Proposed Regulation To Support "Country of Origin Meat Labeling Law

Following up on your October 1, 2002, memorandum addressed to “All Retail Food Establishments,” the purpose of this letter is to offer comments from the Food Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the regulation proposed by the Mississippi Department of Agriculture and Commerce to implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law (hereinafter “S.B. 2367”). 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.

Full Comments

th 655 15 Street, N.W. Washington, DC 20005-5701 Tel: (202) 452-8444 Fax: (202) 429-4519 E-mail: fmi@fmi.org Web site: www.fmi.org October 30, 2002 Ms. Julie McLemore Director, Bureau of Regulatory Services Department of Agriculture and Commerce PO Box 1609 Jackson, Mississippi 39215 Re: Proposed Regulation To Support “Country of Origin Meat Labeling Law” Dear Ms. McLemore, Following up on your October 1, 2002, memorandum addressed to “All Retail Food Establishments,” the purpose of this letter is to offer comments from the Food Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the regulation proposed by the Mississippi Department of Agriculture and Commerce to implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law (hereinafter “S.B. 2367”). 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. In this regard, please see the enclosed letter from the U.S. Department of Agriculture (USDA), in which the Agency concludes that a substantially similar Louisiana statute and regulations are preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we respectfully request that the Mississippi Department of Agriculture and Commerce (the Department) withdraw the proposed regulation. Ms. Julie McLemore October 30, 2002 Page 2 th 655 15 Street, N.W. Washington, DC 20005-5701 FMI conducts programs in research, education, industry relations and public Tel: (202) 452-8444 affairs on behalf of its 2,300 member companies — food retailers and wholesalers — in Fax: (202) 429-4519 the United States and around the world. FMI’s U.S. members operate approximately E-mail: fmi@fmi.org 26,000 retail food stores with a combined annual sales volume of $340 billion — three- Web site: www.fmi.org quarters of all food retail store sales in the United States. FMI’s retail membership is composed of large multi-store chains, regional firms and independent supermarkets. Its international membership includes 200 companies from 60 countries. The Retail Association of Mississippi represents a broad cross-section of retail stores that conduct business in the state of Mississippi. October 30, 2002 I. Mississippi Country of Origin Meat Labeling Regulation Ms. Julie McLemore Director, Bureau of Regulatory Services Senate Bill 2367, which was signed by the Mississippi governor, enacted a new Department of Agriculture and Commerce provision to the state statutes to require unprocessed meat – whether fresh or frozen – to PO Box 1609 be labeled with information concerning the meat’s country of origin “to the extent Jackson, Mississippi 39215 allowed by the Federal Meat Inspection Act and applicable federal meat inspection regulations.” In particular, labeling on meat offered for sale in Mississippi must bear Re: Proposed Regulation To Support “Country of Origin Meat Labeling either (1) the name of the country of origin preceded by the words “Product of” or (2) one Law” of the following designations that are specified in the statute: “Imported,” “American,” or 1 “Blend” of imported and American meats. The statement must appear on the immediate Dear Ms. McLemore, wrapping or container of the meat unless the meat is displayed unwrapped, in which case 2 the statement may appear on a sign included with the display. Prepared meat products Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consumption on the premises and “fully cooked meat as defined by the U.S. 3 Food Establishments,” the purpose of this letter is to offer comments from the Food Department of Agriculture” are specifically exempted from the scope of the law. Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the regulation proposed by the Mississippi Department of Agriculture and Commerce to Each violation of the statute is punishable by civil penalties of up to $500.00; 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law each day on which a violation occurs is considered a separate offense under the statute. (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed The Mississippi Department of Agriculture and Commerce is charged with the regulation on the grounds that, among other things, it is an unconstitutional exercise of administration and enforcement of the Act and directed to adopt the rules and regulations 5 power in violation of several provisions of the United States Constitution, including the necessary for the Department to carry out the Act. 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 Toward this end, on October 1, 2002, the Department issued a memorandum Fourteenth Amendment. addressed to “All Retail Food Establishments” with a proposed regulation interpreting the 6 law and authorizing comments to be submitted until October 30, 2002. The proposed In this regard, please see the enclosed letter from the U.S. Department of 1 Agriculture (USDA), in which the Agency concludes that a substantially similar S.B. 2367, Sec. 1(1). 2 Louisiana statute and regulat Id. ions are preempted by the Federal Meat Inspection Act 3 Id. at Sec. 1(4). (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 4 Id. at Sec. 1(2). Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 5 Id. at Sec. 1(3). respectfully request that the Mississippi Department of Agriculture and Commerce (the 6 Although this notice was apparently posted on the Department’s website and mailed to the Department) withdraw the proposed regulation. corporate headquarters of some companies doing business in Mississippi, we are aware of no other form of n otice given to the public. The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution necessitates the provision of adequate notice of regulatory proceedings to afford the public an opportunity to participate in rulemaking, which may substantially alter their constitutionally protected interests. Ms. Julie McLemMs. Julie McLemoore re October 30, 2002 October 30, 2002 Page 2 Page 3 th 655 15 Street, N.W. Washington, DC 20005-5701 regulation broadly defines mFMI conducts programeat as “the edibles in research, education, industry relations and public parts of the carcass of mammals and their Tel: (202) 452-8444 7 affairs on behalf of its 2,300 morgans and glands.” The proposal states that labels on member companies — food retailers and wholesalers — in eat products may declare the Fax: (202) 429-4519 the United Sproduct to be of U.S. origin only if thtates and around the world. FMe animI’s U.S. mal was exclusively born, raised and embers operate approximately E-mail: fmi@fmi.org 8 26,000 retail food stores with a comslaughtered in the U.S. Product that is blended of ibined annual sales volume ofmported meat and Am $340 billion — three-erican meat Web site: www.fmi.org quarters of all food retail store sales in thmust be labeled as “Blend of American ae United States. FMI’s retail mnd imported meat from ‘the country where embership is 9 comproduced.’”posed of The proposed regulations allow a retail large multi-store chains, regional firms and independent super that “sells only Amermerican arkets. Its meat” 10 international mto display a single sign statiembership inng that fact, such as “only Amcludes 200 companies from 60 cerican mountries. The Retail eat sold here.” Association of Mississip pi represents a broad cross-section of retail stores that conduct business in the state of Mississipp The draft regulations provide somi. e flexibility with respect to the labeling that October 30, 2002 appears to exceed the scope of the underly ing statute. Specifically, COL Proposed Section 3(a) allows the country of origin la beling information to be provided by means of a label, stamI. Mississippi Country of Origp, mark, placard or other in Meaclear and visible sign on the “covered t Labeling Regulation 11 Ms. Julie McLemore commodity” or on the package, display, holding unit, or bin containing the commodity 12 Director, Bureau of Regulatory Services at the f iSenate Bill 2367, which was signed by thnal point of sale. Nonetheless, if a placard e Mississippi governor, enacted a new or sign is used, the proposed 13 Department of Agriculture and Commerce regulations require the sign to provision to the state statutes to require unprocessed mbe at least 8.5” x 14”, with a minimeat – whether fresh or frozen – to um of 1” lettering. PO Box 1609 be labeled with information concerning the meat’s country of origin “to the extent Jackson, Mississippi 39215 allowed by the FederaCOL Proposed Sec. 3(b) also provides thatl Meat Inspection Act and applic the retailer is not required to provide able federal meat inspection any additional informregulations.” In particular, ation on any “covered labeling on meat offecomred for samodity” that is already individually le in Mississippi must bear Re: Proposed Regulation To Support “Country of Origin Meat Labeling labeled for retail sale regarding country ofeither (1) the name of the country of origin preceded by the origin in a manner that comwords “Product of” or (2) one plies with COL 14 Law” Proposed Sec. 2.of the following designations th at are specified in the statute: “Imported,” “American,” or 1 “Blend” of imported and American meats. The statement must appear on the immediate Dear Ms. McLemore, wrapping or container of the meat unless the meat is displayed unwrapped, in which case 2 the statement may appear on a sign included with the display. Prepared meat products Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consumption on the premises and “fully cooked meat as defined by the U.S. 3 Food Establishments,” the purpose of this letter is to offer comments from the Food Department of Agriculture” are specifically exempted from the scope of the law. Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the regulation proposed by the Mississippi Department of Agriculture and Commerce to Each violation of the statute is punishable by civil penalties of up to $500.00; 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law each day on which a violation occurs is considered a separate offense under the statute. (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed The Mississippi Department of Agriculture and Commerce is charged with the regulation on the grounds that, among other things, it is an unconstitutional exercise of administration and enforcement of the Act and directed to adopt the rules and regulations Neither the memorandum nor the draft regulations indicate the proposed codification of the 5 power in violation of several provisions of the United States Constitution, including the necessary for the Department to carry out the Act. regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; Proposal.” 7 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the Toward this end, on October 1, 2002, the Department issued a memorandum 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. addressed to “All Retail Food Establishments” with a proposed regulation interpreting the 9 COL Proposal, Sec. 2(c). 6 law and authorizing comments to be submitted until October 30, 2002. The proposed 10 COL Proposal, Sec. 4. In this regard, please see the enclosed letter from the U.S. Department of 11 “Covered commodity” is not a term of art used either in the Mississippi statute or draft 1 Agriculture (USDA), in which the Agency concludes that a substantially similar reg ulationsS.B. . T2h367is pr, Sec. 1(1ovision a)ppea. rs to be taken directly from Section 10861 of the Farm Security and Rural 2 InLouisiana statute and regulat vestmeId. nt Act of 2002 (P.L. 107-1ions are preem71) (the Farm Bipted by the Fell), which amendedde tral Mehe Agriat Insculturalpection Ac Marketing t Act of 3 1 946 to estabId. at Seclish a retail country o. 1(4). f origin labeling program for “covered commodities,” including meat, (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 4 p erishable agricuId. at Secltu. 1(ral co2). mmodities, seafood, and peanuts. Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 512 Id. at SecIn contrast. ,1( th3)e. statute appears to delineate the appropriate method of labeling according to respectfully request that the Mississippi Department of Agriculture and Commerce (the 6 wh ether thAlthe mougeat is wrapph this notice ed owas apparenr unwrappedtly po at the timsted one th thate it is dDepartispmlayedent’s we to thbsie tpue anblic. d mSee S.Bailed to .t h2e 367 at Department) withdraw the proposed regulation. corSec. porat1(1)e . heaThedqua langrtuaersge ofof so tmhe pe comropopsedani rees doigulangtion i busis apnesspa irentn Mliyssi dessiriveppd i, we afrom Sectre awion 1are of08 n1o6 otofhe thr e foFarrmm of nBill. otice given to the public. The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution 13 necessitates the prov COL Proposal, Sec. ision of ad4.equ ate notice of regulatory proceedings to afford the public an opportunity 14 to participThiate ins, to ruo, alemppeakars ting,o wh beich de mriveay sud frombstan Secttiallyion 1 alter th0816eir co of the nsFtituarmti Bonialllly pro. tected interests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemooore re re October 30, 2002 October 30, 2002 October 30, 2002 Page 3 Page 4 Page 2 th 655 15 Street, N.W. Washington, DC 20005-5701 regulation broadly defines m FMI conducts programeat as “the edibles in research, education, industry relations and public parts of the carcass of mammals and their Tel: (202) 452-8444 7 affairs on behalf of its 2,300 m organs and glands.” The proposal states that labels on member companies — food retailers and wholesalers — in eat products may declare the Fax: (202) 429-4519 the United SII. product to be of U.S. origin only if thMississippi Country of Origtates and around the world. FMin Meae animI’s U.S. mal was exclusively born, raised and t Labeling Regulation Violates Suembers operate approximapremacy tely E-mail: fmi@fmi.org 8 26,000 retail food stores with a comslaughtered in the U.S.Clause of U.S. Constitution Product that is blended of ibined annual sales volume ofmported meat and Am $340 billion — three-erican meat Web site: www.fmi.org quarters of all food retail store sales in thmust be labeled as “Blend of Am erican ae United States. FMI’s retail mnd imported meat from ‘the country where embership is 9 comproduced.’” posed ofArticle VI, Section 2 of the U.S. Cons The proposed regulations allow a retail large multi-store chains, regionatitul firtion pms and independent super that “sells only Amrovides that, “the Constitution, and ermerican arkets. Its meat” 10 international mto display a single sign statithe Laws of the United Sembership intates . . . shall beng that fact, such as “only Amcludes 200 com the suprempanies frome Law of the Land; and the Judges 60 cerican mountries. The Retail eat sold here.” Association of Mississip in every State shall be bound thereby, any Thipi represents a broad cross-section ofng in the Constitution or Laws of any State retail stores that conduct 15 business in the state of Mississipp to the Contrary notwithstanding.”The draft regulations provide somi. Under the so-called Suprem e flexibility with respecacy Claust to the labe, laws or eling that 16 October 30, 2002 appears to exceed the scope of the underlyregulations that conflict with federal law are withing statute. Specifically, COL Proposed out effect. As discussed more fully below, Mississipp Section 3(a) allows the country of origin lai’s country of origin meat labeling rebeling informgulations and the underlying ation to be provided by means of statute are preema label, stamI. Mississippi Country of Origp, mapted by Federal lawrk, placard or other ,in Mea both expressly and by implication. clear and visible sign on the “covered t Labeling Regulation 11 Ms. Julie McLemore commodity” or on the package, display, holding unit, or bin containing the commodity 12 Director, Bureau of Regulatory Services at the f iA. Senate Bill 2367, which was signed by thnal point ofFMIA Expr sale. Nonetheless, if a placard essly Preempts Misse Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed igin Meat 13 Department of Agriculture and Commerce provision to the state statutes regulations require the sign to Labeling Regulation to require unprocessed mbe at least 8.5” x 14”, with a minimeat – whether fresh or frozen – to um of 1” lettering. PO Box 1609 be labeled with information concerning the meat’s country of origin “to the extent Jackson, Mississippi 39215 allowed by the FederaCOL ProposThe Federal Meat Ined Sec. 3(b) also provides thatl Meat Inspection Act (FMIspection Act andA) contains an express preem applic the retailer is not required to provide able federal meat inspecption tion any additional informregulations.” In particular, provision regarding product labeling. In releation on any “covered labeling on meat offecomvant part, the provision states as followred for samodity” that is already individually le in Mississippi must bear s: Re: Proposed Regulation To Support “Country of Origin Meat Labeling labeled for retail sale regarding country ofeither (1) the nam“Marking, labelinge of the c, packaging or ingredient requiremountry of origin preceded by the origin in a ments . . . anner that comwords “Product of” or (2) one in addition to, or different plies with COL 14 17 Law” Proposed Sec. 2.of the following designations ththan, those made under this chapter m at are specified in the say not be imposed by any State . . ..”tatute: “Imported,” “Am “Labelingerican,” or ” 1 is defined under the FMIA as “all labels “Blend” of imported and American meats.and other written, printed or graphic m The statement must appear on the immatter ediate Dear Ms. McLemore, (1) upon anywrapping or container of the m article or any of its containers oeat unless the rm wrappers, or (2eat is displayed unwrapped, in which case ) accompanying such 18 2 article.the statem” ent may appear on a sign included with the display. Prepared meat products Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consum ption on the premises and “fully cooked meat as defined by the U.S. 3 Food Establishments,” the purpose of this letter is to offer comments from the Food DepartmAs the federal statute prohibits statesent of Agriculture” are specifically exempted from from imposing any labeling requirem the scope of the law. ents Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ from or add to the federal requirements, the clause preempts even those state regulation proposed by the Mississippi Department of Agriculture and Commerce to regulations that are mEach violation of the statute is puniore stringent than the FMIA. Accordshable by civil penalties of up to $500.00; ingly, courts have found state 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law each day on which a violation occurs is considlabeling requirements to be preempted not only when they directly conflict with the ered a separate offense under the statute. (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed federal labeling requiremThe Mississippi Departmeent, mnt of Agricultuaking it imre and Commpossible to comerce is charged with the ply with both, but also in regulation on the grounds that, among other things, it is an unconstitutional exercise of circumadministration and enforcemstances in which a state attement of the Act and pts to enact a requiremdirected to adent thatopt the has no counterpart rules and regulations Neither the memorandum nor the draft regulations indicate the proposed codification of the 19 5 power in violation of several provisions of the United States Constitution, including the under federal law.necessary for the Departm ent to carry out the Act. regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; Proposal.” 