American Meat Institute v. United States Department of Agriculture

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 19, 2014 Decided July 29, 2014

No. 13-5281

AMERICAN MEAT INSTITUTE, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01033)

Catherine E. Stetson argued the cause for appellants.

With her on the briefs were Jonathan L. Abram, Judith E.

Coleman, Mary Helen Wimberly, and Elizabeth B. Prelogar.

Peter D. Keisler, Jonathan F. Cohn, Erika L. Myers,

Rachel L. Brand, Steven P. Lehotsky, and Quentin Riegel were

on the brief for amici curiae The National Association of

Manufacturers, et al. in support of appellants.

Jonathan Hacker and Anton Metlitsky were on the brief

for amicus curiae Grocery Manufacturers Association in

support of appellants.

2

Daniel Tenny, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the briefs were

Stuart F. Delery, Assistant Attorney General, Ronald C.

Machen Jr., U.S. Attorney, and Mark B. Stern, Attorney.

Terence P. Stewart was on the brief for intervenors

United States Cattlemen’s Association, et al. in support of

appellees.

Zachary B. Corrigan, Julie A. Murray, Scott L. Nelson,

and Allison M. Zieve were on the brief for amici curiae Food

and Water Watch, Inc., et al. in support of appellees.

Jonathan R. Lovvorn and Aaron D. Green were on the

brief for amici curiae American Grassfed Association, et al. in

support of appellees.

George A. Kimbrell was on the brief for amici curiae

Center for Food Safety, et al. in support of appellees.

Mark E. Greenwold was on the brief for amici curiae

Tobacco Control Legal Consortium, et al. in support of

appellees.

Stephan E. Becker was on the brief for amicus curiae The

United Mexican States in support of neither party.

Alan Kashdan was on the brief for amicus curiae

Government of Canada in support of neither party.

Before: GARLAND, Chief Judge, HENDERSON, ROGERS,

TATEL, BROWN, GRIFFITH, KAVANAUGH, SRINIVASAN,

PILLARD, WILKINS, Circuit Judges, and WILLIAMS, Senior

Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

3

Opinion concurring in part filed by Circuit Judge

ROGERS.

Opinion concurring in the judgment filed by Circuit

Judge KAVANAUGH.

Dissenting opinion filed by Circuit Judge HENDERSON.

Dissenting opinion filed by Circuit Judge BROWN, which

Circuit Judge HENDERSON joins.

WILLIAMS, Senior Circuit Judge: Reviewing a regulation

of the Secretary of Agriculture that mandates disclosure of

country-of-origin information about meat products, a panel of

this court rejected the plaintiffs’ statutory and First

Amendment challenges. The panel found the plaintiffs

unlikely to succeed on the merits and affirmed the district

court’s denial of a preliminary injunction. On the First

Amendment claim, the panel read Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626, 651 (1985), to apply to

disclosure mandates aimed at addressing problems other than

deception (which the mandate at issue in Zauderer had been

designed to remedy). Noting that prior opinions of the court

might be read to bar such an application of Zauderer, the

panel proposed that the case be reheard en banc. The full

court shortly voted to do so. Order, American Meat Institute

v. USDA, No. 13-5281 (D.C. Cir. Apr. 4, 2014) (vacating the

judgment issued on Mar. 28, 2014, and ordering rehearing en

banc). We now hold that Zauderer in fact does reach beyond

problems of deception, sufficiently to encompass the

disclosure mandates at issue here.

* * *

Congress has required country-of-origin labels on a

variety of foods, including some meat products, 7 U.S.C.

4

§§ 1638, 1638a, and tasked the Secretary of Agriculture with

implementation, id. § 1638c. In the original statute, Congress

did not define “country of origin,” leaving that to the agency.

Pub. L. No. 107-171, § 282, 116 Stat. 134, 533 (2002). After

delaying the statute’s implementation, see, e.g., Pub. L. No.

108-199, § 749, 118 Stat. 3, 37 (2004), Congress amended it

in 2008 to define “country of origin,” Pub. L. No. 110-234,

§ 11002, 122 Stat. 923, 1351-52 (2008). See also 153 Cong.

