B.     Imported Meat Labeling Regulation Unduly Burdens Interstate Commerce

     As discussed above, the second prong of the Commerce Clause inquiry is whether the state requirement imposes an undue burden on interstate commerce. In this case, the Wyoming statute and accompanying regulations would place significant cost and administrative burdens on retailers and wholesalers that would, in turn, place an undue burden on interstate commerce.

     Specifically, once meat and poultry from abroad enters the United States, it enters the same distribution channels as domestic products. Separating fresh cuts of meat and poultry based on their country of origin will be difficult to do and will impose substantial recordkeeping and other administrative costs on retailers and wholesalers. Retailers and wholesalers will incur further costs to execute compliance, such as the costs of labels and the labor necessary to apply the labels.

     Furthermore, the statute and regulations are vague with respect to the steps retailers and wholesalers will be required to take to comply with the law to avoid the fines and criminal penalties that will be imposed by the state for non-compliance. For example, neither the law nor the regulations define the standards for determining whether a given meat cut is “the product of any country foreign to the United States,” a standard that will be difficult for retailers to interpret with certainty. Cattle, for instance, often travel through more than one country during the raising, transportation, slaughtering and processing stages. Birth may occur in one location, while feeding takes place in a second, and slaughter and processing in further locations. Thus, determining which of these would render a given cut of meat “the product of a foreign country” requiring the imposition of an “imported” label under the Wyoming standard will be difficult for retailers to determine.¹⁸

Once the retailer ascertains that the meat is “imported” for purposes of the Wyoming standard, the retailer will be required to identify the “country of origin.” In the case of meat that has been produced in several locations, the law’s requirement will prove burdensome simply to identify the location that must be stated. For example, are cattle that were born in the U.S., fed in Mexico, and slaughtered in the U.S. “product[s] of any country foreign to the U.S.” for purposes of the Wyoming standard? If so, do they “originate” in the U.S. or Mexico? Retailers might be forced to demand and review a life history for every animal slaughtered and exported to the United States for human consumption. Moreover, the inherent uncertainty over the steps retailers will need to employ to avoid monetary and criminal penalties will necessitate the expenditure of substantial resources simply to determine compliance measures. Thus, the inescapable consequence of the regulation will be to place an undue burden on interstate commerce.

III.     Wyoming Imported Meat Labeling Regulation Violates Supremacy Clause of U.S. Constitution

     Article VI, Section 2 of the U.S. Constitution provides that, “the Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”¹⁹   Under the so-called Supremacy Clause, laws or regulations that conflict with federal law are without effect.²⁰   As discussed more fully below, the proposed imported meat labeling regulation and underlying statute are preempted by Federal law, both expressly and by implication.

We note that our opinion in this regard is shared by USDA’s Food Safety and Inspection Service. In an August 12, 1999 letter, Mr. Thomas J. Billy, Administrator of FSIS, states that the Agency has “examined the law and believe[s] that it is preempted by the Federal Meat Inspection Act and Poultry Products Inspection Act.”²¹ A copy of the letter is attached for your reference.

A.     FMIA and PPIA Expressly Preempt Wyoming Imported Meat Labeling Regulation

     The federal Meat Inspection Act and the Poultry Products Inspection Act both contain express preemption provisions with respect to product labeling. In relevant part, the provisions state as follows: “Marking, labeling, packaging or ingredient requirements . . . in addition to, or different than, those made under this chapter may not be imposed by any State . . ..”²²

    As the federal statutes prohibit states from imposing any labeling requirements that differ from or add to the federal requirements, the clause preempts even those state regulations that are more stringent than the FMIA and PPIA. Accordingly, courts have found state labeling requirements to be preempted not only when they directly conflict with a federal labeling requirement, making it impossible to comply with both, but also in circumstances in which a state attempts to enact a requirement that has no counterpart under federal law.²³

The Wyoming Imported Meat Labeling Regulation would require retailers and wholesalers to label packages of meat “produced in a country foreign to the U.S.” as “imported” and to state the country of origin. Neither the FMIA nor the PPIA require country of origin labeling. As the proposed Wyoming regulation would impose labeling that is both in addition to and different from the federal requirements, the Wyoming regulation is expressly preempted by federal law.