7 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the Toward this end, on October 1, 2002, The Mississippi country of origin meatthe Departm labeling regulations went issued a mould require emorandum 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. addressed to “All Retail Food Esretailers either to label meat produtablishmcts or to post a sign accoments” with a proposedpanying the p regulation interpreting the roducts 9 COL Proposal, Sec. 2(c). 6 law and authdeclaring the products’ country of origin or orizing comments to be submitted until October 30, 2002.whether the products were produced in the The proposed 10 COL Proposal, Sec. 4. In this regard, please see the enclosed letter from the U.S. Department of 11United States, a “foreign country,” or both. The FMIA does not require country of origin “Covered commodity” is not a term of art used either in the Mississippi statute or draft 1 Agriculture (USDA), in which the Agency concludes that a substantially similar reg ulationsS.B. . T2h367is pr, Sec. 1(1ovision a)ppea. rs to be taken directly from Section 10861 of the Farm Security and Rural 152 InLouisiana statute and regulat vestmeId. U.Snt Act. Const. of 20 art02 (. VP.LI, . § 102. 7-1ions are preem71) (the Farm Bipted by the Fell), which amendedde tral Mehe Agriat Insculturalpection Ac Marketing t Act of 316 1 946 to estabId. at SecMaryllisahn a retail country od. v.1( L4)oui. siana, 451f orig U.S. 7in lab25e (lin198g pro1). gram for “covered commodities,” including meat, (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 174 p e rishable agricuId. at Sec21 U.S.Cltu.. §1(ral co 62)7. 8 mmo(emphasidities, seafos added)o. d, and peanuts. Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 18512 Id. at Sec2In1 co U.S.C. § 601ntrast. ,1( th3)e. st(pat). ute appears to delineate the appropriate method of labeling according to respectfully request that the Mississippi Department of Agriculture and Commerce (the 619 th wh ether thAlthAnte mhougoeat is wrappny J.h th Piis znza Fotice ed oodowas apparenr un Prwrapoducptse Cdtly po oat thrp. ve timsted. Wi one thsco thnate si it is dDen Departp’tispm layedofent A’s wegri tocul thbsite utrepue an, 67blic. d m6 F.See S.Bai2dled t 70o1 .t ( h27e 367 Cir. at Department) withdraw the proposed regulation. cor19Sec. 8p2orat1() (1)ue n. pheaTheubldiqua lsheangd rtuaersopige onifofo sno t amhde peo comprtoinpg opsedanidist reeris doictgu colangturtion i b uosipsi apnessniopan) irentn; MNaliytiossi denassiril Broveppd i, we afriler Coom Sectre aunwicil v. on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 th th nBill. (9otice Cir. gi1v994en t)o; th Arme pouur &blic. Co. v. B The Duae Proll, 46cess 8 F.Clau 2d 76se of t (6 Cirhe Fo. 1urteen972), certth Am. deen’nddm, 411ent of th U.S. 98e U.S. Con1 (1973s)titu; tion 13 nGrocecessitates the prov ery MCOanufacturersL Proposal, Sec. ision of A of mad4erica v. .equ ate nGerotice of reguace, 581 F. Supplatory pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 14 topart pa orticipn otThiherate ins g, tro ouruo, alemndppes,a 755kars ting F.2,o wh bedich 993 de mri ve(a2y sud d Cir. 19frombstan Sect85)tiallyi. on 1 alter th0816eir co of the nsFtituarmti Bonialllly pro. tected interests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemoooore re re re October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 Page 4 Page 2 Page 5 Page 3 th 655 15 Street, N.W. Washington, DC 20005-5701 regulation broadly defines m labeling. As the Mississippi law would imFMI conducts programeat as “the edibles in research, epose labeling that is in addition to and ducation, industry relations and public parts of the carcass of mammals and their Tel: (202) 452-8444 7 affairs on behalf of its 2,300 morgans and glands.” different than the federal FMIA labeling re The proposal states that labels on member companquiremies — food retailers and wholesalers — in ents, the Mississippi requiremeat products may declare the ents are Fax: (202) 429-4519 20 the United SII. product to be of U.S. origin only if thexpressly preemMississippi Country of Origtates and around the world. FMpted by federal law. in Meae anim I’s U.S. mal was exclusively born, raised and t Labeling Regulation Violates Suembers operate approximapremacy tely E-mail: fmi@fmi.org 8 26,000 retail food stores with a comslaughtered in the U.S.Clause of U.S. Constitution Product that is blended of ibined annual sales volume ofmported meat and Am $340 billion — three-erican meat Web site: www.fmi.org quarters of all food retail store sales in thmust be labeled as “Blend of Am Moreover, the fact that the Mississierican ae United States. FMI’s retail mnd imppi statute acknowledges the preemported meat from ‘the country where embership is ptive 9 comproduced.’” nature of the FMIA at the outset by stating thposed ofArticle VI, Section 2 of the U.S. Cons The proposed regulations allow a retail large multi-store chains, regionaat the requiremtitul firtion pms and independent super that “sells only Amrovides thents only apply to the extent at, “the Constitution, and ermerican arkets. Its meat” 10 international mto display a single sign statithat they are “allowed bythe Laws of the United Sembership int the FMIA and aates . . . shall beng that fact, such as “only Amcludes 200 com the suprempplicable mpanies frome Law of the Land; and the Judges eat inspection regulations” cannot 60 cerican mountries. The Retail eat sold here.” Association of Mississip in every Ssave the Mississippi provisions fromtate shall be bound thereby, any Thipi represents a broad preemption. Wcross-section ofng in the Constitution or Laws of any State hether or not th retail stores that conduct e Mississippi statute 15 business in the state of Mississipp to the Contrary notwithstanding.”recognizes the preemThe draft regulations prptive power of the federaovide somi. Under the so-called Suprem e flexibility wl statute is irrelevant; if the Supremith respecacy Claust to the labe, laws or eling that acy 16 October 30, 2002 appears to exceed the scope of the underlyregulations that conflict with Clause applies, the state statute federal law are withwill be preeming statute. Specifically, COL Proposed pted, even if it isout effect. As discussed m silent in this regard. And, ore fully below, MississippSection 3(a) allows the country of origin la as the labeling requirements are preempted ini’s country of origin meat labeling rebeling inform their entirety, none gulations and the underlying ation to beof the statute is provided by means of statute are preema label, stamI. “allowed by the FMIA.” Mississippi Country of Origp, mapted by Federal lawrk, placard or other ,in Mea both expressly and by implication. clear and visible sign on the “covered t Labeling Regulation 11 Ms. Julie McLemore commodity” or on the package, display, holding unit, or bin containing the commodity 12 Director, Bureau of Regulatory Services at the f iSenate Bill 2367, which was signed by thA. B. nal point ofFMIA ExprLabeling Required under Country of Origin Meat Labeling sale. Nonetheless, if a placard essly Preempts Misse Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed igin Meat 13 Department of Agriculture and Commerce provision to the state statutes regulations require the sign to Labeling Regulation Regulation Is Preempted by Implication to require unprocessed mbe at least 8.5” x 14”, with a minimeat – whether fresh or frozen – to um of 1” lettering. PO Box 1609 be labeled with inform ation concerning the meat’s country of origin “to the extent Jackson, Mississippi 39215 allowed by the Federa COL ProposThe Mississippi country of origin mThe Federal Meat Ined Sec. 3(b) also provides thatl Meat Inspection Act (FMIspection Act andeat A) contains an express preemlabeling regulation is applic the retailer is not required to provide able federal m also preemeat inspecption tion pted by any additional informimregulations.” In particular, provision regarding product labeling. In releplication because the Mississippation on any “covered labeling on mi rule conflieat offecomvant part, the provision states as followcts with federal law in sevred for samodity” that is already individually le in Mississipperal imi must bear portant s: Re: Proposed Regulation To Support “Country of Origin Meat Labeling labeled for retail sale regarding country ofrespects. First, the FMIA prohibits the sale, either (1) the nam“Marking, labelinge of the c, packaging or ingredient requiremountry of origin preceded by the origin in a mtransport, offer for saleents . . . anner that comwords “Product of” or (2) one in addition to, or different or transportation, or plies with COL 14 17 Law” Proposed Sec. 2.of the following designations threceipt for transportation in commthan, those made under this chapter m at are specified in the sercea of ay not be imposed by any State . . ..”ny meat products that are mtatute: “Imported,” “Amisbranded at the “Labelingerican,” or ” 1 is defined under the FMIA as “all labels “Blend” of imported and Amtime of such sale, transportation, offer foerican meats.and other written, printed or graphic mr sale or transportation, or receipt for The statement must appear on the immatter ediate 21 Dear Ms. McLemore, (1) upon anywrapping or container of the mtransportation. article o A product will br any of its containers oeat unless the e considered “mrm wrappers, or (2eat is displayed unwrapped, in which case isbranded” if its lab) accompeling isanying such false or 18 22 2 marticle.the statemisleading in any particular.” ent may appear on a sign included with the display. Prepared meat products Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consum ption on the premises and “fully cooked meat as defined by the U.S. 3 Food Establishments,” the purpose of this letter is to offer comments from the Food Departm The country of origin labeling that As the federal statute prohibits statesent of Agriculture” are specifically exempted fromw fromould be required imposing any labeling requirem the scope of the law.under Mississippi law ents Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ fromimplies that the im or add to the federal requireported meat products are ofments lesser quality or present som, the clause preempts even those se health risk. tate regulation proposed by the Mississippi Department of Agriculture and Commerce to regulations that are mOne court noted that country of origin labeliEach violation of the statute is puniore stringent than the FMIA. Accordshable by civil penalties of up to $500.00; ng can be designed to mingly, courts have found state ake a consumer “feel 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law labeling requiremeach day on which a violation occurs is considthat the product was something to be shunned, ents to be preempted not only when they directly conflict with the ered a separate offeas a matter either ofnse under the s stimulated reaction tatute. (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed federal labeling requiremagainsThe Mississippi Departmt it from its labeling, or ofeent, mnt of Agricultuaking it im uncertaintyre and Commpo as to what mssible to comerce is charged with the ipght be the imly with both, but also in plications 23 regulation on the grounds that, among other things, it is an unconstitutional exercise of circumthereof.”administration and enforcemstances in which a state attem Although domestic product ent of the Act and pts to will also benact a requiremdirected to ade subject to labeling, it ment thatopt the has no counterpart rules and regulations ay be Neither the memorandum nor the draft regulations indicate the proposed codification of the 19 5 power in violation of several provisions of the United States Constitution, including the accomunder federal law.necessary for the Departmplished by a placard or with th ent to carry out the Act.e more familiar sound ing “American” or “Product of regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; USA;” in contrast, the “imported” labeling may raise consumer concerns regarding the Proposal.” 7 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the safety of the product. The Mississippi country of origin mToward this end, on October 1, 2002, eatthe Departm labeling regulations went issued a mould require emorandum 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. addressed to “All Retail Food Esretailers either to label meat produtablishmcts or to post a sign accoments” with a proposedpanying the p regulation interpreting the roducts 9 COL Proposal, Sec. 2(c). 6 law and authdeclaring the products’ country of origin or orizing comments to be submitted until October 30, 2002.whether the products were produced in the The proposed 10 COL Proposal, Sec. 4. In this regard, please see the enclosed letter from the U.S. Department of 11United States, a “foreign country,” or both. The FMIA does not require country of origin “Covered commodity” is not a term of art used either in the Mississippi statute or draft 120 Agriculture (USDA), in which the Agency concludes that a substantially similar reg ulationsS.B. Note, too, t. T2h367is pr, Sec. 1(1ovihat sithe receon a)ppea. nt rpasss to age be taof the cken directountrlyy o fromf or Sectigini labon 1elin08g pro61 ofg trhaem in Farm Section Securi 10ty and816 of Ru tralhe 215 FarmInLouisiana statute and regulat vest BilmelId. U.Snt d Actoe. Const.s no oft sav 20 art02e ( th. VPe .LI, Mississip. § 102. 7-1ions are preem71p) i law fro(the Farmm co Binpted by the Fells), wtitutihiocnh amal inendedfirmdeity tral Me. First, thhe Agriat Inscue ltFMIA uralpection Ac Maprketrevenints g t Actstates of 316 fro1 946 m i to estabmpId. at SecMarylosinlg anisahn a retail country ody lab. v.1( L4)eoui. linsig thanat is in adda, 451f orig U.S. 7initio lab25n toe (lin198 or g pro1)differen. gram fot thr “covan thoeredse req coummired bodyities,” i the FMIA, buncludingt mdoeat, es not (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 174 pp re ohrishibabit thle agricuId. at Sec21e UU.S. Cong.S.Cltu.. §1(ral co 62)7ress fro. 8 mmo(emphasimdities, seafo ens adactindedg add)o. d,itio andn apl laeanubelingts. requirements. Second, the Farm Bill in Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 51812 co njunction wiId. at SecIn21 co U.S.C. § 601ntthrast th. e ,1( tFMIA evh3)e. st(pat). ute apidenpeace a rs tcoom delprehineatense tivhe labeline appropgri schate emmeet fohod r counof latry of beling accorigin labordingeling to respectfully request that the Mississippi Department of Agriculture and Commerce (the 619 th declarations wh ether thAlthAnte mhwiougoeat is wrappnth resy J.h th Pipis ect to meat toznza Fotice ed oodowas apparenr un Prwrapod thuec extptse Cdtly poe oat thnrtp t. vhe timstedat. Wi th e one thscofede thnate si it is drDen al goDepartp’tveispmrnm layedofent Ae’s wegntri to occucul thbsite upitrepuees t an, 67blic. d mh6 F.e fiSee S.Baeli2dled and t 70o1d i .t ( h2m7e 367pl Cir. i eat dly Department) withdraw the proposed regulation. cor19preemSec. 