Rec. 20,843 (2007) (statement of Rep. Peterson) (explaining

the 2008 amendment as a compromise to allow the delayed

country-of-origin mandate to go into effect). For meat cuts, at

least, the amended statute defined country of origin based on

where the animal has been born, raised, and slaughtered—the

three major production steps. 7 U.S.C. § 1638a(a)(2).

The Secretary, whom we refer to interchangeably with his

delegate the Agricultural Marketing Service (“AMS”), first

promulgated rules in 2009. Mandatory Country of Origin

Labeling, 74 Fed. Reg. 2658 (Jan. 15, 2009) (“2009 rule”).

The rules did not demand explicit identification of the

production step(s) occurring in each listed country, but called

more simply for labeling with a phrase starting “Product of,”

followed by mention of one or more countries. 7 C.F.R.

§ 65.400 (2010). The 2009 rule also made allowance for a

production practice known as “commingling.” This made the

labeling of meat cuts from animals of different origins

processed together on a single production day relatively

simple; the label could just name all the countries of origin for

the commingled animals. Id. § 65.300(e)(2), (e)(4).

After the 2009 rule’s adoption, Canada and Mexico filed

a complaint with the Dispute Settlement Body of the World

Trade Organization. In due course the WTO’s Appellate

Body found the rule to be in violation of the WTO Agreement

on Technical Barriers to Trade. See Appellate Body Report,

United States—Certain Country of Origin Labelling (COOL)

5

Requirements, WT/DS384/AB/R (June 29, 2012). The

gravamen of the WTO’s decision appears to have been an

objection to the relative imprecision of the information

required by the 2009 rule. See id. ¶ 343. In a different

section of its opinion, the Appellate Body seemed to agree

with the United States that country-of-origin labeling in

general can serve a legitimate objective in informing

consumers. Id. ¶ 453. A WTO arbitrator gave the United

States a deadline to bring its requirements into compliance

with the ruling.

The Secretary responded with a rule requiring more

precise information—revealing the location of each

production step. Mandatory Country of Origin Labeling, 78

Fed. Reg. 31,367 (May 24, 2013) (“2013 rule”). For example,

meat derived from an animal born in Canada and raised and

slaughtered in the United States, which formerly could have

been labeled “Product of the United States and Canada,”

would now have to be labeled “Born in Canada, Raised and

Slaughtered in the United States.” In a matter of great

concern to plaintiffs because of its cost implications, the 2013

rule also eliminated the flexibility allowed in labeling

commingled animals. Id. at 31,367/3.

The plaintiffs, a group of trade associations representing

livestock producers, feedlot operators, and meat packers,

whom we’ll collectively call American Meat Institute

(“AMI”), challenged the 2013 rule in district court as a

violation of both the statute and the First Amendment. This

led to the decisions summarized at the outset of this opinion.

AMI argues that the 2013 rule violates its First

Amendment right to freedom of speech by requiring it to

disclose country-of-origin information to retailers, who will

ultimately provide the information to consumers. See 7

U.S.C. § 1638a(e). The question before us, framed in the

6

order granting en banc review, is whether the test set forth in

Zauderer, 471 U.S. at 651, applies to government interests

beyond consumer deception. Instead, AMI says, we should

apply the general test for commercial speech restrictions

formulated in Central Hudson, 447 U.S. 557, 566 (1980).

Given the scope of the court’s order, we assume the

correctness of the panel’s rejection of plaintiffs’ statutory

claims.

* * *

The starting point common to both parties is that

Zauderer applies to government mandates requiring

disclosure of “purely factual and uncontroversial information”

appropriate to prevent deception in the regulated party’s

commercial speech. The key question for us is whether the

principles articulated in Zauderer apply more broadly to

factual and uncontroversial disclosures required to serve other

government interests. AMI also argues that even if Zauderer

extends beyond correction of deception, the government has

no interest in country-of-origin labeling substantial enough to

sustain the challenged rules.