B.     Labeling Required under Imported Meat Labeling Regulation is Preempted by Implication

     The Wyoming imported meat labeling regulation is also preempted by implication because the Wyoming rule conflicts with federal law. Specifically, the FMIA and PPIA both prohibit the sale, transport, offer for sale or transportation, or receipt for transportation in commerce of any meat or poultry products that are misbranded at the time of such sale, transportation, offer for sale or transportation, or receipt for transportation.²⁴ A product will be considered “misbranded” if its labeling is false or misleading in any particular.²⁵

     The country of origin labeling that would be required under Wyoming law implies that the imported meat products are of lesser quality or present some health risk. One court noted that country of origin labeling can be designed to make a consumer “feel that the product was something to be shunned, as a matter either of stimulated reaction against it from its labeling, or of uncertainty as to what might be the implications thereof.”²⁶   Indeed, statements by the law’s original sponsor regarding the use in Mexico of a pesticide prohibited in the United States suggest that the imported meat labeling statute may have been intended to imply to Wyoming consumers that imported meat contains an unsafe pesticide.

However, as imported meat products are required to meet the same standards as domestically produced products, imported meat containing an unapproved pesticide would be considered adulterated under federal law and, therefore, would not be permitted to enter the country. Given the comprehensive inspection system in place for imported meat and poultry, the inherent implication of country of origin labeling that imported meat or poultry may be adulterated or unsafe is false and misleading.   To require false and misleading labeling clearly conflicts with the federal laws’ prohibition against misbranded products and, therefore, the Wyoming imported meat labeling regulation is preempted by the federal laws by implication.

IV.     Imported Meat Labeling Regulation Violates Free Speech Clause of U.S. Constitution

     The First Amendment of the U.S. Constitution provides that, “Congress shall make no law . . . abridging the freedom of speech . . ..”²⁷   The First Amendment limits the government’s ability to compel speech, as well as the government’s ability to restrict speech.²⁸   The Wyoming law and accompanying regulations attempt to compel speech in an unlawful violation of the First Amendment.

     The appropriate standard for determining whether a governmental compulsion of speech is unlawful is set forth in Central Hudson Gas & Electric Corporation v. Public Service Commission.²⁹   In order for compelled speech to meet the test set forth in Central Hudson, the government must assert a substantial interest in support of the compelled speech and the required speech must be narrowly tailored to advance the asserted substantial interest directly.

     The legislative history offers little to determine whether Wyoming has a substantial interest in requiring country of origin labeling for imported meat. Informing consumers, however, is an insufficient justification for compromising a protected constitutional right.³⁰   Moreover, since Wyoming bears the burden for establishing a substantial interest in compelling speech, the absence of a solid record on this issue indicates that the state has not met its obligation.

Similarly, no record exists to demonstrate that the speech that would be compelled under the regulation would advance the government’s interest in this case. As states must supply empirical evidence of direct advancement of the interest by the compelled speech, Wyoming has not met its burden in this regard, either.

*          *          *

     For the foregoing reasons, we respectfully urge the Wyoming Department of Agriculture to withdraw the proposed imported meat labeling regulation.

Sincerely,

Tim Hammonds
President and CEO

Attachment

² See, Wyo. Dep’t of Ag., “Notice of Intent To Adopt Rules and Regulations,” June 26, 2000.

³ Wyo. Stat. § 35-7-119(e).

⁴ Wyo. Stat. § 35-7-119(e)(i).
   
⁵ Wyo. Stat. § 35-7-119(e).

⁶ Wyo. Food Code, Ch. 4, § 2(a).

⁷ Wyo. Food Code, Ch. 4, § 2(b)(ii).     

⁸ Wyo. Food Code, Ch. 4, § 2(b).

⁹ Wyo. Food Code, Ch. 4, § 3.

¹⁰ U.S. Con st., art. I, § 8.

¹¹ Hughes v. Oklahoma, 441 U.S. 332, 326 (1979); H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525 (1949); Welton v. Missouri, 91 U.S. 275 (1873).

¹² See, e.g., Bacchus Imports, Ltd., v. Dias, 468 U.S. 263 (1984).

¹³ American Meat Institute v. Ball, 550 F. Supp. 285 (W.D. Mich. 1982), aff’d 724 F. 2d 45 (6th Cir. 1984); Brown-Forman Distillers Corp. v. N.Y. State Liquor Authority, 476 U.S. 573 (1986).

¹⁴ “Governor Opts Against Signing Meat Labeling Bill,” Associated Press Newswires (Feb. 26, 1999) (emphasis added), citing Letter from Governor Jim Geringer to Joe Mayer, Secretary of State (February 25, 1999).