8p2orat1() (pts 1)ue n. any furtpheaTheubldiqua lsheangher state d rtuaersopige onifofo sngovero t amhde peo compnrtominpeng opsedanidital actst reeris doictgivu colity inangturtion i b uo thsipsiis aren apnessniopan) irentn; a. MNa (See liytiossi denassiridl Broveipscussiopd i, we afriler Coomn Sectr be aeunlwoicil v. w) on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 21 th th nBill. (9o tice Cir. gi1v2994e1n U.S.C. § 610 t)o; th Arme pouur &blic. ( Co. v. Bc The Du). ae Proll, 46cess 8 F.Clau 2d 76se of t (6 Cirhe Fo. 1urteen972), certth Am. deen’nddm, 411ent of th U.S. 98e U.S. Con1 (1973s)titu; tion 2213 nGrocecessitates the prov ery MCO21a U.S.C. § 601nufacturersL Proposal, Sec. ision of A(n o)(1f mad4)erica v. ..equ ate nGerotice of reguace, 581 F. Supplatory pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 1423 topart pa orticipn otThiArmherate ins gour, tro ouruo, , a2lemn7dppe0s, aF. Su 755kars ting F.2pp,o wh be. at 945dich 993 de mri ve(a-42y sud d6. Cir. 19frombstan Sect85)tiallyi. on 1 alter th0816eir co of the nsFtituarmti Bonialllly pro. tected interests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemooooore re re re re October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 Page 4 Page 2 Page 3 Page 6 Page 5 th 655 15 Street, N.W. Washington, DC 20005-5701 regulation broadly defines m labeling. As the Mississippi law would imFMI conducts programHowever, as imported meat products are reeat as “the edibles in research, epose labeling that is in addition to and ducation, industry relations and public parts of the carcass of mquired to meet the samamme standards as als and their Tel: (202) 452-8444 7 24 affairs on behalf of its 2,300 m organs and glands.”domdifferent than the federal FMIA labeling reestically produced products, The proposal states that labels on member com the inherent impanquiremies — food retailers and wholesalers — in ents, the Mississippi requiremplication ofeat products m country of origin labeling ay declare the ents are Fax: (202) 429-4519 20 the United Sthat II. product to be of U.S. origin only if thexpressly preemimported mMississippi Country of Origtates and around the world. FMeat mpted by federal law.ay be adulterated or unsafe is false and in Meae anim I’s U.S. mal was exclusively born, raised and t Labeling Regulation Violates Suembers operate approximmisleading. To require false apremacy tely E-mail: fmi@fmi.org 8 26,000 retail food stores with a comslaughtered in the U.S.and misleading labeling clearly conflicts wiClause of U.S. Constitution Product that is blended of ibined annual sales volume ofth the federal laws’ prohibition against mported meat and Am $340 billion — three-erican meat Web site: www.fmi.org quarters of all food retail store sales in thmust be labeled as “Blend of Am misbranded products and, therefore, the MissMoreover, the fact that the Mississierican ae United States. FMI’s retail mnd imppi statute acknowledges the preemissippi country of origin mported meat from ‘the country where eeat labeling mbership is ptive 9 comproduced.’” regulation is preemnature of the FMIA at the outset by stating thposed ofArticle VI, Section 2 of the U.S. Cons The proposed regulations allow a retail large mpted by thulti-store chae federal laws by implication.ins, regionaat the requiremtitul firtion pms and independent super that “sells only Amrovides th ents only apply to the extent at, “the Constitution, and ermerican arkets. Its meat” 10 international mto display a single sign statithat they are “allowed bythe Laws of the United Sembership int the FMIA and aates . . . shall beng that fact, such as “only Amcludes 200 com the suprempplicable mpanies frome Law of the Land; and the Judges eat inspection regulations” cannot 60 cerican mountries. The Retail eat sold here.” Association of Mississip in every Ssave the Mississippi provisions fromThe recentate shall be bound thereby, any Thit passage of Section 10816 of the Farmpi represents a broad preemption. Wcross-section ofng in the Constitution or Laws of any State hether or not th Bill prov retail ides a second bstores that conduct e Mississippi statute asis for 15 the imbusiness in the state of Mississipp to the Contrary notwithstanding.”recognizes the preemplied preemThe draft reption of the Mississippi law.gulations prptive power of the federaovide somi. Under the so-called Suprem e flexibility wl statute is irrelevant; if the Suprem Specifically,ith respec state law is preemacy Claust to the labe, laws or elinpted if g that acy 16 October 30, 2002 Congress legislates com appears to exceed the scope of the underlyregulations that conflict with Clause applies, the state statute prehensively, that isfederal law are withwill be preeming statute. Specifically, COL Proposed , occupies an entirepted, even if it isout effect. As discussed m silent in this regard. And, field of regulation ore fully evidencing an intent to leave no room for thbelow, Mississipp Section 3(a) allows the country of origin laas the labeling requirements are preempted ini’s country of origin meat labeling rebeling informe states to supplem their entirety, none gulations and the underlying ation to beent federal law. Wof the statute is provided by mheansen of determstatute are preema label, stamI. “allowed by the FMIA.” ining whether Congress intended to Mississippi Country of Origp, mapted by Federal lawrk, placard or other ,in Mea both expressly and by implication. clear and visible sign on the “covered occupy the field, or whether a state law t Labeling Regulation 11 Ms. Julie McLemore conflicts with federal law, courts consider commodity” or on the package, display, holding unthe relationship between state and federal laws it, or bin containing the commodity 12 Director, Bureau of Regulatory Services as they are interpreted and applieat the f iA. Senate Bill 2367, which was signed by thB. nal point ofFMIA ExprLabeling Required under Country of Origin Meat Labeling sale. Nonetheless, if a placard essly Preempts Missd, not merely as they are written. e Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed igin Meat 13 Department of Agriculture and Commerce regulations require the sign to provision to the state statutes Labeling Regulation Regulation Is Preempted by Implication to require unprocessed mbe at least 8.5” x 14”, with a minimeat – whether fresh or frozen – to um of 1” lettering. PO Box 1609 be labeled with inform In this case, Section 108ation concerning the 16 of the Farmmeat’s country of origin “to the extent Bill, as supplemented by the country of Jackson, Mississippi 39215 origin labeling guidelines USDA recently pub allowed by the Federa The Mississippi country of origin mCOL ProposThe Federal Meat Ined Sec. 3(b) also provides thatl Meat Inspection Act (FMIspection Act andeat lisA) contains an express preemlabeling regulation is appliched, sets forth a com the retailer is not required to provide able federal m also preemeat inspecprehensive schption tion pted by eme any additional informfor country of origin labeling for an extremimregulations.” In particular, provision regarding product labeling. In releplication because the Mississippation on any “covered labeling on mi rule conflieat offeely broad range ofcomvant part, the provision states as followcts with federal law in sevred for samodity” that is already individually le in Mississipp products, including meral imi must bear portant eat. s: Re: Proposed Regulation To Support “Country of Origin Meat Labeling labeled for retail sale regarding country ofThe comrespects. First, the FMIA prohibits the sale, either (1) the nam“Marking, prelabelinghensive regue of the c, packaging or ingredient requiremlatoountry of origin preceded by the ry system, wh origin in a mich becamtransport, offer for salee effective upon the recenents . . . anner that comwords “Product of” or (2) one in addition to, or different or transportation, or plies with COL t passage 14 17 Law” ofProposed Sec. 2.of the following designations threceipt for transportation in commthan the Farm, those m Bill, inade under this chapter m cludes the deveat are specified in the serclopmea of ay ent ofnot be imposed by any State . . ..”ny m federal gueat products that are mtatuidelinte: “Imes, a perported,” “Amiiod during whicsbranded at the “Labelingerican,” or h ” 1 the programis defined under the FMIA as “all labels “Blend” of imported and Amtime of such sale, transportation, offer fo can be implemented without peerican meats.and other written, printed or graphic mr sale or transportation, or receipt for The statemnalties, and, ultiment must appear oately, a system of n the immatter ediate 21 Dear Ms. McLemore, m(1) upon anywrapping or container of the mtranspoandatory country of origin labeling.rtation. article o A product will br any of its containers oeat unless the e con Accordingly, the Farmsidered “mrm wrappers, or (2eat is displayed unwrapped, in which case isbranded” if its lab Bill ev) accomidences peling isanying such false or 18 22 2 mCongressional intent tothe statemarticle.isleading in any particular.” ent may appear on a sign included with the display. occupy the field of country of origin m Prepared meat labeling regulation, eat products Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consumthereby im pliedly preempting statption on the premises and “fully cooked me laws of this nature, incleat as defined by the U.S. uding the Mississippi Country 3 Food Establishments,” the purpose of this letter is to offer comments from the Food Departmof Origin Meat Labeling Law. The country of origin labeling that As the federal statute prohibits statesent of Agriculture” are specifically exempted fromw fromould be required imposing any labeling requirem the scope of the law.under Mississippi law ents Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ fromimplies that the im or add to the federal requireported meat products are ofments lesser quality or present som, the clause preempts even those se health risk. tate regulation proposed by the Mississippi Department of Agriculture and Commerce to II. regulations that are mOne court noted that country of origin labeliCountry of OrigEach violation of the statute is puniore striin Meangent than the FMIA. Accordt Labeling Regushable by civil penalties of up to $500.00; ng can be designed to mlation Violates Commerce Clause of ingly, courts have found state ake a consumer “feel 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law labeling requiremeach day on which a violation occurs is considthat the product was something to be shunned, U.S. Constitution ents to be preempted not only when they directly conflict with the ered a separate offeas a matter either ofnse under the s stimulated reaction tatute. (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed federal labeling requiremagainsThe Mississippi Departmt it from its labeling, or ofeent, mnt of Agricultuaking it im uncertaintyre and Commpo as to what mssible to comerce is charged with the ipght be the imly with both, but also in plications 23 regulation on the grounds that, among other things, it is an unconstitutional exercise of circumthereof.”administration and enforcemstances in which a state attemArtic Although domestic product le I, Section 8 ofent of the Act and the U.S. Constitution enumerates the popts to will also benact a requiremdirected to ade subject to labeling, it ment thatopt the has no counterpart rules and regulations wers expresay be sly Neither the memorandum nor the draft regulations indicate the proposed codification of the 19 5 power in violation of several provisions of the United States Constitution, including the delegated to Congress. In relevant part, thaccomunder federal law.necessary for the Departmplished by a placard or with th ent to carry out the Act.e more fae Commmiliar sound erce Clause of Sing “Amection 8 provides that erican” or “Product of regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; “the Congress shall have Power . . . [t]o USA;” in contrast, the “imported” labeling regulate Commmay raise consumerce with er concerns regarding the foreign Nations, and Proposal.” 7 25 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the amsafety of the product. ong the several States . . ..”The Mississippi country of origin mToward this end, on October 1, 2002, In addition to the direct greatthe Departm labeling regulations went issued a mant of authorityould require emorandum to Congress, 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. the Commerce Clause has long been recognized addressed to “All Retail Food Esretailers either to label meat produtablishmcts or to post a sign accoments” with a proposed to limit the power of states to erect panying the p regulation interpreting the roducts 9 COL Propo26sal, Sec. 2(c). 6 barriers to trade.law and authdeclaring the products’ country of origin or orizing comm Thus, under the so-called “dorments to be submitted until October 30, 2002.whether the products were produced in the ant Commerce Clause,” states are The proposed 10 COL Proposal, Sec. 4. In this regard, please see the enclosed letter from the U.S. Department of prohibited from11United States, a “foreign country,” or both. imposing regulatory measures that are designed to benefit in-state The FMIA does not require country of origin “Covered commodity” is not a term of art used either in the Mississippi statute or draft 27 201 Agriculture (USDA), in which the Agency concludes that a substantially similar economic interests by burdening foreign or out-of-state competitors. reg ulationsS.B. Note, too, t. T2h367is pr, Sec. 1(1ovihat sithe receon a)ppea. nt rpasss to age be taof the cken directountrlyy o fromf or Sectigini labon 1elin08g pro61 ofg trhaem in Farm Section Securi 10ty and816 of Ru tralhe 215 FarmInLouisiana statute and regulat vest BilmelId. U.Snt d Actoe. Const.s no oft sav 20 art02e ( th. VPe .LI, Mississip. § 102. 7-1ions are preem71p) i law fro(the Farmm co Binpted by the Fells), wtitutihiocnh amal inendedfirmdeity tral Me. First, thhe Agriat Inscue ltFMIA uralpection Ac Maprketrevenints g t Actstates of 316 fro1 946 m i to estabmpId. at SecMarylosinlg anisahn a retail country ody lab. v.1( L4)eoui. linsig thanat is in adda, 451f orig U.S. 7initio lab25n toe (lin198 or g pro1)differen. gram fot thr “covan thoeredse req coummired bodyities,” i the FMIA, buncludingt mdoeat, es not (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 174 pp re ohrishibabit thle agricuId. at Sec21e UU.S. Cong.S.Cltu.. §1(ral co 62)7ress fro. 8 mmo(emphasimdities, seafo ens adactindedg add)o. d,itio andn apl laeanubelingts. requirements. Second, the Farm Bill in Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 51812 co njunction wiId. at SecIn21 co U.S.C. § 601ntthrast th. e ,1( tFMIA evh3)e. st(pat). ute apidenpeace a rs tcoom delprehineatense tivhe labeline appropgri schate emmeet fohod r counof latry of beling accorigin labordingeling to respectfully request that the Mississippi Department of Agriculture and Commerce (the 19624 th declarations wh ether thAlthSee Ante mhwi21ougoeat is wrappnth res Uy J.h th.S.C. § Pipis ect to meat toznza Fo 6tice e20(d oodowas apparena)r un Pr. wrapod thuec extptse Cdtly poe oat thnrtp t. vhe timstedat. Wi th e one thscofede thnate si it is drDen al goDepartp’tveispmrnm layedofent Ae’s wegntri to occucul thbsite upitrepuees t an, 67blic. d mh6 F.e fiSee S.Baeli2dled and t 70o1d i .t ( h2m7e 367pl Cir. i eat dly 25 Department) withdraw the proposed regulation. cor19preemSec. 