Zauderer itself does not give a clear answer. Some of its

language suggests possible confinement to correcting

deception. Having already described the disclosure mandated

there as limited to “purely factual and uncontroversial

information about the terms under which [the transaction was

proposed],” the Court said, “we hold that an advertiser’s rights

are adequately protected as long as [such] disclosure

requirements are reasonably related to the State’s interest in

preventing deception of consumers.” 471 U.S. at 651. (It

made no finding that the advertiser’s message was “more

likely to deceive the public than to inform it,” which would

constitutionally subject the message to an outright ban. See

7

Central Hudson, 447 U.S. at 563.) The Court’s own later

application of Zauderer in Milavetz, Gallop & Milavetz, P.A.

v. United States, 559 U.S. 229 (2010), also focused on

remedying misleading advertisements, which was the sole

interest invoked by the government. Id. at 249. Given the

subject of both cases, it was natural for the Court to express

the rule in such terms. The language could have been simply

descriptive of the circumstances to which the Court applied its

new rule, or it could have aimed to preclude any application

beyond those circumstances. Cf. Cohens v. Virginia, 19 U.S.

(6 Wheat.) 264, 399 (1821) (Marshall, C.J., warning against

extending general language of an opinion into different

contexts), quoted in Arkansas Game and Fish Comm’n v.

United States, 133 S. Ct. 511, 520 (2012).

The language with which Zauderer justified its approach,

however, sweeps far more broadly than the interest in

remedying deception. After recounting the elements of

Central Hudson, Zauderer rejected that test as unnecessary in

light of the “material differences between disclosure

requirements and outright prohibitions on speech.” Zauderer,

471 U.S. at 650. Later in the opinion, the Court observed that

“the First Amendment interests implicated by disclosure

requirements are substantially weaker than those at stake

when speech is actually suppressed.” Id. at 652 n.14. After

noting that the disclosure took the form of “purely factual and

uncontroversial information about the terms under which [the]

services will be available,” the Court characterized the

speaker’s interest as “minimal”: “Because the extension of

First Amendment protection to commercial speech is justified

principally by the value to consumers of the information such

speech provides, appellant’s constitutionally protected interest

in not providing any particular factual information in his

advertising is minimal.” Id. at 651 (citation omitted). All

told, Zauderer’s characterization of the speaker’s interest in

opposing forced disclosure of such information as “minimal”

8

seems inherently applicable beyond the problem of deception,

as other circuits have found. See, e.g., N.Y. State Rest. Ass’n

v. N.Y. City Bd. of Health, 556 F.3d 114, 133 (2d Cir. 2009);

Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310 (1st

Cir. 2005) (Torruella, J.); id. at 316 (Boudin, C.J. & Dyk, J.);

id. at 297-98 (per curiam) (explaining that the opinion of

Chief Judge Boudin and Judge Dyk is controlling on the First

Amendment issue); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272

F.3d 104, 113-15 (2d Cir. 2001).

To the extent that other cases in this circuit may be read

as holding to the contrary and limiting Zauderer to cases in

which the government points to an interest in correcting

deception, we now overrule them.1 See, e.g., Nat’l Ass’n of

Mfrs. v. SEC, 748 F.3d 359, 370-71 (D.C. Cir. 2014); Nat’l

Ass’n of Mfrs. v. NLRB, 717 F.3d 947, 959 n.18 (D.C. Cir.

2013); R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205,

1214 (D.C. Cir. 2012).

In applying Zauderer, we first must assess the adequacy

of the interest motivating the country-of-origin labeling

scheme. AMI argues that, even assuming Zauderer applies

here, the government has utterly failed to show an adequate

interest in making country-of-origin information available to

consumers. AMI disparages the government’s interest as

simply being that of satisfying consumers’ “idle curiosity.”

1

Judge Henderson in her separate dissent criticizes the now-

vacated panel opinion for stating the panel’s view that the language

of R.J. Reynolds and National Association of Manufacturers v.

NLRB limiting Zauderer to instances of deception-correction did

not constitute holdings. Whatever the merits of that view, the panel

recognized that other judges might reasonably take the contrary

view and accordingly called for the court to consider the scope of

Zauderer en banc, a call to which the court responded affirmatively.

The present opinion is the consequence.

