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Ranchers, beef consumers ask 10th Circuit to revive US product label challenge

USDA labeling rules appear to allow the meat of animals that have spent almost no time in the United States be labeled as a U.S. product. But what did Congress intend?

(CN) — New Mexico cattle ranchers and beef consumers asked a 10th Circuit panel Monday to revive a lawsuit against beef manufacturers over cattle that are raised overseas but labeled as products of the United States.

In January 2020 a class of meat consumers and New Mexico ranchers sued Tyson Foods, Cargill Meat Solutions, JBS USA Food Company and National Beef Packing Company for mislabeling cattle raised overseas and shipped to the U.S. for slaughter and packaging as “products of the U.S.”

A federal judge granted Tyson’s motion to dismiss in November 2020. Plaintiffs Robin Thornton and Michael Lucero appealed.

“We have a situation where we have floating feed lots that come across the ocean under really no regulation whatsoever, they offload cattle, stand on American soil for minutes, maybe hours,” said attorney Blair Dunn, of the firm Western Agriculture, Resource and Business Advocates. “Then they’re still receiving that same label, even though they didn’t really breathe much of the air here in this country, or eat much of the feed here,” Dunn said.

Chief U.S. Circuit Judge Timothy Tymkovich, appointed by George W. Bush, challenged this characterization.

“But they were slaughtered and processed here, why doesn’t that make them technically a product of the United States?” Tymkovich asked.

Dunn answered a proper label should reflect both countries of production, like the U.S. and Brazil, or the U.S. and Australia.

U.S. Circuit Judge Nancy Mortiz, a Barack Obama appointee, asked Dunn why the plaintiffs were suing Tyson for following rules created by the U.S. Department of Agriculture. 

“The USDA took that very label and in authorizing it said ‘product of the United States’ does not mean the product is only from animals that were born, raised, slaughtered and prepared in the United States," Mortiz said. "Whether or not I agree with them, and I’m not sure I would, the agency has that definition.”

Dunn noted the agency document being used is mere guidance and argued it should not override clearly established law.

On behalf of the defendants, attorney Aaron Van Oort of the Des Moines, Iowa, firm Faegre Drinker Biddle & Reath, agreed with Moritz that a private company should not be punished for following USDA rules.

“Plaintiffs can sue USDA and argue that its rules are capricious and wrong,” Van Oort said. “You can’t hold a private company liable for damages for doing what the USDA approved, while the approval stands.”

Senior U.S. Circuit Judge Carlos Lucero didn’t want to talk about the USDA’s role — he wanted to understand the intent of Congress.

“Could Congress’ law have intended to be outright deceptive to consumers in the labeling of products?” the Bill Clinton appointee asked. “Congress couldn’t have intended that a slab of beef could be taken off a ship from China and marked ‘product of the United States’ simply because they put a little bit of Saran wrap over the product, correct?”

While Van Oort disagreed with the characterization of “deceptive,” he didn’t challenge the perception that the USDA rules allow the loophole. Lucero pressed on.

“If Congress intended that there be a uniform system and kicked all of the states out of the process, why on Earth did they place this language into the statute that says very expressly the states and the territories and the district shall have concurrent jurisdiction for misbranding,” Lucero said. “What do you want me to do with that, sit on it and keep it warm? The language is there.”

The hearing was conducted remotely and broadcast via YouTube. The panel did not indicate when or how it would decide the case. Judge Lucero and the plaintiff Michael Lucero are not related.

For more follow Courthouse News and Amanda Pampuro on Twitter.

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