8p2orat1() (pts 1)ue nU.S. any furtpheaTheubl. Const.diqua lsheangher state d rtuaersopi, age ornit. I,fofo sngover § 8. o t amhde peo compnrtominpeng opsedanidital actst reeris doictgivu colity inangturtion i b uo thsipsiis aren apnessniopan) irentn; a. MNa (See liytiossi denassiridl Broveipscussiopd i, we afriler Coomn Sectr be aeunlwoicil v. w) on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 2126 th th nBill. (9o tice Cir. gi1v2H994e1ughn U.S.C. § 610 t)o;es v. th Arme pOouur &kblalic. hom( Co. v. Bc The Du). a, 441 U.ae Proll, 46S. 33cess 8 F.2,Clau 23d2 766 (1se of t (9679 Cirh);e Fo H.P.. 1urteen972 Ho), ocerttdh & Am. de Soens,n’ndd Im, 411nenc. t of thv. D U.S. 98ue MU.S. Conond1 (19, 3376 U.S3s)titu; tio. n 1322 n52Grocecessitates the prov 5 (ery M1949);CO21a U.S.C. § 601 nufacturersWL Preltopoon v.sal, Sec. ision Mi of A(nss oou)(1f mad4ri)erica v. ..equ, 91a Ute .S. 2nGerotice of regu75 ace(1, 581873 F. Supp).lato ry pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 231427 topart pa orticipn otThiSeeArmherate in, s gour, te.rog. ouruo, , , a2lemnBacc7dppe0s, aF. Su 755khusars ting F.2 Ipp,o mwh be. at 945portdich 993 des mri, Lt ve(a-42y sud.,d d6. Cir. 19fr v. ombstanDi Sectas85)tially, 46i. on 1 8 alter thU0.S. 26816eir co of3 t(1h984e nsFtitua). rmti Bonialllly pro. tected interests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemoooooore re re re re re October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 Page 3 Page 2 Page 6 Page 7 Page 4 Page 5 th 655 15 Street, N.W. Washington, DC 20005-5701 regulation broadly defines mlabeling. As the Mississippi law would imHowever, as imFMI conducts programThe Supreme Court has adopted what ported meat products are reeat as “the edibles in research, epose labeling that is in addition to and ducation, industry relations and public am parts of the carcass of mounts to a two-tiered approach to quired to meet the samamme standards as als and their Tel: (202) 452-8444 7 24 28 affairs on behalf of its 2,300 m organs and glands.”domdifferent than the federal FMIA labeling reanalyzing state economestically produced products, The proposal states that labels on mic regulation under the Cember com the inherent impanquiremies — food retailers and wholesalers — in omments, the Mississippi requiremplication oferce Clause.eat products m country of origin labeling Whaen a state statuy declare the ents are te Fax: (202) 429-4519 20 the United SII. that direcproduct to be of U.S. origin only if thexpressly preemimtly reguported mMississippi Country of Origtlateates and around the world. FMeat mpted by federal law.s or discray be aduliminates agaterated or unsafe is false and in Meae anim inst inI’s U.S. mal was exclusively born, raised and tet Larstate commbeling Regulation Violates Suemberce, or when its effect is to ers operate approximmisleading. To require false apremacy tely E-mail: fmi@fmi.org 8 26,000 retail food stores with a comfavor in-state economslaughtered in the U.S.and misleading labeling clearly conflicts wiClause of U.S. Constitution ic interests over out-of-stat Product that is blended of ibined annual sales volume ofth the federal laws’ prohibition against e interests, the Court mported meat and Am $340 billion — three-has generally struck erican meat Web site: www.fmi.org 29 down the statute witquarters of all food retail store sales in thmust be labeled as “Blend of Am misbranded products and, therefore, the MissMoreover, the fact that the Mississihout further inquiry.erican ae United States. FMI’s retail mnd im Wppi statute acknowledges the preemissippi country of origin mhen, however, a statute has only indirect ported meat from ‘the country where eeat labeling mbership is ptive 9 comproduced.’” effects on inregulation is preemnature of the FMIA at the outset by stating thposed ofArticle VI, Section 2 of the U.S. Consters The proposed regulations allow a retail large mtate commpted by thulti-storerce and regulate chae federal laws by implication.ins, regionaes evenhandedly, the Court has examat the requiremtitul firtion pms and independent super that “sells only Amrovides th ents only apply to the extent at, “the Constitution, and ermerican arkets. Its ined meat” 10 international mto display a single sign statiwhether ththat they are “allowed bythe Laws of the United Se Stateem’s inbership interest is legt the FMIA and aates . . . shall beng that fact, such as “only Amcludes 200 comitimate and whether the bu the suprempplicable mpanies frome Law of the Land; and the Judges eat inspection regulations” cannot 60 cerican mrdountries. The Retail en on inteeat sold here.”rstate comm erce 30 Association of Mississip clearly exceeds the local benefits.in every Ssave the Mississippi provisions fromThe recentate shall be bound thereby, any Thit passage of Section 10816 of the Farmpi represents a broad There is, how preemption. Wcross-section ofng in the Constitution or Laws of any State ever, “no clear line” separating the hether or not th Bill prov retail ides a second bstores that conduct e Mississippi statute asis for 15 the imbusiness in the state of Mississippcatego recognizes the preemto the Contrary notwithstanding.”plied preemries oThe draff state regulat reption of the Mississippi law.gulations prptive power of the federation that are virtually ovide somi. Under the so-called Suprem e flexibility wl statute is irrelevant; if the Supremp Specifically,er se invalid under the Cith respec state law is preemacy Claust to the labomme, laws or elinerce Clause pted if g that acy 16 October 30, 2002 Congress legislates com appears to exceed the scope of the underlyand those that are subject to the regulations that conflict with Clause applies, the state statute prehensively, that isfederal law are withwill be preembalancing approach set forth in ing statute. Specifically, COL Proposed , occupies an entirepted, even if it isout effect. As discussed m silent in this regard. And, field of regulation Pike v. Bruce Churchore fully ; evidencing an intent to leave no room for thbelow, MississippratheSection 3(a) allows the country of origin la as the labeling requirements are preempted inr the critical consi’s couidenrtry ation is the oveof origin meat labeling rerall effect of the stbeling informe states to supplem their entirety, none gulations and the underlying ation to beatute on both local and ent federal law. Wof the statute is provided by mheansen of 31 determstatute are preema label, stamI. inte“allowed by the FMIA.” rstaining whether Congress intended to te acMississippi Country of Origtivity.p, mapted by Federal lawrk, placard or other In this case, regard,in Mea both expressly and by implication. clear and visible sign on the “covered less ofoccupy the field, or whether a state law t Labeling Regulation the test that is applied, the Mis sissippi 11 Ms. Julie McLemore conflicts with federal law, courts consider statucommodity” te does not pass con or on the package, display, holding unstitutional muster. the relationship between state and federal laws it, or bin containing the commodity 12 Director, Bureau of Regulatory Services as they are interpreted and applieat the f iA. Senate Bill 2367, which was signed by thB. nal point ofFMIA ExprLabeling Required under Country of Origin Meat Labeling sale. Nonetheless, if a placard essly Preempts Missd, not merely as they are written. e Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed igin Meat 13 Department of Agriculture and Commerce regulations require the sign to provision to the state statutes A. Labeling Regulation Regulation Is Preempted by Implication Mississippi Lawto require unprocessed mbe at least 8.5” x 14”, with a minim Discriminates Against Non-Domestically Produced eat – whether fresh or frozen – to um of 1” lettering. PO Box 1609 be labeled with inform In this case, Section 108Meat Prodation concerning the ucts 16 of the Farmmeat’s country of origin “to the extent Bill, as supplemented by the country of Jackson, Mississippi 39215 origin labeling guidelines USDA recently pub allowed by the Federa The Mississippi country of origin mCOL ProposThe Federal Meat Ined Sec. 3(b) also provides thatl Meat Inspection Act (FMIspection Act andeat lisA) contains an express preemlabeling regulation is appliched, sets forth a com the retailer is not required to provide able federal m also preemeat inspecprehensive schption tion pted by eme for country of origin labeling for an extremany additional informimregulations.” In particular, provision regarding product labeling. In releplication because the MississippAs discussed mation on any “covered ore fully above, the Milabeling on mi rule conflieat offeely broad range ofcomvant part, the provision states as followssissippi statute and cts with federal law in sevred for samodity” that is already individually le in Mississipp products, including mregulations require eral imi must bear portant eat. s: Re: Proposed Regulation To Support “Country of Origin Meat Labeling labeled for retail sale regarding country ofThe comrespects. First, the FMIA prohibits the sale, either (1) the namm“Marking, eat to be labeled with either a statemprelabelinghensive regue of the c, packaging or ingredient requiremlatoountry of origin preceded by the ry system, whent of the product’s count origin in a mich becamtransport, offer for salee effective upon the recenents . . . anner that comwords “Product of” or (2) one in addition to, or different ry of origin or a or transportation, or plies with COL t passage 14 17 Law” ofProposed Sec. 2.of the following designations threceipt for transportation in commstatemthan the Farm, those ment that the p Bill, inade under this chapter m cluderoduct is ons the devee of the foat are specified in the serclopmea of ay ent ofnot be imposed by any State . . ..”llowing: “Amny m federal gueat products that are mteatuidelinrican,” “Imte: “Imes, a perported,” “Amported,” or “Blend of iiod during whicsbranded at the “Labelingerican,” or h ” 32 1 the programis defined under the FMIA as “all labels “Blend” of imported and AmtimImported and Ame of such sale, transportation, offer fo can be imerican Meats.”plemented without peerican m Although labeling is required for domeats.and other written, printed or graphic mr sale or transportation, or receipt for The statemnalties, and, ultiment must appear oately, a system of nestically the immatter ediate 21 Dear Ms. McLemore, m(1) upon anywrapping or container of the mproduced meats as well as imtranspoandatory country of origin labeling.rtation. article o A product will br any of its containers oported products, eat unless the e con Accordingly, the Farmsidered “mrm wrappers, or (2the type of labeling eat is displayed unwrapped, in which case isbranded” if its lab Bill ev) accomrequired inherently idences peling isanying such false or 18 22 2 Congressional intent tomthe statemarticle.discrimisleading in any particular.”inates against m ent may appear on a sign included with the display. occupy the field of country of eats produced in c ountries other than the United States. origin m Prepared meat labeling regulation, eat products Following up on your October 1, 2002, memorandum addressed to “All Retail thereby imsold for consum pliedly preempting statption on the premises and “fully cooked me laws of this nature, incleat as defined by the U.S. uding the Mississippi Country 3 Food Establishments,” the purpose of this letter is to offer comments from the Food Departmof Origin Meat Labeling Law. As the federal statute prohibits statesThe country of origin labeling that Specifically,ent of Agricultu domre” are specificaestically produced mlly exempted fromw fromould be required eats immust be labeled in one of two ways, posing any labeling requirem the scope of the law.under Mississippi law ents Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ fromboth of which identify the specific country ofimplies that the im or add to the federal requireported meat products are ofm origin, naments lesser quality or present som, the clause preemely, “Product of the USA” or pts even those se health risk. tate regulation proposed by the Mississippi Department of Agriculture and Commerce to II. regulations that are m“AmOne court noted that country of origin labelierican.” In contrast, mCountry of OrigEach violation of the statute is puniore striin Meaeats produced in ngent than the FMIA. Accordt Labeling Regushable by civil penalties of up to $500.00; ng can be designed to mcountries other than the United States mlation Violates Commerce Clause of ingly, courts have found state ake a consumer “feel ay 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law either be identified as “Product of [specifilabeling requiremeach day on which a violation occurs is considthat the product was something to be shunned, U.S. Constitution ents to be preempted not onlc country]” or with a generic “Imy when they directly conflict with the ered a separate offeas a matter either ofnse under the s stimulated reaction ported” tatute. (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed designation. The fact that mfederal labeling requiremagainsThe Mississippi Departmt it from its labeling, or ofeent, mnt of Agricultueats produced in aking it im uncertaintyre and Commpo as to what mssible to comcountries other than the United States merce is charged with the ipght be the imly with both, but also in plications ay 23 regulation on the grounds that, among other things, it is an unconstitutional exercise of circumbe identified with only a generic statemthereof.”administration and enforcemstances in which a state attemArtic Although domestic product le I, Section 8 ofent of the Act and the U.S. Constitution enumerates the popts to enwill also bt of their non-domenact a requiremdirected to ade subject to labeling, it meestic origin while domnt thatopt the has no counterpart rules and regulations wers expresay be sly estic Neither the memorandum nor the draft regulations indicate the proposed codification of the 19 5 power in violation of several provisions of the United States Constitution, including the delegated to Congress. In relevant part, thaccomunder federal law.products mnecessary for the Departmplished by a placard or with thust be identified as “Product of ent to carry out the Act.e more fae Commthe USA” or “Ammiliar sound erce Clause of Singerican” evidences an intent “Amection 8 provides that erican” or “Product of regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; “the Congress shall have Power . . . [t]o USA;” in contrast, the “imported” labeling to discrim inate against foreign commerce. regulate Commmay raise consumerce with er concerns regarding the foreign Nations, and Proposal.” 7 25 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the amsafety of the product. ong the several States . . ..” The Mississippi country of origin mToward this end, on October 1, 2002, In addition to the direct greatthe Departm labeling regulations went issued a mant of authorityould require emorandum to Congress, 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. the Commerce Clause has long been recognized addressed to “All Retail Food Esretailers eithMoreover, the regulations favor domer to label meat produtablishmcts or to post a sign accoments” with a proposedestic to limproducts by providing retailers with a it the power of states to erect panying the p regulation interpreting the roducts 9 COL Propo26sal, Sec. 2(c). 6 barriers to trade.regulatory incentive not to offer imlaw and authdeclaring the products’ country of origin or orizing comm Thus, under the so-called “dorments to be submported mitted until October 30, 2002.whether the products were produced in the eats to customant Commerce Clause,” states are ers. Specifically, the The proposed 10 COL Proposal, Sec. 4. In this regard, please see the enclosed letter from the U.S. Department of regulations allow retailers who offer only 11prohibited fromUnited States, a “foreign country,” or both. imposing regulatory measures that are designed to benefit in-state domThe FMIA does not require country of origin estically produced meats to avoid the “Covered commodity” is not a term of art used either in the Mississippi statute or draft 27 120 Agriculture (USDA), in which the Agency concludes that a substantially similar economregulation’s on-pack label requiremic interests by burdening foreign or out-of-state coment and post a placard averring that thpetitors. e establishment reg ulationsS.B. Note, too, t. T2h367is pr, Sec. 1(1ovihat sithe receon a)ppea. nt rpasss to age be taof the cken directountrlyy o fromf or Sectigini labon 1elin08g pro61 ofg trhaem in Farm Section Securi 10ty and816 of Ru tralhe 152 33 FarmInLouisiana statute and regulat vest BilmelId. U.Snt d Actoe. Const.s no oft sav 20 art02e ( th. VPe .LI, Mississip. § 102. 7-1ions are preem71p) i law fro(the Farmm co Binpted by the Fells), wtitutihiocnh amal inendedfirmdeity tral Me. First, thhe Agriat Inscue ltFMIA uralpection Ac Maprketrevenints g t Actstates of sells on ly American meat. Although the placard requirement is itself an 316 fro1 946 m i to estabmpId. at SecMarylosinlg anisahn a retail country ody lab. v.1( L4)eoui. linsig thanat is in adda, 451f orig U.S. 7initio lab25n toe (lin198 or g pro1)differen. gram fot thr “covan thoeredse req coummired bodyities,” i the FMIA, buncludingt mdoeat, es not (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 174 pp re ohrishibabit thle agricuId. at Sec21e UU.S. Cong.S.Cltu.. §1(ral co 62)7ress fro. 8 mmo(emphasimdities, seafo ens adactin dedg add)o. d,itio andn apl laeanubelingts. requirements. Second, the Farm Bill in Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 5181228 co njunction wiId. at SecIn2Bro1 co U.S.C. § 601wntnth-rastFo th. rmane ,1( tFMIA evh3)e. st (pDistillers v. at). ute apidenpeace a NY Liquors tcoom delprehinr Aueatense ttivhh., e labeline a476pp Urop.gS. 5ri schat7e e3mm (e198et fohod 6)r coun. o f latry of beling accorigin labordingeling to respectfully request that the Mississippi Department of Agriculture and Commerce (the 2924619 th declarations wh ether thAlthSee IdAnte m. athwi21ougo eat is wrapp57nth res Uy J.h th9. .S.C. § Pipis ect to meat toznza Fo 6tice e20(d oodowas apparena)r un Pr. wrapod thuec extptse Cdtly poe oat thnrtp t. vhe timstedat. Wi th e one thscofede thnate si it is drDen al goDepartp’tveispmrnm layedofent Ae’s wegntri to occucul thbsite upitrepuees t an, 67blic. d mh6 F.e fiSee S.Baeli2dled and t 70o1d i .t ( h2m7e 367pl Cir. i eat dly 2530 Department) withdraw the proposed regulation. cor19preemSec. 