9

Counsel for AMI acknowledged during oral argument that her

theory would as a logical matter doom the statute, “if the only

justification that Congress has offered is the justification that

it offered here . . . .” Oral Argument Tr. 18, American Meat

Institute v. USDA, No. 13-5281 (D.C. Cir. May 19, 2014) (en

banc).

Beyond the interest in correcting misleading or confusing

commercial speech, Zauderer gives little indication of what

type of interest might suffice. In particular, the Supreme

Court has not made clear whether Zauderer would permit

government reliance on interests that do not qualify as

substantial under Central Hudson’s standard, a standard that

itself seems elusive. Cf. Kansas v. United States, 16 F.3d 436,

443 (D.C. Cir. 1994) (“Indeed, the pedestrian nature of those

interests affirmed as substantial calls into question whether

any governmental interest—except those already found trivial

by the Court—could fail to be substantial.”); Board of

Trustees v. Fox, 492 U.S. 469, 475 (1989) (finding a ban

applied to “Tupperware parties” in a college dormitory to be

permissibly based on the state’s substantial interests in

“promoting an educational rather than commercial atmosphere

on SUNY’s campuses, promoting safety and security,

preventing commercial exploitation of students, and

preserving residential tranquility”). But here we think several

aspects of the government’s interest in country-of-origin

labeling for food combine to make the interest substantial: the

context and long history of country-of-origin disclosures to

enable consumers to choose American-made products; the

demonstrated consumer interest in extending country-of-

origin labeling to food products; and the individual health

concerns and market impacts that can arise in the event of a

food-borne illness outbreak. Because the interest motivating

the 2013 rule is a substantial one, we need not decide whether

a lesser interest could suffice under Zauderer.

10

Country-of-origin information has an historical pedigree

that lifts it well above “idle curiosity.” History can be telling.

In Burson v. Freeman, 504 U.S. 191, 211 (1992) (plurality

opinion), for example, the Court, applying strict scrutiny to

rules banning electioneering within a 100-foot zone around

polling places, found an adequate justification in a “long

history, a substantial consensus, and simple common sense.”

See also Fla. Bar v. Went For It, Inc., 515 U.S. 618, 628

(1995) (citing Burson for the same proposition). And

country-of-origin label mandates indeed have a “long

history.” Congress has been imposing similar mandates since

1890, giving such rules a run just short of 125 years. See

Tariff Act of 1890, ch. 1244, § 6, 26 Stat. 567, 613; United

States v. Ury, 106 F.2d 28, 29 (2d Cir. 1939); see also Tariff

Act of 1930, ch. 497, § 304, 46 Stat. 590, 687 (current version

at 19 U.S.C. § 1304); Wool Products Labeling Act of 1939, as

amended by Drug Price Competition and Patent Term

Restoration Act of 1984, Pub. L. No. 98-417, §§ 304-05, 98

Stat. 1585, 1604 (current version at 15 U.S.C.

§ 68b(a)(2)(D)); Fur Products Labeling Act, ch. 298, § 4, 65

Stat. 175, 177-78 (1951) (current version at 15 U.S.C.

§ 69b(2)(F)); Textile Fiber Products Identification Act, Pub.

L. No. 85-897, § 4, 72 Stat. 1717, 1719 (1958) (current

version at 15 U.S.C § 70b(b)(4)-(5)); American Automobile

Labeling Act, Pub. L. No. 102-388, § 210, 106 Stat. 1556

(1992) (current version at 49 U.S.C. § 32304).

The history relied on in Burson was (as here) purely of

legislative action, not First Amendment rulings by the

judiciary. But just as in Burson, where “[t]he majority of [the]

laws were adopted originally in the 1890s,” 504 U.S. at 208,

the “time-tested consensus” that consumers want to know the

geographical origin of potential purchases has material weight

in and of itself, id. at 206. The Congress that extended

country-of-origin mandates to food did so against a historical

11

backdrop that has made the value of this particular product

information to consumers a matter of common sense.

Supporting members of Congress identified the statute’s

purpose as enabling customers to make informed choices

based on characteristics of the products they wished to

purchase, including United States supervision of the entire

production process for health and hygiene. 148 Cong. Rec.