¹⁵ New Energy Co. of Indiana v. Limbach, 486 U.S. 269 (1988); Tupman Thurlow Co. v. W.F. Moss, 252 F. Supp. 641 (D. Ore. 1996); Brown-Forman Distillers Corp. v. N.Y. State Liquor Authority, 476 U.S. 573 (1986); National Meat Ass’n v. Deukmejian, 743 F. 2d 656 (9th Cir. 1984), aff’d 469 U.S. 1100 (1985) (economic protectionism subject to virtually per se rule of invalidity).

¹⁶ Tupman Thurlow Co. v. W.F. Moss, 252 F. Supp. 641 (M.D. Tenn. 1966) (striking down as unreasonable and discriminatory burden on interstate commerce Tennessee law requiring identification of foreign meat and meat food products as such, and the registration and licensing of those who handle imported meat and meat food products).

¹⁷ Meat and poultry from foreign countries is eligible for entry to the United States only if the inspection system in the foreign country has been evaluated and found acceptable by the U.S. Department of Agriculture’s (USDA’s) Food Safety and Inspection Service (FSIS). 9 C.F.R. § 327.2(a)(2); 9 C.F.R. § 381.196(a)(2). The system must have a program administered by the foreign national government and provide standards equivalent to those required in the United States. Only a small number of countries have been deemed by FSIS to have adequate inspection systems. Plants in eligible countries must be certified annually by officials of the foreign country’s meat inspection system. Upon arrival in the United States, all imported meat and poultry must be reinspected by FSIS within 72 hours of arrival by an FSIS inspector at a designated official import inspection establishment.

¹⁸ In light of the criminal penalties that may attach to a misinterpretation of the standard, we further assert that the regulation and underlying statute are void for vagueness and, therefore, violate the due process clause of the Fourteenth Amendment of the U.S. Constitution. See, Zwickler v. Koota, 389 U.S. 241 (1967); Jordan v. DeGeorge, 341 U.S. 223 (1951); Gentile v. State Bar of Nevada, 115 L.Ed.2d 888 (1991). The law and regulation are also vague with respect to the meat products to which the imported meat labeling requirements would apply. Specifically, given the broad category of meat that could be considered “processed,” the standard could conceivably exclude all but whole carcasses. As the legislature apparently intended the labels to be seen by consumers and consumers rarely purchase entire carcasses, we suspect that the legislature intended a different result, however, the law and regulations are unclear at best with respect to the meat products that must be labeled.

¹⁹ U.S. Const. art. VI, § 2.

²⁰ Maryland v. Louisiana, 451 U.S. 725 (1981).

²¹ Letter from Thomas J. Billy to Mary Lou Chapman (August 12, 1999) (discussing “Fair Packaging and Labeling Provisions” of 1999 Wyo. Sess. Laws 108).

²² 21 U.S.C. § 678 (FMIA); 21 U.S.C. § 467(e) (PPIA) (emphasis added) (virtually identical language).

²³ Anthony J. Pizza Food Products Corp. v. Wisconsin Dep’t of Agriculture, 676 F.2d 701 (7th Cir. 1982) (unpublished opinion adopting district court opinion); National Broiler Council v. Voss, 44 F. 3d 740 (9th Cir. 1994); Armour & Co. v. Ball, 468 F. 2d 76 (6th Cir. 1972), cert. den’d, 411 U.S. 981 (1973); Grocery Manufacturers of America v. Gerace, 581 F. Supp. 658 (S.D.N.Y. 1984), aff’d in part and rev’d in part on other grounds, 755 F.2d 993 (2d Cir. 1985).

²⁴ 21 U.S.C. § 610(c) (FMIA); 21 U.S.C. § 458(a)(2) (PPIA).

²⁵ 21 U.S.C. § 601(n)(1) (FMIA); 21 U.S.C. § 453(h)(1) (PPIA).

²⁶ Armour, 270 F. Supp. at 945-46.

²⁷ U.S. Const. amend. I, cl. 2.

²⁸ International Dairy Foods Association v. Amestoy, 92 F.3d 67 (2d Cir. 1996); Wooley v. Maynard, 430 U.S. 705 (1977).
   
²⁹ Central Hudson Gas & Elec. Corp. v. Public Serv. Commission, 447 U.S. 557 (1980).

³⁰ IDFA v. Amestoy, 92 F. 3d at 74 (if consumer interest alone was a substantial interest for purposes of the First Amendment, there would be no end to the information states could require companies to disclose to the public).