8p2orat1() (pts 1)ue nU.SId. any furtpheaTheubl. at. Const.d i57qua lsheang9,her state d rt ciuaersopi, atge i orng nit. I,fofo sPike vngover § 8. o t amhde peo comp.nr Brtominpeng uceopsedanidital act Church, st reeris doictgivu colity inangturtiIncon i b uo th., 3sipsiis aren apnessn9io7pan) U irentn;. a. S. 13 MNa (See liytiossi de7 nassi(1ridl Broveip970scussiopd i, we a). friler Coom n Sectr be aeunlwoicil v. w) on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 212631 th th nBill. (9o tice Cir. gi1v2HBrow994e1ughn U.S.C. § 610 t)o;n-Fes v. th Arme oprOomauur &kblalic. nhom, (47 Co. v. Bc The Du).6 US at a, 441 U.ae Proll57, 46S. 339. cess 8 F. 2,Clau 23d2 766 (1se of t (9679 Cirh);e Fo H.P.. 1urteen972 Ho), ocerttdh & Am. de Soens,n’ndd Im, 411nenc. t of thv. D U.S. 98ue MU.S. Conond1 (19, 3376 U.S3s)titu; tio. n 132232 n52Grocecessitates the prov 5 (ery M1949);COCO21a U.S.C. § 601 nufacturersWL PrL Preltopoopoon v.sal, Sec. sal, Sec. ision Mi of A(nss oou)(1f mad42ri)erica v. ...equ, 91a Ute .S. 2nGerotice of regu75 ace(1, 581873 F. Supp).lato ry pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 23143327 topart pa orticipn otThiCOSeeArmherate in, L Prs gour, te.rog. ouruo, opo, , a2lemnBacc7dppe0sal, Sec. s, aF. Su 755khusars ting F.2 Ipp,o mwh be4. at 945port.d ich 993 des mri, Lt ve(a-42y sud.,d d6. Cir. 19fr v. ombstanDi Sectas85)tially, 46i. on 1 8 alter thU0.S. 26816eir co of3 t(1h984e nsFtitua). rmti Bonialllly pro. tected interests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemooooooore re re re re re re October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 Page 7 Page 5 Page 8 Page 2 Page 6 Page 3 Page 4 th 655 15 Street, N.W. Washington, DC 20005-5701 regulation broadly defines m labeling. As the Mississippi law would imunconstitutional burden on commerce (see di However, as imFMI conducts programThe Supreme Court has adopted what ported meat products are reeat as “the edibles in research, epose labeling that is in addition to and scussion below), the fact that the ducation, industry relations and public am parts of the carcass of mounts to a two-tiered approach to quired to meet the samamme standards as als and their Tel: (202) 452-8444 7 24 28 affairs on behalf of its 2,300 m domDepartmorgans and glands.”different than the federal FMIA labeling reanalyzing state economestically produced products,ent has chosen to offer this slightly The proposal states that labels on mic regulation under the Cember com the inherent impanquirem leies — food retailers and wholesalers — in ss bommuents, the Mississippi requiremplication ofrdensomerce Clause.eat products me alte country of origin labeling rnative to reta Whaen a state statuy declare the ileents are rs whto e Fax: (202) 429-4519 20 the United SII. that have “purged” their stores of improduct to be of U.S. origin only if thdirecexpressly preemimtly reguported mMississippi Country of Origtlateates and around the world. FMeat mpted by federal law.s or discray be aduliminates agaterated or unsafe is false and ported in Meae anim inst inmeats and only offer “AmI’s U.S. mal was exclusively born, raised and tet Larstate commbeling Regulation Violates Suemberce, or when its effect is to ers operate approximmisleading. To require false erican” products is apremacy tely E-mail: fmi@fmi.org 8 26,000 retail food stores with a comfurther evfavor in-state economand mslaughtered in the U.S.isleading labeling clearly conflicts wiClause of U.S. Constitution idence of the discrimic interests over out-of-stat Product that is blended of iinatorybined a intent underlying the regulations. nnual sales volume ofth the federal laws’ prohibition against e interests, the Court mported meat and Am $340 billion — three-has generally struck erican meat Web site: www.fmi.org 29 down the statute witquarters of all food retail store sales in thmust be labeled as “Blend of Am misbranded products and, therefore, the MissMoreover, the fact that the Mississihout further inquiry.erican ae United States. FMI’s retail mnd im Wppi statute acknowledges the preemissippi country of origin mhen, however, a statute has only indirect ported meat from ‘the country where eeat labeling mbership is ptive 9 comproduced.’” effects on inregulation is preemnature of the FMIA at the outset by stating thposed ofB. Article VI, Section 2 of the U.S. Consters The proposed regulations allow a retail large mMississippi Lacks Legitimate Interetate commpted by thulti-storerce and regulate chae federal laws by implication.ins, regionaes evenhandedly, the Court has examat the requiremtitul firtion pms and independent super that “sells only Amst in Country of Origin Labeling rovides th ents only apply to the extent at, “the Constitution, and ermerican arkets. Its ined meat” 10 international mto display a single sign statiwhether ththat they are “allowed bythe Laws of the United Se StateRegulations em’s inbership interest is legt the FMIA and aates . . . shall beng that fact, such as “only Amcludes 200 comitimate and whether the bu the suprempplicable mpanies frome Law of the Land; and the Judges eat inspection regulations” cannot 60 cerican mrdountries. The Retail en on inteeat sold here.”rstate comm erce 30 Association of Mississip clearly exceeds the local benefits.in every Ssave the Mississippi provisions fromThe recentate shall be bound thereby, any Thit passage of Section 10816 of the Farmpi represents a broad There is, how preemption. Wcross-section ofng in the Constitution or Laws of any State ever, “no clear line” separating the hether or not th Bill prov retail ides a second bstores that conduct e Mississippi statute asis for 15 the imbusiness in the state of Mississippcatego recognizes the preemto the Contrary notwithstanding.”plied preemries oThe draff state regulat reption of the Mississippi law.gulations prptive power of the federation that are virtually ovide somi. Under the so-called Suprem e flexibility wl statute is irrelevant; if the Supremp Specifically,er se invalid under the Cith respec state law is preemacy Claust to the labomme, laws or elinerce Clause pted if g that acy For a state law or regulation that impacts interstate or foreign commerce to 16 October 30, 2002 Congress legislates comand those that are subject to the appears to exceed the scope of the underly regulations that conflict with Clause applies, the state statute prehensively, that isfederal law are withwill be preembalancing approach set forth in ing statute. Specifically, COL Proposed , occupies an entirepted, even if it isout effect. As discussed m silent in this regard. And, field of regulation Pike v. Bruce Churchore fully ; withstand constitutional scrutiny, the state must have and must have articulated a evidencing an intent to leave no room for thbelow, Mississipprathe Section 3(a) allows the country of origin laas the labeling requirements are preempted inr the critical consi’s couidenrtry ation is the oveof origin meat labeling rerall effect of the stbeling informe states to supplem their entirety, none gulations and the underlying ation to beatute on both local and ent federal law. Wof the statute is provided by mheansen of legitimate interest in enacting the restriction. For example, a state generally has the 31 determstatute are preema label, staminteI. “allowed by the FMIA.” rstaining whether Congress intended to te acMississippi Country of Origtivity.p, mapted by Federal lawrk, placard or other In this case, regard,in Mea both expressly and by implication. clear and visible sign on the “covered less ofoccupy the field, or whether a state law t Labeling Regulation the test that is applied, the Mis sissippi authority to implement non-discriminatory legislation to protect the health, safety or 11 Ms. Julie McLemore conflicts with federal law, courts consider statucommodity” te does not pass con or on the package, display, holding unstitutional muster. the relationship between state and federal laws it, or bin containing the commodity welfare of its citizens, provided that the burden on interstate or foreign commerce does 12 Director, Bureau of Regulatory Services as they are interpreted and applieat the f iA. Senate Bill 2367, which was signed by thB. nal point ofFMIA ExprLabeling Required under Country of Origin Meat Labeling sale. Nonetheless, if a placard essly Preempts Missd, not m34 erely as they are written. e Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed igin Meat not clearly exceed the local benefits. In this case, however, Mississippi has not 13 Department of Agriculture and Commerce regulations require the sign to provision to the state statutes A. Labeling Regulation Regulation Is Preempted by Implication Mississippi Lawto require unprocessed mbe at least 8.5” x 14”, with a minim Discriminates Against Non-Domestically Produced eat – whether fresh or frozen – to um of 1” lettering. expressed the basis for its interest in the state statute or regulations. We were unable to PO Box 1609 be labeled with inform In this case, Section 108Meat Prodation concerning the ucts 16 of the Farmmeat’s country of origin “to the extent Bill, as supplemented by the country of locate any legislative history on the underlying statute and the draft regulations were not Jackson, Mississippi 39215 origin labeling guidelines USDA recently pub allowed by the Federa The Mississippi country of origin mCOL ProposThe Federal Meat Ined Sec. 3(b) also provides thatl Meat Inspection Act (FMIspection Act andeat lisA) contains an express preemlabeling regulation is appliched, sets forth a com the retailer is not required to provide able federal m also preemeat inspecprehensive schption tion pted by eme accompanied by a preamble that in any way explained the state’s interest in the country any additional informfor country of origin labeling for an extremimregulations.” In particular, provision regarding product labeling. In releplication because the MississippAs discussed mation on any “covered ore fully above, the Milabeling on mi rule conflieat offeely broad range ofcomvant part, the provision states as followssissippi statute and cts with federal law in sevred for samodity” that is already individually le in Mississipp products, including mregulations require eral imi must bear portant eat. s: of origin meat labeling regulations. Re: Proposed Regulation To Support “Country of Origin Meat Labeling labeled for retail sale regarding country ofThe comrespects. First, the FMIA prohibits the sale, either (1) the namm“Marking, eat to be labeled with either a statemprelabelinghensive regue of the c, packaging or ingredient requiremlatoountry of origin preceded by the ry system, whent of the product’s count origin in a mich becamtransport, offer for salee effective upon the recenents . . . anner that comwords “Product of” or (2) one in addition to, or different ry of origin or a or transportation, or plies with COL t passage 14 17 Law” Proposed Sec. 2.ofof the following designations threceipt for transportation in commstatemthan the Farm, those ment that the p Bill, inade under this chapter m cluderoduct is ons the devee of the foat are specified in the serclopmea of ay ent ofnot be imposed by any State . . ..”llowing: “Amny m federal gueat products that are mteatuidelinrican,” “Imte: “Imes, a perported,” “Amported,” or “Blend of iiod during whicsbranded at the “Labelingerican,” or h ” In the absence of an expressly declared interest, the state cannot be presumed to 32 1 the programis defined under the FMIA as “all labels “Blend” of imported and AmtimImported and Ame of such sale, transportation, offer fo can be imerican Meats.”plemented without peerican m Although labeling is required for domeats.and other written, printed or graphic mr sale or transportation, or receipt for The statemnalties, and, ultiment must appear oately, a system of nestically the immatter ediate have a legitimate interest. Indeed, the state’s true motive for enacting country of origin 21 Dear Ms. McLemore, mwrapping or container of the m(1) upon anyproduced meats as well as imtranspoandatory country of origin labeling.rtation. article o A product will br any of its containers oported products, eat unless the e con Accordingly, the Farmsidered “mrm wrappers, or (2the type of labeling eat is displayed unwrapped, in which case isbranded” if its lab Bill ev) accomrequired inherently idences peling isanying such false or meat labeling legislation and promulgating the accompanying regulations is likely to be 18 22 2 mCongressional intent tothe statemdiscrimarticle.isleading in any particular.”inates against m ent may appear on a sign included with the display. occupy the field of country of eats produced in c ountries other than the United States. origin m Prepared meat labeling regulation, eat products economic protectionism. Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consumthereby im pliedly preempting statption on the premises and “fully cooked me laws of this nature, incleat as defined by the U.S. uding the Mississippi Country 3 Food Establishments,” the purpose of this letter is to offer comments from the Food Departmof Origin Meat Labeling Law. As the federal statute prohibits statesThe country of origin labeling that Specifically,ent of Agricultu domre” are specificaestically produced mlly exempted fromw fromould be required eats immust be labeled in one of two ways, posing any labeling requirem the scope of the law.under Mississippi law ents C. Country of Origin Meat Labeling Regulation Unduly Burdens Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ fromboth of which identify the specific country ofimplies that the im or add to the federal requireported meat products are ofm origin, naments lesser quality or present som, the clause preemely, “Product of the USA” or pts even those se health risk. tate Interstate Commerce regulation proposed by the Mississippi Department of Agriculture and Commerce to II. regulations that are m“AmOne court noted that country of origin labelierican.” In contrast, mCountry of OrigEach violation of the statute is puniore striin Meaeats produced in ngent than the FMIA. Accordt Labeling Regushable by civil penalties of up to $500.00; ng can be designed to mcountries other than the United States mlation Violates Commerce Clause of ingly, courts have found state ake a consumer “feel ay 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law labeling requiremeither be identified as “Product of [specifieach day on which a violation occurs is considthat the product was something to be shunned, U.S. Constitution ents to be preempted not onlc country]” or with a generic “Imy when they directly conflict with the ered a separate offeas a matter either ofnse under the s stimulated reaction ported” tatute. In addition to the foregoing, courts generally consider the impact of the state (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed federal labeling requiremdesignation. The fact that magainsThe Mississippi Departmt it from its labeling, or ofeent, mnt of Agricultueats produced in aking it im uncertaintyre and Commpo as to what mssible to comcountries other than the United States merce is charged with the ipght be the imly with both, but also in plications ay restriction on interstate or foreign commerce when conducting an inquiry under the 23 regulation on the grounds that, among other things, it is an unconstitutional exercise of circumbe identified with only a generic statemthereof.”administration and enforcemstances in which a state attemArtic Although domestic product le I, Section 8 ofent of the Act and the U.S. Constitution enumerates the popts to enwill also bt of their non-domenact a requiremdirected to ade subject to labeling, it meestic origin while domnt thatopt the has no counterpart rules and regulations wers expresay be sly estic Commerce Clause. In this case, the MissiNeither the memorandum nor the draft regssippi statute and accomulations indicate the proposepanying regulations d codification of the 19 5 power in violation of several provisions of the United States Constitution, including the delegated to Congress. In relevant part, thaccomproducts munder federal law.necessary for the Departmplished by a placard or with thust be identified as “Product of ent to carry out the Act.e more fae Commthe USA” or “Ammiliar sound erce Clause of Singerican” evidences an intent “Amection 8 provides that erican” or “Product of regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL would place significant costs and administrative burdens on retailers and wholesalers that Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; “the Congress shall have Power . . . [t]o USA;” in contrast, the “imported” labeling to discrim inate against foreign commerce. regulate Commmay raise consumerce with er concerns regarding the foreign Nations, and Proposal.” would, in turn, place an undue burden on interstate and foreign commerce. 7 25 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the amsafety of the product. ong the several States . . ..” The Mississippi country of origin mToward this end, on October 1, 2002, In addition to the direct greatthe Departm labeling regulations went issued a mant of authorityould require emorandum to Congress, 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. the Commerce Clause has long been recognized addressed to “All Retail Food Esretailers eithMoreover, the regulations favor domer to label meat produtablishmcts or to post a sign accoments” with a proposedestic to limproducts by providing retailers with a it the power of states to erect panying the p regulation interpreting the roducts 9 Specifically, once meat from abroad enters the United States, it enters the same COL Propo26sal, Sec. 2(c). 6 barriers to trade.regulatory incentive not to offer imlaw and authdeclaring the products’ country of origin or orizing comm Thus, under the so-called “dorments to be submported mitted until October 30, 2002.whether the products were produced in the eats to customant Commerce Clause,” states are ers. Specifically, the The proposed 10 distribution channels as dom COL Proposal, Sec. 4. estic products. Separating fresh cuts of meat based on their In this regard, please see the enclosed letter from the U.S. Department of prohibited fromregulations allow retailers who offer only 11United States, a “foreign country,” or both. imposing regulatory measures that are designed to benefit in-state domThe FMIA does not require country of origin estically produced meats to avoid the “Covered commodity” is not a term of art used either in the Mississippi statute or draft country of origin will be difficult to do and will impose substantial recordkeeping and 27 201 Agriculture (USDA), in which the Agency concludes that a substantially similar economregulation’s on-pack label requiremic interests by burdening foreign or out-of-state coment and post a placard averring that thpetitors. e establishment reg ulationsS.B. Note, too, t. T2h367is pr, Sec. 1(1ovihat sithe receon a)ppea. nt rpasss to age be taof the cken directountrlyy o fromf or Sectigini labon 1elin08g pro61 ofg trhaem in Farm Section Securi 10ty and816 of Ru tralhe other administrative costs on retailers and wholesalers. Retailers and wholesalers will 152 33 FarmInLouisiana statute and regulat vest BilmelId. U.Snt d Actoe. Const.s no oft sav 20 art02e ( th. VPe .LI, Mississip. § 102. 