5491-92 (2002) (statement of Rep. Hooley, co-sponsor of

country-of-origin amendment to 2002 Farm Bill) (mentioning

“buy American” and safety interests motivating consumers’

desire for country-of-origin information); id. at 5493

(statement of Rep. Wu) (same); see also 153 Cong. Rec.

20,847 (2007) (statement of Rep. Bono) (calling country-of-

origin labeling “a matter of public safety”). Some expressed a

belief that with information about meat’s national origin,

many would choose American meat on the basis of a belief

that it would in truth be better. See, e.g., 148 Cong. Rec. 5492

(2002) (statement of Rep. Hooley); id. (statement of Rep.

Thune); id. (statement of Rep. Wu). Even though the

production steps abroad for food imported into the United

States are to a degree subject to U.S. government monitoring,

see Brief for United Mexican States as Amicus Curiae at 4-6,

it seems reasonable for Congress to anticipate that many

consumers may prefer food that had been continuously under

a particular government’s direct scrutiny.

Some legislators also expressed the belief that people

would have a special concern about the geographical origins

of what they eat. This is manifest in anecdotes appearing in

the legislative record, such as the collapse of the cantaloupe

market when some imported cantaloupes proved to be

contaminated and consumers were unable to determine

whether the melons on the shelves had come from that

country. See 148 Cong. Rec. 5492 (2002) (statement of Rep.

Thurman). Of course the anecdote more broadly suggests the

12

utility of these disclosures in the event of any disease outbreak

known to have a specific country of origin, foreign or

domestic.

The record is further bolstered by surveys AMS

reviewed, such as one indicating that 71-73 percent of

consumers would be willing to pay for country-of-origin

information about their food. Mandatory Country of Origin

Labeling, 68 Fed. Reg. 61,944, 61,955/2 (proposed Oct. 30,

2003) (to be codified at 7 C.F.R. pt. 60) (“2003 proposed

rule”); see also 2013 rule, 78 Fed. Reg. at 31,375/3 (noting

that commenters had referred to a study showing consumer

willingness to pay). The AMS quite properly noted the

vulnerabilities in such data. Most obvious is the point that

consumers tend to overstate their willingness to pay; after all,

the data sound possibly useful, and giving a “Yes” answer on

the survey doesn’t cost a nickel. 2003 proposed rule, 68 Fed.

Reg. at 61,955/3; see also 2013 rule, 78 Fed. Reg. at 31,377/3

(reiterating that the agency found no available consumer

surveys using sufficiently complex modeling techniques). But

such studies, combined with the many favorable comments

the agency received during all of its rulemakings, reinforce

the historical basis for treating such information as valuable.

2013 rule, 78 Fed. Reg. at 31,376/1-2.

In light of the legislators’ arguments, read in the context

of country-of-origin labeling’s long history, we need not

consider to what extent a mandate reviewed under Zauderer

can rest on “other suppositions,” as opposed to “the precise

interests put forward by the State.” See Edenfield v. Fane,

507 U.S. 761, 768 (1993). The statute itself mandates

country-of-origin labels, 2013 rule, 78 Fed. Reg. at 31,377/2,

and AMI makes no claim that the agency’s exercises of its

discretion are of constitutional moment (and we are reviewing

only AMI’s constitutional claim, not the separate statutory

interpretation issue it raised before the panel). As “[t]he

13

Chenery doctrine [SEC v. Chenery Corp., 318 U.S. 80, 94

(1943)] has no application to” agency actions required by

statute, Morgan Stanley Capital Group Inc. v. Public Utility

Dist. No. 1, 554 U.S. 527, 544-45 (2008), the “precise

interests” served by the 2013 rule are simply those advanced

by Congress in adopting the statute.

We pause to note the implications of a rule under which a

statute’s constitutionality could be doomed by agency

fumbling (whether deliberate or accidental) of perfectly

adequate legislative interests properly stated by congressional

proponents. Such a rule would allow the executive to torpedo

otherwise valid legislation simply by failing to cite to the

court the interests on which Congress relied. And it would

allow the next administration to revive the legislation by

citing those interests. We do not think the constitutionality of

a statute should bobble up and down at an administration’s

discretion.

In any event, the agency has sufficiently invoked the

interests served by the statute, both during the rulemaking,

2013 rule, 78 Fed. Reg. at 31,377/2 (“This rule . . . is the

result of statutory obligations to implement the [country-of-

origin] provisions of the 2002 and 2008 Farm Bills.”); id. at

31,370/1, and in litigation, Federal Appellees’ Br. 25, 26,

American Meat Institute v. USDA, No. 13-5281 (D.C. Cir.

2014), and has certainly not disclaimed those interests, see

Oral Argument Tr. 51-52, American Meat Institute v. USDA,

No. 13-5281 (D.C. Cir. May 19, 2014) (en banc).

Finally, agency statements (from prior rulemakings)

claiming that country-of-origin labeling serves no food safety

interest are not inconsistent with any of the government’s

litigation positions here. Simply because the agency believes

it has other, superior means to protect food safety doesn’t

delegitimize a congressional decision to empower consumers

14

to take possible country-specific differences in safety

practices into account. Nor does such an agency belief

undercut the economy-wide benefits of confining the market

impact of a disease outbreak.

Having determined that the interest served by the

disclosure mandate is adequate, what remains is to assess the

relationship between the government’s identified means and

its chosen ends. Under Central Hudson, we would determine

whether “the regulatory technique [is] in proportion to [the]

interest,” an inquiry comprised of assessing whether the

chosen means “directly advance[s] the state interest involved”

and whether it is narrowly tailored to serve that end. Central

Hudson, 447 U.S. at 564; Fox, 492 U.S. at 480. Zauderer’s

method of evaluating fit differs in wording, though perhaps

not significantly in substance, at least on these facts.

When the Supreme Court has analyzed Central Hudson’s

“directly advance” requirement, it has commonly required

evidence of a measure’s effectiveness. See Edenfield, 507

U.S. at 770-71. But as the Court recognized in Zauderer, such

evidentiary parsing is hardly necessary when the government

uses a disclosure mandate to achieve a goal of informing

consumers about a particular product trait, assuming of course

that the reason for informing consumers qualifies as an

adequate interest. 471 U.S. at 650; see also Milavetz, 559

U.S. at 249 (referring to Zauderer as providing for “less

exacting scrutiny”). Zauderer, like the doctrine of res ipsa

loquitur, identifies specific circumstances where a party

carries part of its evidentiary burden in a way different from

the customary one. See, e.g., Bell v. May Dep’t Stores Co.,

866 F.2d 452, 455-56 (D.C. Cir. 1989). There, a plaintiff

proves negligence by meeting the specified criteria (such as

proving the defendant’s exclusive control over the agency

causing the injury); here, by acting only through a reasonably

crafted disclosure mandate, the government meets its burden

15

of showing that the mandate advances its interest in making

the “purely factual and uncontroversial information”

accessible to the recipients. Of course to match Zauderer

logically, the disclosure mandated must relate to the good or

service offered by the regulated party, a link that in Zauderer

itself was inherent in the facts, as the disclosure mandate

necessarily related to such goods or services. See Zauderer,

471 U.S. at 651 (acknowledging that the disclosure mandate

involved “purely factual and uncontroversial information

about the terms under which [the] services will be available”).

For purposes of this case, we need not decide on the precise

scope or character of that relationship.

The self-evident tendency of a disclosure mandate to

assure that recipients get the mandated information may in

part explain why, where that is the goal, many such mandates

have persisted for decades without anyone questioning their

constitutionality. In this long-lived group have been not only

country-of-origin labels but also many other routine disclosure

mandates about product attributes, including, for instance,

disclosures of fiber content, 16 C.F.R. pt. 303, care

instructions for clothing items, 16 C.F.R. pt. 423, and listing

of ingredients, 21 C.F.R. § 101.4.