7-1ions are preem71p) i law fro(the Farmm co Binpted by the Fells), wtitutihiocnh amal inendedfirmdeity tral Me. First, thhe Agriat Inscue ltFMIA uralpection Ac Maprketrevenints g t Actstates of sells on ly American meat. Although the placard requirement is itself an incur furth316 er costs to achieve compliance with the regulations, including the costs of fro1 946 m i to estabmpId. at SecMarylosinlg anisahn a retail country ody lab. v.1( L4)eoui. linsig thanat is in adda, 451f orig U.S. 7initio lab25n toe (lin198 or g pro1)differen. gram fot thr “covan thoeredse req coummired bodyities,” i the FMIA, buncludingt mdoeat, es not (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the 174 training personnel in the necessary compliance measures, and the costs of labels and the pp re ohrishibabit thle agricuId. at Sec21e UU.S. Cong.S.Cltu.. §1(ral co 62)7ress fro. 8 mmo(emphasimdities, seafo ens adactin dedg add)o. d,itio andn apl laeanubelingts. requirements. Second, the Farm Bill in Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 1252818 labor necessary to apply themco njunction wiId. at SecIn2Bro1 co U.S.C. § 601wntnth-rastFo th. rmane ,1( tFMIA evh3)e. st (pDistillers v. at). ute apidenpeace a . NY Liquors tcoom delprehinr Aueatense ttivhh., e labeline a476pp Urop.gS. 5ri schat7e e3mm (e198et fohod 6)r coun. o f latry of beling accorigin labordingeling to respectfully request that the Mississippi Department of Agriculture and Commerce (the 2924196 th declarations wh ether thAlthSee IdAnte m. athwi21ougo eat is wrapp57nth res Uy J.h th9. .S.C. § Pipis ect to meat toznza Fo 6tice e20(d oodowas apparena)r un Pr. wrapod thuec extptse Cdtly poe oat thnrtp t. vhe timstedat. Wi th e one thscofede thnate si it is drDen al goDepartp’tveispmrnm layedofent Ae’s wegntri to occucul thbsite upitrepuees t an, 67blic. d mh6 F.e fiSee S.Baeli2dled and t 70o1d i .t ( h2m7e 367pl Cir. i eat dly 2530 Department) withdraw the proposed regulation. cor19preemSec. 8p2orat1() (pts 1)ue nU.SId. any furtpheaTheubl. at. Const.d i57qua lsheang9,her state d rt ciuaersopi, atge i orng nit. I,fofo sPike vngover § 8. o t amhde peo comp.nr Brtominpeng uceopsedanidital act Church, st reeris doictgivu colity inangturtiIncon i b uo th., 3sipsiis aren apnessn9io7pan) U irentn;. a. S. 13 MNa (See liytiossi de7 nassi(1ridl Broveip970scussiopd i, we a). friler Coom n Sectr be aeunlwoicil v. w) on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 262131 th th nBill. (9o tice Cir. gi1v2HBrow994e1ughn U.S.C. § 610 t)o;n-Fes v. th Arme oprOomauur &kblalic. nhom, (47 Co. v. Bc The Du).6 US at a, 441 U.ae Proll57, 46S. 339. cess 8 F. 2,Clau 23d2 766 (1se of t (9679 Cirh);e Fo H.P.. 1urteen972 Ho), ocerttdh & Am. de Soens,n’ndd Im, 411nenc. t of thv. D U.S. 98ue MU.S. Conond1 (19, 3376 U.S3s)titu; tio. n 322213 n52Grocecessitates the prov 5 (ery M1949);COCO21a U.S.C. § 601 nufacturersWL PrL Preltopoopoon v.sal, Sec. sal, Sec. ision Mi of A(nss oou)(1f mad42ri)erica v. ...equ, 91a Ute .S. 2nGerotice of regu75 ace(1, 581873 F. Supp).lato ry pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 3423143327 topart pa orticipn otThiCOBroArmSeeherate in, L Prsw gour, te.nrog.- ouruFoo, opo, , a2lemnBacc7rmandppe0sal, Sec. s, aF. Su 755khusars ti nDistillers v. g F.2 Ipp,o mwh be4. at 945port.d ich 993 des mri, Lt ve(NY Liquoa-42y sud.,d d6. Cir. 19fr v. ombstanDi Sectar Aus85)tially, 46it. on 1h 8 alter thorUity0.S. 268, 14766eir co of3 U t(1hS984e n 57sFtitua). 3, 5rmti Bo79nial (1llly pro. 986). tected interests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemoooooooore re re re re re re re October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 Page 9 Page 3 Page 4 Page 5 Page 8 Page 2 Page 7 Page 6 th 655 15 Street, N.W. Washington, DC 20005-5701 unconstitutional burden on commerce (see dilabeling. As the Mississippi law would im regulation broadly defines m However, as imFMI conducts programThe Supreme Court has adopted what Moreover, the burdens oported meat products are reeat as “the edibles in research, ef the labelinpose labeling that is in addition to and gscussion below), the fact that the requirducation, industry relations and public am parts of the carcass of mounts to a two-tiered approach to quired to mements will neet the samot be mammaterially e standards as als and their Tel: (202) 452-8444 7 24 28 affairs on behalf of its 2,300 m domDepartmorgans and glands.”different than the federal FMIA labeling realleviated by the provision that a placard manalyzing state economestically produced products,ent has chosen to offer this slightly The proposal states that labels on mic regulation under the Cember com the inherent impanquirema ley beies — food retailers and wholesalers — in ss bo used in lieu ofmmuents, the Mississippi requiremplication ofrdensomerce Clause.eat products me alte country of origin labeling labels frnative to reta Whoaen a state statur retay declare the ileileers thnts are rs what to e Fax: (202) 429-4519 20 the United SII. that have “purged” their stores of imdirecproduct to be of U.S. origin only if thexpressly preemsell only domimtly reguported mMississippi Country of Origtlateates and around the world. FMestically-produced meat mpted by federal law.s or discray be aduliminates agaterated or unsafe is false and ported eat. Thisin Meae anim inst inmeats and only offer “AmI’s U.S. m alternative would not obviate the burden of al was exclusively born, raised and tet Larstate commbeling Regulation Violates Suemberce, or when its effect is to ers operate approximmisleading. To require false erican” products is apremacy tely E-mail: fmi@fmi.org 8 35 26,000 retail food stores with a comfurther evfavor in-state economand mslaughtered in the U.S.tracing or determisleading labeling clearly conflicts wiClause of U.S. Constitution idence of the discrimining ic interests over out-of-statth Product that is blended of ie origin ofinatory mbined aeats. intent underlying the regulations. nnual sales volume ofth the federal laws’ prohibition against e interests, the Court mported meat and Am $340 billion — three-has generally struck erican meat Web site: www.fmi.org 29 quarters of all food retail store sales in thdown the statute witmust be labeled as “Blend of Am m isbranded products and, therefore, the MissMoreover, the fact that the Mississihout further inquiry.erican ae United States. FMI’s retail mnd im Wppi statute acknowledges the preemissippi country of origin mhen, however, a statute has only indirect ported meat from ‘the country where eeat labeling mbership is ptive 9 comproduced.’”effects on in regulation is preemnature of the FMIA at the outset by stating th posed ofB. The burden will be felt in foreign coArticle VI, Section 2 of the U.S. Consters The proposed regulations allow a retail large mMississippi Lacks Legitimate Interetate commpted by thulti-storerce and regulate chae federal laws by implication.ins, regionaes evenhandedly, the Court has exammmerat the requiremtitul firtion pmce as well, as foreign suppliers will be s and independent super that “sells only Amst in Country of Origin Labeling rovides th ents only apply to the extent at, “the Constitution, and ermerican arkets. Its ined meat” 10 international mrequired to utilize resources and adopt mto display a single sign statiwhether ththat they are “allowed bythe Laws of the United Se StateRegulations em’s inbership interest is legt the FMIA and aates . . . shall beng that fact, such as “only Amcludes 200 comitimate and whether the bueas the suprempplicable mpaniures that will serve no other purpose but to es frome Law of the Land; and the Judges eat inspection regulations” cannot 60 cerican mrdountries. The Retail en on inteeat sold here.”rstate comm erce 30 Association of Mississip clearly exceeds the local benefits.satisfy thin every Ssave the Mississippi provisions fromThe recene discrimtate shall be bound thereby, any Thit pinatoryassage of Section 10816 of the Farmpi represents a broad Mississipp There is, how preemi law. Accordingly, the regulations are intended to ption. Wcross-section ofng in the Constitution or Laws of any State ever, “no clear line” separating the hether or not th Bill prov retail ides a second bstores that conduct e Mississippi statute asis for 15 the imbusiness in the state of Mississippcatego and will burecognizes the preemto the Contrary notwithstanding.”plied preemries oThe drafrfd state regulaen ft reoption of the Mississippi law.reign commerce. gulations prptive power of the federation that are virtually ovide somi. Under the so-called Suprem e flexibility wl statute is irrelevant; if the Supremp Specifically,er se invalid under the Cith respec state law is preemacy Claust to the labomme, laws or elinerce Clause pted if g that acy For a state law or regulation that impacts interstate or foreign commerce to 16 October 30, 2002 Congress legislates comand those that are subject to the appears to exceed the scope of the underly regulations that conflict with Clause applies, the state statute prehensively, that isfederal law are withwill be preembalancing approach set forth in ing statute. Specifically, COL Proposed , occupies an entirepted, even if it isout effect. As discussed m silent in this regard. And, field of regulation Pike v. Bruce Churchore fully ; withstand constitutional scrutiny, the state must have and must have articulated a evidencing an intent to leave no room for thbelow, Mississipprathe Section 3(a) allows the country of origin laas the labeling requirements are preempted inr the criticaD. Less Restrictive Measul consi’s couidenrtry ation is the oveof origin mres Availabeat labeling rerall effect of the stbeling informe states to supplem their entirety, none le gulations and the underlying ation to beatute on both local and ent federal law. Wof the statute is provided by mheansen of legitimate interest in enacting the restriction. For example, a state generally has the 31 determstatute are preemI. a label, staminte“allowed by the FMIA.” rstaining whether Congress intended to te ac Mississippi Country of Origtivity.p, mapted by Federal lawrk, placard or other In this case, regard,in Mea both expressly and by implication. clear and visible sign on the “covered less ofoccupy the field, or whether a state law t Labeling Regulation the test that is applied, the Mis sissippi authority to implement non-discriminatory legislation to protect the health, safety or 11 Ms. Julie McLemore conflicts with federal law, courts consider statucommodity” te does not pass conIn reviewing state action to determ or on the package, display, holding unstitutional muster. ine whthe relationship between state and federal laws ether or not it is permit, or bin containing the commodity issible under the welfare of its citizens, provided that the burden on interstate or foreign commerce does 12 Director, Bureau of Regulatory Services as they are interpreted and applieat the f Comm erce Clause, a reviewing coiSenate Bill 2367, which was signed by thA. B. nal point ofFMIA ExprLabeling Required under Country of Origin Meat Labeling sale. Nonetheless, if a placard essly Preempts Missd, not murt looks to see whether th34 erely as they are written. e Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed e state governmigin Meat ent used the not clearly exceed the local benefits. In this case, however, Mississippi has not 13 Department of Agriculture and Commerce provision to the state statutes regulations require the sign to leas t resA. trictive mLabeling Regulation Regulation Is Preempted by Implication Mississippi Laweans possible to achieve a to require unprocessed mbe at least 8.5” x 14”, with a minim Discriminates Aglegitimainst Non-Domestically Produced ate intereat – whest. In thether fresh or frozen – to umis c of 1” lettering.ase, as no expressed the basis for its interest in the state statute or regulations. We were unable to PO Box 1609 be labeled with informlegitim ate inIn this case, Section 108teresMeat Prodt was aation concerning the rticuucts lated, it is unnecessa16 of the Farmmeat’s country of origin “to the extent Bill, as sry to considupplemer whether anented by the couy less ntry of locate any legislative history on the underlying statute and the draft regulations were not Jackson, Mississippi 39215 origin labeling guidelines USDA recently pub allowed by the Federarestrictive m COL ProposThe Mississippi country of origin mThe Federal Meat Ineasures are availabed Sec. 3(b) also provides thatl Meat Inspection Act (FMIspecle. tion Act andeat lisA) contains an express preemlabeling regulation is appliched, sets forth a com the retailer is not required to provide able federal m also preemeat inspecprehensive schption tion pted by eme accompanied by a preamble that in any way explained the state’s interest in the country any additional informfor country of origin labeling for an extremimregulations.” In particular, provision regarding product labeling. In releplication because the Mississipp As discussed mation on any “covered ore fully above, the Milabeling on mi rule conflieat offeely broad range ofcomvant part, the provision states as followssissippi statute and cts with federal law in sevred for samodity” that is already individually le in Mississipp products, including mregulations require eral imi must bear portant eat. s: of origin meat labeling regulations. Re: Proposed Regulation To Support “Country of Origin Meat Labeling IV. labeled for retail sale regarding country ofThe comrespects. First, the FMIA prohibits the sale, either (1) the namm“Marking, eat to be labeled with either a statemCountry of Origprelabelinghensive regue of the c, packaging or ingredient requiremlatoin Meaountry of origin preceded by the ry system, wht Labeling Reguent of the product’s count origin in a mich becamtransport, offer for salelation Violates Free Speech Clause of e effective upon the recenents . . . anner that comwords “Product of” or (2) one in addition to, or different ry of origin or a or transportation, or plies with COL t passage 14 17 Law” ofProposed Sec. 2.of the following designations threceipt for transportation in commstatemthan the Farm, those ment that the pU.S. Constitution Bill, inade under this chapter m cluderoduct is ons the devee of the foat are specified in the serclopmea of ay ent ofnot be imposed by any State . . ..”llowing: “Amny m federal gueat products that are mteatuidelinrican,” “Imte: “Imes, a perported,” “Amported,” or “Blend of iiod during whicsbranded at the “Labelingerican,” or h ” In the absence of an expressly declared interest, the state cannot be presumed to 32 1 the programis defined under the FMIA as “all labels “Blend” of imported and AmtimImported and Ame of such sale, transportation, offer fo can be imerican Meats.”plemented without peerican m Although labeling is required for domeats.and other written, printed or graphic mr sale or transportation, or receipt for The statemnalties, and, ultiment must appear oately, a system of nestically the immatter ediate have a legitimate interest. Indeed, the state’s true motive for enacting country of origin 21 Dear Ms. McLemore, m(1) upon anywrapping or container of the mproduced meats as well as imtranspoandatory country of origin labeling.rThe First Atation. article o A product will bmendment of the U.S. Cr any of its containers oported products, eat unless the e con Accordingly, the Farmsidered “monstiturm wrappers, or (2the type of labeling eat is displayed unwrapped, in which case isbrtion panded” if its labrovides that, Bill ev) accomrequired inherently “Congress sidences peling isanying such false or hall meat labeling legislation and promulgating the accompanying regulations is likely to be 18 22 36 2 mmCongressional intent toarticle.the statemdiscrimiasleading in any particular.ke no law . . . abridg”inates against m ent may appear on a sign included with the display. occupy the field of country of ineats produced in cg the freedo m of speech . . ..”ountries other than the United States. origin m The First Am Prepared meat labeling regulation, endment limeat products its the economic protectionism. Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consumthereby im government’s ability to compliedly preempting statption on the prempel speech, as weises and “fully cooked me laws of this nature, inclll as the governmeat as defined by the U.S. uding the Mississippi Country ent’s ability to restrict 37 3 Food Establishments,” the purpose of this letter is to offer comments from the Food of Origin Meat Labeling Law. Departm speech.The country of origin labeling that Specifically,As the federal statute prohibits statese The Mississippnt of Agricultu domre” are specificaei law and accomstically produced mlly exempted frompanying rew fromould be required eats immust be labeled in one of two ways, gulations attemposing any labeling requirem the scope of the law.under Mississippi law pt to compel speech ents C. Country of Origin Meat Labeling Regulation Unduly Burdens Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ fromboth of which identify the specific country ofin an unlawful violation implies that the im or add to the federal requireportedof the First Am meat products arendme ofm origin, namentents le.sser quality or present som , the clause preemely, “Product of the USA” or pts even those se health risk. tate Interstate Commerce regulation proposed by the Mississippi Department of Agriculture and Commerce to II. regulations that are m“Am One court noted that country of origin labelierican.” In contrast, mCountry of OrigEach violation of the statute is puniore striin Meaeats produced in ngent than the FMIA. Accordt Labeling Regushable by civil penalties of up to $500.00; ng can be designed to mcountries other than the United States mlation Violates Commerce Clause of ingly, courts have found state ake a consumer “feel ay 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law labeling requiremeither be identified as “Product of [specifieach day on which a violation occurs is consid that the product was something to be shunned, The appropriate standard for determU.S. Constitution ents to be preempted not onlc country]” or with a generic “Imining whether a governmy when they directly conflict with the ered a separate offeas a matter either ofnse under the s stimental comulated reaction ported” pulsion of tatute. In addition to the foregoing, courts generally consider the impact of the state (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed speech is un federal labeling requiremdesignation. The fact that magainsThe Mississippi Departmt it frolawful is set forth in m its labeling, or ofeent, mnt of Agricultueats produced in aking it im uncertaCentral Hudson Gas & Electric Corporation v. Public intyre and Commpo as to what mssible to comcountries other than the United States merce is charged with the ipght be the imly with both, but also in plications ay restriction on interstate or foreign commerce when conducting an inquiry under the 23 38 regulation on the grounds that, among other things, it is an unconstitutional exercise of Service Commission be identified with only a generic statemcircumthereof.”administration and enforcemstances in which a state attemArtic Although domestic product le I, Section 8 of. In order for compelled speech ent of the Act and the U.S. Constitution enumerates the popts to enwill also bt of their non-domenact a requiremdirected to ade subject to labeling, it mto meet the teeestic origin while domnt thatopt the has no counterpart st serules and regulations wers exprest foay be rth in sly Central estic Commerce Clause. In this case, the MissiNeither the memorandum nor the draft regssippi statute and accomulations indicate the proposepanying regulations d codification of the 19 5 power in violation of several provisions of the United States Constitution, including the delegated to Congress. In relevant part, thaccomproducts munder federal law.Hudsonnecessary for the Departmplished by a placard or with th, the governmust be identified as “Product of ent must assert a substantiaent to carry out the Act.e more fae Commthe USA” or “Ammil interest in supporliar sound erce Clause of Singerican” evidences an intent “Amection 8 provides that t of the comerican” or “Product of pelled regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL would place significant costs and administrative burdens on retailers and wholesalers that Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; “the Congress shall have Power . . . [t]o USA;” in contrast, the “imported” labeling to discrim speech and the required speech m inate against foreign comust be narromerce. regulate Commmawlyy raise consum tailored to advance the asserted erce with er concerns regarding the foreign Nations, and Proposal.” would, in turn, place an undue burden on interstate and foreign commerce. 7 25 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the amsafety of the product. substantial interest directly. ong the several States . . ..” The Mississippi country of origin mToward this end, on October 1, 2002, In addition to the direct greatthe Departm labeling regulations went issued a mant of authorityould require emorandum to Congress, 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. the Commerce Clause has long been recognized addressed to “All Retail Food Esretailers eithMoreover, the regulations favor domer to label meat produtablishmcts or to post a sign accoments” with a proposedestic to limproducts by providing retailers with a it the power of states to erect panying the p regulation interpreting the roducts 9 Specifically, once meat from abroad enters the United States, it enters the same COL Propo26sal, Sec. 2(c). 6 barriers to trade.regulatory incentive not to offer imlaw and authdeclaring the products’ country of origin or As discussed morizing comm Thus, under the so-called “dormore fully above, Missients to be submported mitted until October 30, 2002.whether the products were produced in the eats to customssippi has not articulated a legitimant Commerce Clause,” states are ers. Specifically, the The proposed ate 10 distribution channels as dom COL Proposal, Sec. 4. estic products. Separating fresh cuts of meat based on their In this regard, please see the enclosed letter from the U.S. Department of interest in requiring country of11regulations allow retailers who offer only prohibited fromUnited States, a “foreign country,” or both. imposing regulat origin labeling; therefore,ory measures that are designed to benefit in-state domThe FMIA does not require country of origin estically produced m the state lacks a comeats to avoid the pelling “Covered commodity” is not a term of art used either in the Mississippi statute or draft country of origin will be difficult to do and will impose substantial recordkeeping and 27 201 Agriculture (USDA), in which the Agency concludes that a substantially similar interest in country of oreconomregulation’s on-pack label requiremic interests by buigin labeling regulations. rdening foreign or out-of-state coment and post a placard averring that thMoreover, Mississippi has not petitors. e establishment reg ulationsS.B. Note, too, t. T2h367is pr, Sec. 1(1ovihat sithe receon a)ppea. nt rpasss to age be taof the cken directountrlyy o fromf or Sectigini labon 1elin08g pro61 ofg trhaem in Farm Section Securi 10ty and816 of Ru tralhe other administrative costs on retailers and wholesalers. Retailers and wholesalers will 152 33 FarmInLouisiana statute and regulat vest BilmelId. U.Snt d Actoe. Const.s no oft sav 20 art02e ( th. VPe .LI, Mississip. § 102. 7-1ions are preem71p) i law fro(the Farmm co Binpted by the Fells), wtitutihiocnh amal inendedfirmdeity tral Me. First, thhe Agriat Inscue ltFMIA uralpection Ac Maprketrevenints g t Actstates of demsells on onstrated that the sply American meat.eech that would be com Although the placard requirempelled under the regulatioent is itself an n would incur furth163 er costs to achieve compliance with the regulations, including the costs of fro1 946 m i to estabmpId. at SecMarylosinlg anisahn a retail country ody lab. v.1( L4)eoui. linsig thanat is in adda, 451f orig U.S. 7initio lab25n toe (lin198 or g pro1)differen. gram fot thr “covan thoeredse req coummired bodyities,” i the FMIA, buncludingt mdoeat, es not (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the advance the government’s interest. As states must supply empirical evidence of direct 174 training personnel in the necessary compliance measures, and the costs of labels and the pp re ohrishibabit thle agricuId. at Sec21e UU.S. Cong.S.Cltu.. §1(ral co 62)7ress fro. 8 mmo(emphasimdities, seafo ens adactin dedg add)o. d,itio andn apl laeanubelingts. requirements. Second, the Farm Bill in Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 1252818 labor necessary to apply themco njunction wiId. at Sec2InBro1 co U.S.C. § 601wntnth-rastFo th. rmane ,1( tFMIA evh3)e. st (pDistillers v. at). ute apidenpeace a . NY Liquors tcoom delprehinr Aueatense ttivhh., e labeline a476pp Urop.gS. 5ri schat7e e3mm (e198et fohod 6)r coun. o f latry of beling accorigin labordingeling to respectfully request that the Mississippi Department of Agriculture and Commerce (the 193524296 th declarations wh ether thAlthSee IdSee Ante m. athwi21Tougo eat is wrappu57nth res Upy J.mh th9. .S.C. §an Pipis Tect to meat toznhurlza Fo 6tice e20(d oowodowas apparena) Cr un Pr. o. vwrapod t. huMossec extptse Cdtly poe, 252 oat thnrtp t. vh F. Sue timstedat. Wi th e one thscoppfede t. 641hnate si it is drDen al, goDepart64p’tvei6 (M.Dspmrnm layedofent Ae’s wegnt. ri Tennto occucul thbsite u. 196pitrepuees t an, 67b6)lic. d mh6 F.. e fiSee S.Baeli2dled and t 70o1d i .t ( h2m7e 367pl Cir. i eat dly 302536 Department) withdraw the proposed regulation. cor19preemSec. 8p2orat1() (pts 1)ue nU.SIdU.S. Const. amend. . any furtpheaTheubl. at. Const.d i57qua lsheang9,her state d rt ciuaersopi, atge i orng nit. I,fofo sPike vngover § 8. o t amhI, cl. 2. de peo comp.nr Brtominpeng uceopsedanidital act Church, st reeris doictgivu colity inangturtiIncon i b uo th., 3sipsiis aren apnessn9io7pan) U irentn;. a. S. 13 MNa (See liytiossi de7 nassi(1ridl Broveip970scussiopd i, we a). friler Coom n Sectr be aeunlwoicil v. w) on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 26213137 th th nBill. (9o tice Cir. gi1v2BrowInH994e1ughntern U.S.C. § 610 t)o;n-Fes v. th aArmtionae oprOomauur &kl blaDalic. nhom, (47 Co. v. Biry Foodc The Du).6 US at a, 441 U.s Assoae Proll57, 46S. 339. cess cia8 F. 2,tionClau 23d2 v. Amesto 766 (1se of t (9679 Cirh);e Fo H.P.y., 19urteen9722 H F.3do), ocerttd h6 & 7Am. de (2d Soens,n’n Cirdd Im, 411n.en 19c. t of thv. D96) U.S. 98; uWooley ve MU.S. Conond1 (19, 337. M6 U.S3s)titu; aynartio. n d, 132232 n524Groc3ecessitates the prov 05 ( Uery M19.S. 7049);COCO21a U.S.C. § 601 5 nufacturersWL PrL Pr(1el977topoopoon v.). sal, Sec. sal, Sec. ision Mi of A(nss oou)(1f mad24ri)erica v. ...equ, 91a Ute .S. 2nGerotice of regu75 ace(1, 581873 F. Supp).lato ry pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 342314333827 topart pa orticipn otCOThiSeeCArmBroherate inent, L Prsw gour, trale.nrog.- ouruFo o, opoHu, , a2lemnBacc7rmandppeds0sal, Sec. s, aF. Suo 755khusnars ti nDistillers v. Gasg F.2 Ipp,o mwh be4 . at 945port&.d ich 993 El des mec. Cri, Lt ve(NY Liquoa-42y sud.,d d6. o Cir. 19fr v. rpombstan. v.Di Sect Par Aus85)tiallyubl, 46it. on 1hi 8 c alter tho ServrUity0.S. 268, 1. C4766eir co ofo3 Um t(1mhS984e ni s57sFsititua). 3, 5onrmti, 44 Bo79nial (17 U.Sllly pro. 986. 55). tected7 (19 in80). terests. Ms. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemMs. Julie McLemore oooooooore re re re re re re re October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 October 30, 2002 Page 9 Page 3 Page 4 Page 8 Page 2 Page 7 Page 6 Page 10 Page 5 th 655 15 Street, N.W. Washington, DC 20005-5701 unconstitutional burden on commerce (see dilabeling. As the Mississippi law would im advancemregulation broadly defines m FMI conducts programHowever, as imMoreover, the burdens oThe Supreme Court has adopted what ent of the interest by thported meat products are reeat as “the edibles in research, ef the labeline compellepose labeling that is in addition to and gd speech, Mississippi has not mscussion below), the fact that the requirducation, industry relations and public am parts of the carcass of mounts to a two-tiered approach to quired to mements will neet the samot be mammaterially e standards as eals and their t its burden Tel: (202) 452-8444 7 24 28 affairs on behalf of its 2,300 min this regaDepartm organs and glands.”domdifferent than the federal FMIA labeling reanalyzing state economalleviated by the provision that a placard mestically produced products,ent has chosen to offer this slightlyrd, either. The proposal states that labels on mic regulation under the Cember com the inherent impanquirema ley beies — food retailers and wholesalers — in ss bo used in lieu ofmmuents, the Mississippi requiremplication ofrdensomerce Clause.eat products me alte country of origin labeling labels frnative to reta Whoaen a state statur retay declare the ileileers thnts are rs what to e Fax: (202) 429-4519 20 the United Shave “purged” their stores of imII. product to be of U.S. origin only if th that direcexpressly preemsell only domimtly reguported mMississippi Country of Origtlateates and around the world. FMestically-produced meat mpted by federal law.s or discray be aduliminates agaterated or unsafe is false and ported eat. Thisin Meae anim inst inmeats and only offer “AmI’s U.S. m alternative would not obviate the burden of al was exclusively born, raised and tet Larstate commbeling Regulation Violates Suemberce, or when its effect is to ers operate approximmisleading. To require false erican” products is apremacy tely E-mail: fmi@fmi.org 8 35 26,000 retail food stores with a comfavor in-state economfurther evand mslaughtered in the U.S. tracing or determisleading labeling clearly conflicts wiClause of U.S. Constitution idence of the discrimining ic interests over out-of-statth Product that is blended of ie origin ofinatory mbined aeats. intent underlying the regulations. nnual sales volume ofth the federal laws’ prohibition against e interests, the Court mported meat and Am $340 billion — three-has generally struck erican meat Web site: www.fmi.org 29 down the statute witquarters of all food retail store sales in thmust be labeled as “Blend of Am m isbranded products and, therefore, the MissMoreover, the fact that the Mississihout further inquiry.erican a* * * e United States. FMI’s retail mnd im Wppi statute acknowledges the preemissippi country of origin mhen, however, a statute has only indirect ported meat from ‘the country where eeat labeling mbership is ptive 9 comproduced.’” effects on inregulation is preemnature of the FMIA at the outset by stating th posed ofB. The burden will be felt in foreign coArticle VI, Section 2 of the U.S. Consters The proposed regulations allow a retail large mMississippi Lacks Legitimate Interetate commpted by thulti-storerce and regulate chae federal laws by implication.ins, regionaes evenhandedly, the Court has exammmerat the requiremtitul firtion pmce as well, as foreign suppliers will be s and independent super that “sells only Amst in Country of Origin Labeling rovides th ents only apply to the extent at, “the Constitution, and ermerican arkets. Its ined meat” 10 international mrequired to utilize resources and adopt m to display a single sign statiwhether ththat they are “allowed bythe Laws of the United SFor the foregoing reasons, we respectfue StateRegulations em’s inbership interest is legt the FMIA and aates . . . shall beng that fact, such as “only Amcludes 200 comitimate and whether the bueas the suprempplicable mpaniures that will serve no other purpose but to lly urge the Mississippi Departmes frome Law of the Land; and the Judges eat inspection regulations” cannot 60 cerican mrdountries. The Retail en on inteeat sold here.”rstate comment of erce 30 Association of Mississip Agriculture and Commsatisfy thclearly exceeds the local benefits.in every Ssave the Mississippi provisions fromThe recene discrimtate shall be bound thereby, any Thit pinatoryassage of Section 10816 of the Farmerpi represents a broad ce (1) to withdraw th Mississipp There is, how preemi law. Accordingly, the regulations are intended to ption. Wcross-section ofng in the Constitution or Laws of any State e proposed country of origin mever, “no clear line” separating the hether or not th Bill prov retail ides a second bstores that conduct e Mississippi statute eat labeling asis for 15 the imbusiness in the state of Mississippregulations and (2) to forego the promulgation catego and will buto the Contrary notwithstanding.”recognizes the preemplied preemries oThe drafrfd state regulaen ft reoption of the Mississippi law.reign commerce. gulations prptive power of the federation that are virtually ovide somi. Under the so-called Suprem e flexibility wl statute is irrelevant; if the Supremp Specifically,of final country of origin mer se invalid under the Cith respec state law is preemacy Claust to the labommeeat labeling , laws or elinerce Clause pted if g that acy For a state law or regulation that impacts interstate or foreign commerce to 16 October 30, 2002 Congress legislates comregulations. and those that are subject to the appears to exceed the scope of the underly regulations that conflict with Clause applies, the state statute prehensively, that isfederal law are withwill be preembalancing approach set forth in ing statute. Specifically, COL Proposed , occupies an entirepted, even if it isout effect. As discussed m silent in this regard. And, field of regulation Pike v. Bruce Churchore fully ; withstand constitutional scrutiny, the state must have and must have articulated a evidencing an intent to leave no room for thbelow, Mississipp rathe Section 3(a) allows the country of origin laas the labeling requirements are preempted inr the criticaD. Less Restrictive Measul consi’s couidenrtry ation is the oveof origin mres Availabeat labeling rerall effect of the stbeling informe states to supplem their entirety, none le gulations and the underlying ation to beatute on both local and ent federal law. Wof the statute is provided by mheansen of legitimate interest in enacting the restriction. For example, a state generally has the 31 determstatute are preema label, stamI. inte S“allowed by the FMIA.” rstaining whether Congress intended to te ac Mississippi Country of Origtivity.p, mapted by Federal lawrk, placard or other In this case, regard,in Mea both expressly and by implication. clear and visible sign on the “covered inless ofceroccupy the field, or whether a state law et Labeling Regulationly the te, st that is applied, the Mis sissippi authority to implement non-discriminatory legislation to protect the