Notwithstanding the reference to “narrow tailoring,” the

Court has made clear that the government’s burden on the

final Central Hudson factor is to show a “reasonable fit,” see

Fox, 492 U.S. at 480, or a “reasonable proportion,” see

Edenfield, 507 U.S. at 767, between means and ends. To the

extent that the government’s interest is in assuring that

consumers receive particular information (as it plainly is when

mandating disclosures that correct deception), the means-end

fit is self-evidently satisfied when the government acts only

through a reasonably crafted mandate to disclose “purely

factual and uncontroversial information” about attributes of

the product or service being offered. In other words, this

16

particular method of achieving a government interest will

almost always demonstrate a reasonable means-ends

relationship, absent a showing that the disclosure is “unduly

burdensome” in a way that “chill[s] protected commercial

speech,” id. at 651.

Thus, to the extent that the pre-conditions to application

of Zauderer warrant inferences that the mandate will “directly

advance” the government’s interest and show a “reasonable

fit” between means and ends, one could think of Zauderer

largely as “an application of Central Hudson, where several

of Central Hudson’s elements have already been established.”

AMI Supplemental Br. at 9.

In this case, the criteria triggering the application of

Zauderer are either unchallenged or substantially

unchallenged. The decision requires the disclosures to be of

“purely factual and uncontroversial information” about the

good or service being offered. Zauderer, 471 U.S. at 651.

AMI does not contest that country-of-origin labeling qualifies

as factual, and the facts conveyed are directly informative of

intrinsic characteristics of the product AMI is selling.

As to whether it is “controversial,” AMI objected to the

word “slaughter” in its reply brief. Though it seems a plain,

blunt word for a plain, blunt action, we can understand a claim

that “slaughter,” used on a product of any origin, might

convey a certain innuendo. But we need not address such a

claim because the 2013 rule allows retailers to use the term

“harvested” instead, 78 Fed. Reg. at 31,368/2, and AMI has

posed no objection to that. And AMI does not disagree with

the truth of the facts required to be disclosed, so there is no

claim that they are controversial in that sense.

We also do not understand country-of-origin labeling to

be controversial in the sense that it communicates a message

17

that is controversial for some reason other than dispute about

simple factual accuracy. Cf. Nat’l Ass’n of Mfrs. v. SEC, 748

F.3d at 371 (questioning but not deciding whether the

information mandated was factual and uncontroversial).

Leaving aside the possibility that some required factual

disclosures could be so one-sided or incomplete that they

would not qualify as “factual and uncontroversial,” cf. Nat’l

Ass’n of Mfrs. v. NLRB, 717 F.3d at 958 (describing one

party’s argument that disclosures were “one-sided . . .

favoring unionization”), country-of-origin facts are not of that

type. AMI does not suggest anything controversial about the

message that its members are required to express.

Nor does the mandate run afoul of the Court’s warning

that Zauderer does not leave the state “free to require

corporations to carry the messages of third parties, where the

messages themselves are biased against or are expressly

contrary to the corporation’s views.” Pacific Gas & Electric

Co. v. Public Utilities Commission, 475 U.S. 1, 15-16 n.12

(1986) (plurality opinion).

Finally, though it may be obvious, we note that Zauderer

cannot justify a disclosure so burdensome that it essentially

operates as a restriction on constitutionally protected speech,

as in Ibanez v. Florida Department of Business and

Professional Regulation, 512 U.S. 136, 146-47 (1994), where

a required disclaimer was so detailed that it “effectively

rule[d] out notation of the ‘specialist’ designation on a

business card or letterhead, or in a yellow pages listing.” Nor

can it sustain mandates that “chill[] protected commercial

speech.” Zauderer, 471 U.S. at 651. AMI has made no claim

of either of these consequences.

Accordingly we answer affirmatively the general question

of whether “government interests in addition to correcting

deception,” American Meat Inst. v. USDA, 746 F.3d 1065,

18

1073 n.1 (D.C. Cir. 2014), can be invoked to sustain a

disclosure mandate under Zauderer, and specifically find the

interests invoked here to be sufficient. We reinstate the

judgment and leave untouched the opinion of the panel with

respect to the remaining issues on appeal.

So ordered.