health, safety or 11 Ms. Julie McLemore conflicts with federal law, courts consider statu commodity” te does not pass conIn reviewing state action to determ or on the package, display, holding unstitutional muster. ine whthe relationship between state and federal laws ether or not it is permit, or bin containing the commodity issible under the welfare of its citizens, provided that the burden on interstate or foreign commerce does 12 Director, Bureau of Regulatory Services as they are interpreted and applieat the f Comm erce Clause, a reviewing coiSenate Bill 2367, which was signed by thA. B. nal point ofFMIA ExprLabeling Required under Country of Origin Meat Labeling sale. Nonetheless, if a placard essly Preempts Missd, not murt looks to see whether th34 erely as they are written. e Mississippi governor, enacted a new issippi Country of Oror sign is used, the proposed e state governmigin Meat ent used the not clearly exceed the local benefits. In this case, however, Mississippi has not 13 Department of Agriculture and Commerce provision to the state statutes regulations require the sign to Deborah leas t resA. trictive mLabeling Regulation Regulation Is Preempted by Implication Mississippi Laweans possible to achieve a to require unprocessed mbe at least 8.5” x 14”, with a minim Discriminates AglegitimR. White ainst Non-Domestically Produced ate intereat – whest. In thether fresh or frozen – to umis c of 1” lettering.ase, as no expressed the basis for its interest in the state statute or regulations. We were unable to PO Box 1609 Regulatory be labeled with informlegitim ate inIn this case, Section 108teresMeat Prodt was aation concerning the rticuucts lated, it is unnecessa16 of the Farmmeat’s country of origin “to the extent Bill, as sCounsel ry to considupplemer whether anented by the couy less ntry of locate any legislative history on the underlying statute and the draft regulations were not Jackson, Mississippi 39215 origin labeling guidelines USDA recently pub allowed by the Federarestrictive m COL ProposThe Mississippi country of origin mThe Federal Meat Ineasures are availabed Sec. 3(b) also provides thatl Meat Inspection Act (FMIspecle. tion Act andeat lisA) contains an express preemlabeling regulation is appliched, sets forth a com the retailer is not required to provide able federal m also preemeat inspecprehensive schption tion pted by eme accompanied by a preamble that in any way explained the state’s interest in the country for country of origin labeling for an extremany additional inform imregulations.” In particular, provision regarding product labeling. In releplication because the Mississipp As discussed mation on any “covered ore fully above, the Milabeling on mi rule conflieat offeely broad range ofcomvant part, the provision states as followssissippi statute and cts with federal law in sevred for samodity” that is already individually le in Mississipp products, including mregulations require eral imi must bear portant eat. s: of origin meat labeling regulations. Re: Proposed Regulation To Support “Country of Origin Meat Labeling IV. labeled for retail sale regarding country ofThe com respects. First, the FMIA prohibits the sale, either (1) the namm“Marking, eat to be labeled with either a statemCountry of Origprelabelinghensive regue of the c, packaging or ingredient requiremlatoin Meaountry of origin preceded by the ry system, wht Labeling Reguent of the product’s count origin in a mich becamtransport, offer for salelation Violates Free Speech Clause of e effective upon the recenents . . . anner that comwords “Product of” or (2) one in addition to, or different ry of origin or a or transportation, or plies with COL t passage 14 17 Law” ofProposed Sec. 2.of the following designations thEnclosure receipt for transportation in commstatemthan the Farm, those ment that the pU.S. Constitution Bill, inade under this chapter m cluderoduct is ons the devee of the foat are specified in the serclopmea of ay ent ofnot be imposed by any State . . ..”llowing: “Amny m federal gueat products that are mteatuidelinrican,” “Imte: “Imes, a perported,” “Amported,” or “Blend of iiod during whicsbranded at the “Labelingerican,” or h ” In the absence of an expressly declared interest, the state cannot be presumed to 32 1 the program is defined under the FMIA as “all labels “Blend” of imported and AmtimImported and Ame of such sale, transportation, offer fo can be imerican Meats.”plemented without peerican m Although labeling is required for domeats.and other written, printed or graphic mr sale or transportation, or receipt for The statemnalties, and, ultiment must appear oately, a system of nestically the immatter ediate have a legitimate interest. Indeed, the state’s true motive for enacting country of origin 21 Dear Ms. McLemore, m wrapping or container of the m(1) upon anyproduced meats as well as imtranspoandatory country of origin labeling.rThe First Atation. article o A product will bmendment of the U.S. Cr any of its containers oported products, eat unless the e con Accordingly, the Farmsidered “monstiturm wrappers, or (2the type of labeling eat is displayed unwrapped, in which case isbrtion panded” if its labrovides that, Bill ev) accomrequired inherently “Congress sidences peling isanying such false or hall meat labeling legislation and promulgating the accompanying regulations is likely to be 18 22 36 2 mmCongressional intent toarticle.discrimthe statem iasleading in any particular.ke no law . . . abridg”inates against m ent may appear on a sign included with the display. occupy the field of country of ineats produced in cg the freedo m of speech . . ..”ountries other than the United States. origin m The First Am Prepared meat labeling regulation, endment limeat products its the economic protectionism. Following up on your October 1, 2002, memorandum addressed to “All Retail sold for consumthereby im government’s ability to compliedly preempting statption on the prempel speech, as weises and “fully cooked me laws of this nature, inclll as the governmeat as defined by the U.S. uding the Mississippi Country ent’s ability to restrict 37 3 Food Establishments,” the purpose of this letter is to offer comments from the Food of Origin Meat Labeling Law. Departm speech.The country of origin labeling that Specifically,As the federal statute prohibits statese The Mississippnt of Agricultu domre” are specificaei law and accomstically produced mlly exempted frompanying rew fromould be required eats immust be labeled in one of two ways, gulations attemposing any labeling requirem the scope of the law.under Mississippi law pt to compel speech ents C. Country of Origin Meat Labeling Regulation Unduly Burdens Marketing Institute (FMI) and the Retail Association of Mississippi (RAM) on the that differ fromboth of which identify the specific country ofin an unlawful violation implies that the im or add to the federal requireportedof the First Am meat products arendme ofm origin, namentents le.sser quality or present som , the clause preemely, “Product of the USA” or pts even those se health risk. tate Interstate Commerce regulation proposed by the Mississippi Department of Agriculture and Commerce to II. regulations that are m“Am One court noted that country of origin labelierican.” In contrast, mCountry of OrigEach violation of the statute is puniore striin Meaeats produced in ngent than the FMIA. Accordt Labeling Regushable by civil penalties of up to $500.00; ng can be designed to mcountries other than the United States mlation Violates Commerce Clause of ingly, courts have found state ake a consumer “feel ay 4 implement Senate Bill 2367, also known as the Country of Origin Meat Labeling Law labeling requiremeither be identified as “Product of [specifi each day on which a violation occurs is considthat the product was something to be shunned, The appropriate standard for determU.S. Constitution ents to be preempted not onlc country]” or with a generic “Imining whether a governmy when they directly conflict with the ered a separate offeas a matter either ofnse under the s stimental comulated reaction ported” pulsion of tatute. In addition to the foregoing, courts generally consider the impact of the state (hereinafter “S.B. 2367”). As discussed more fully below, FMI objects to the proposed speech is un federal labeling requiremdesignation. The fact that magainsThe Mississippi Departmt it frolawful is set forth in m its labeling, or ofeent, mnt of Agricultueats produced in aking it im uncertaCentral Hudson Gas & Electric Corporation v. Public intyre and Commpo as to what mssible to comcountries other than the United States merce is charged with the ipght be the imly with both, but also in plications ay restriction on interstate or foreign commerce when conducting an inquiry under the 23 38 regulation on the grounds that, among other things, it is an unconstitutional exercise of Service Commission be identified with only a generic statemcircumthereof.”administration and enforcemstances in which a state attemArtic Although domestic product le I, Section 8 of. In order for compelled speech ent of the Act and the U.S. Constitution enumerates the popts to enwill also bt of their non-domenact a requiremdirected to ade subject to labeling, it mto meet the teeestic origin while domnt thatopt the has no counterpart st serules and regulations wers exprest foay be rth in sly Central estic Commerce Clause. In this case, the MissiNeither the memorandum nor the draft regssippi statute and accomulations indicate the proposepanying regulations d codification of the 19 5 power in violation of several provisions of the United States Constitution, including the delegated to Congress. In relevant part, thaccomproducts munder federal law.Hudsonnecessary for the Departmplished by a placard or with th, the governmust be identified as “Product of ent must assert a substantiaent to carry out the Act.e more fae Commthe USA” or “Ammil interest in supporliar sound erce Clause of Singerican” evidences an intent “Amection 8 provides that t of the comerican” or “Product of pelled regulation; accordingly, for purposes of this comment, the proposed regulations will be cited as “COL would place significant costs and administrative burdens on retailers and wholesalers that Commerce Clause of Article I, Section 8; the Supremacy Clause of Article VI, Section 2; “the Congress shall have Power . . . [t]o USA;” in contrast, the “imported” labeling speech and the required speech m to discrim inate against foreign comust be narromerce. regulate Commmawlyy raise consum tailored to advance the asserted erce with er concerns regarding the foreign Nations, and Proposal.” would, in turn, place an undue burden on interstate and foreign commerce. 7 25 the Free Speech Clause o COL Proposal, Sec. 1(f the First Aa). mendment; and the Due Process Clause of the amsafety of the product. substantial interest directly. ong the several States . . ..” The Mississippi country of origin mToward this end, on October 1, 2002, In addition to the direct greatthe Departm labeling regulations went issued a mant of authorityould require emorandum to Congress, 8 COL Proposal, Sec. 2(b). Fourteenth Amendment. the Commerce Clause has long been recognized addressed to “All Retail Food Esretailers eithMoreover, the regulations favor domer to label meat produtablishmcts or to post a sign accoments” with a proposedestic to limproducts by providing retailers with a it the power of states to erect panying the p regulation interpreting the roducts 9 Specifically, once meat from abroad enters the United States, it enters the same COL Propo26sal, Sec. 2(c). 6 barriers to trade.regulatory incentive not to offer imlaw and authdeclaring the products’ country of origin or As discussed morizing comm Thus, under the so-called “dormore fully above, Missients to be submported mitted until October 30, 2002.whether the products were produced in the eats to customssippi has not articulated a legitimant Commerce Clause,” states are ers. Specifically, the The proposed ate 10 distribution channels as dom COL Proposal, Sec. 4. estic products. Separating fresh cuts of meat based on their In this regard, please see the enclosed letter from the U.S. Department of interest in requiring country ofregulations allow retailers who offer only 11prohibited fromUnited States, a “foreign country,” or both. imposing regulat origin labeling; therefore,ory measures that are designed to benefit in-state domThe FMIA does not require country of origin estically produced m the state lacks a comeats to avoid the pelling “Covered commodity” is not a term of art used either in the Mississippi statute or draft country of origin will be difficult to do and will impose substantial recordkeeping and 27 201 Agriculture (USDA), in which the Agency concludes that a substantially similar interest in country of oreconomregulation’s on-pack label requiremic interests by buigin labeling regulations. rdening foreign or out-of-state coment and post a placard averring that thMoreover, Mississippi has not petitors. e establishment reg ulationsS.B. Note, too, t. T2h367is pr, Sec. 1(1ovihat sithe receon a)ppea. nt rpasss to age be taof the cken directountrlyy o fromf or Sectigini labon 1elin08g pro61 ofg trhaem in Farm Section Securi 10ty and816 of Ru tralhe other administrative costs on retailers and wholesalers. Retailers and wholesalers will 152 33 FarmInLouisiana statute and regulat vest BilmelId. U.Snt d Actoe. Const.s no oft sav 20 art02e ( th. VPe .LI, Mississip. § 102. 7-1ions are preem71p) i law fro(the Farmm co Binpted by the Fells), wtitutihiocnh amal inendedfirmdeity tral Me. First, thhe Agriat Inscue ltFMIA uralpection Ac Maprketrevenints g t Actstates of demsells on onstrated that the sply American meat.eech that would be com Although the placard requirempelled under the regulatioent is itself an n would incur furth163 er costs to achieve compliance with the regulations, including the costs of fro1 946 m i to estabmpId. at SecMarylosinlg anisahn a retail country ody lab. v.1( L4)eoui. linsig thanat is in adda, 451f orig U.S. 7initio lab25n toe (lin198 or g pro1)differen. gram fot thr “covan thoeredse req coummired bodyities,” i the FMIA, buncludingt mdoeat, es not (FMIA) and the Poultry Products Inspection Act (PPIA), essentially agreeing that the advance the government’s interest. As states must supply empirical evidence of direct 174 training personnel in the necessary compliance measures, and the costs of labels and the pp re ohrishibabit thle agricuId. at Sec21e UU.S. Cong.S.Cltu.. §1(ral co 62)7ress fro. 8 mmo(emphasimdities, seafo ens adactin dedg add)o. d,itio andn apl laeanubelingts. requirements. Second, the Farm Bill in Louisiana law violates the Supremacy Clause of the U.S. Constitution. Accordingly, we 1252818 labor necessary to apply themco njunction wiId. at Sec2InBro1 co U.S.C. § 601wntnth-rastFo th. rmane ,1( tFMIA evh3)e. st (pDistillers v. at). ute apidenpeace a . NY Liquors tcoom delprehinr Aueatense ttivhh., e labeline a476pp Urop.gS. 5ri schat7e e3mm (e198et fohod 6)r coun. o f latry of beling accorigin labordingeling to respectfully request that the Mississippi Department of Agriculture and Commerce (the 635242919 th declarations wh ether thAlthSee IdSee Ante m. athwi21Tougo eat is wrappu57nth res Upy J.mh th9. .S.C. §an Pipis Tect to meat toznhurlza Fo 6tice e20(d oowodowas apparena) Cr un Pr. o. vwrapod t. huMossec extptse Cdtly poe, 252 oat thnrtp t. vh F. Sue timstedat. Wi th e one thscoppfede t. 641hnate si it is drDen al, goDepart64p’tvei6 (M.Dspmrnm layedofent Ae’s wegnt. ri Tennto occucul thbsite u. 196pitrepuees t an, 67b6)lic. d mh6 F.. e fiSee S.Baeli2dled and t 70o1d i .t ( h2m7e 367pl Cir. i eat dly 302536 Department) withdraw the proposed regulation. cor19preemSec. 8p2orat1() (pts 1)ue nU.SIdU.S. Const. amend. . any furtpheaTheubl. at. Const.d i57qua lsheang9,her state d rt ciuaersopi, atge i orng nit. I,fofo sPike vngover § 8. o t amhI, cl. 2. de peo comp.nr Brtominpeng uceopsedanidital act Church, st reeris doictgivu colity inangturtiIncon i b uo th., 3sipsiis aren apnessn9io7pan) U irentn;. a. S. 13 MNa (See liytiossi de7 nassi(1ridl Broveip970scussiopd i, we a). friler Coom n Sectr be aeunlwoicil v. w) on 1are of0Vo8 n1sso6 ot, of44he t Fhr e fo. 3dFarrm 7m of 4 0 26213137 th th nBill. (9o tice Cir. gi1v2HInBrow994e1ughntern U.S.C. § 610 t)o;n-Fes v. th aArmtionae oprOomauur &kl blaDalic. nhom, (47 Co. v. Biry Foodc The Du).6 US at a, 441 U.s Assoae Proll57, 46S. 339. cess cia8 F. 2,tionClau 23d2 v. Amesto 766 (1se of t (9679 Cirh);e Fo H.P.y., 19urteen9722 H F.3do), ocerttd h6 & 7Am. de (2d Soens,n’n Cirdd Im, 411n.en 19c. t of thv. D96) U.S. 98; uWooley ve MU.S. Conond1 (19, 337. M6 U.S3s)titu; aynartio. n d, 132232 n452Groc3ecessitates the prov 05 ( Uery M19.S. 7049);COCO21a U.S.C. § 601 5 nufacturersWL PrL Pr(1el977topoopoon v.). sal, Sec. sal, Sec. ision Mi of A(nss oou)(1f mad24ri)erica v. ...equ, 91a Ute .S. 2nGerotice of regu75 ace(1, 581873 F. Supp).lato ry pr. 65ocee8 (diS.D.N.Yngs to aff. 19or84d ), the puaff’d inblic p an opart andpo rev’rtunid inty 333423142738 topart pa orticipn otCOThiCArmBroSeeherate inent, L Prsw gour, trale.nrog.- ouruFo o, opoHu, , a2lemnBacc7rmandppeds0sal, Sec. s, aF. Suo 755khusnars ti nDistillers v. Gasg F.2 Ipp,o mwh be4 . at 945port&.d ich 993 El des mec. Cri, Lt ve(NY Liquoa-42y sud.,d d6. o Cir. 19fr v. rpombstan. v.Di Sect Par Aus85)tiallyubl, 46it. on 1hi 8 c alter tho ServrUity0.S. 268, 1. C4766eir co ofo3 Um t(1mhS984e ni s57sFsititua). 3, 5onrmti, 44 Bo79nial (17 U.Sllly pro. 986. 55). tected7 (19 in80). terests.