ROGERS, Circuit Judge, concurring in part. Although I join

much of the court’s opinion, I write separately to disassociate

myself from the suggested reformulation of the separate

standards for First Amendment protection of commercial speech

in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626

(1985), and Central Hudson Gas & Electric Corp. v. Public

Service Commission of New York, 447 U.S. 557 (1980). The en

banc court defined the issue before it as whether the commercial

disclosure standard of Zauderer applies only when the

government’s interest is in preventing deception. See Order

(Apr. 4, 2014). Because the court holds Zauderer is not so

limited, and that the governmental interest is substantial, see Op.

at 6–14, there is no occasion today to speak more broadly.

Viewing Zauderer as simply an application of Central Hudson

to special circumstances, as AMI has suggested to the en banc

court, see AMI Supp. Br. 8–11, finds support in neither Supreme

Court precedent nor the precedent of this court or our sister

circuits. Although the en banc court stops short of endorsing

this reformulation, stating only that “one could think of

Zauderer largely as an application of Central Hudson,” Op. at

16 (citation and internal quotation mark omitted), blurring the

lines between the standards portends unnecessary confusion

absent further instruction from the Supreme Court.

The reformulation of the standards (as well as the dissent’s

approach, see dissenting opinion of Judge Brown, joined by

Judge Henderson, at 15–17), appears to contravene the Supreme

Court’s rationale in Zauderer and the purposes served by First

Amendment protection of commercial speech. Under the

Central Hudson standard, in reviewing restrictions on lawful,

non-misleading commercial speech, the Supreme Court

instructed that a court must determine “whether the asserted

governmental interest is substantial[,] . . . whether the regulation

directly advances the governmental interest asserted, and

whether it is not more extensive than is necessary to serve that

interest.” 447 U.S. at 566. But in Zauderer, although the Court

2

began its analysis discussing both speech restrictions and a

disclosure requirement by referring to the standard under

Central Hudson, see 471 U.S. at 638, when the Court analyzed

the challenged disclosure requirement it rejected the argument

that the government needed to show direct advancement of its

interest, as review under Central Hudson would have required,

see id. at 650; Central Hudson, 447 U.S. at 566. The Court

instructed in analyzing the disclosure requirement that it suffices

instead to determine whether the “disclosure requirements are

reasonably related to the State’s interest in preventing deception

of consumers.” Zauderer, 471 U.S. at 651. The Court explained

that “disclosure requirements trench much more narrowly on an

advertiser’s interests than do flat prohibitions on speech,” id.,

indicating thereby that the Court was not tracing a shortcut

through Central Hudson but defining a category in which the

interests at stake were less threatened. In applying Zauderer, the

Court in Milavetz, Gallop & Milavetz, P.A. v. United States, 559

U.S. 229 (2010), concluded that mandated disclosure

requirements for professionals assisting consumers with

bankruptcy were subject to the “less exacting scrutiny described

in Zauderer,” id. at 249, and did not violate the First

Amendment, see id. at 249–50, again treating Zauderer as

establishing a separate level of inquiry. See also id. at 255

(Thomas, J., concurring in part and concurring in the judgment)

(describing Zauderer as “a still lower standard of scrutiny”).

Fairly understood, the Supreme Court’s analysis of the

disclosure requirement in Zauderer does not reformulate the

Central Hudson standard but rather establishes a different

standard based on the “material differences between disclosure

requirements and outright prohibitions on speech.” 471 U.S. at

650. Similarly, in 44 Liquormart, Inc. v. Rhode Island, 517 U.S.

484 (1996), the Court explained that “[w]hen a State regulates

commercial messages to protect consumers from misleading,

deceptive, or aggressive sales practices, or requires the

3

disclosure of beneficial consumer information, the purpose of its

regulation is consistent with the reasons for according

constitutional protection to commercial speech and therefore

justifies less than strict review.” Id. at 501 (plurality opinion).

This is consistent with the Court’s longstanding focus, in the

commercial speech area, on the “consumer’s interest in the free

flow of commercial information,” Va. State Bd. of Pharm. v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 763 (1976), and

its “indispensable” role in “the proper allocation of resources in

a free enterprise system,” id. at 765. As our sister circuits have

held in applying the Zauderer standard, the government’s

imposition of a commercial disclosure requirement involving

“accurate, factual, commercial information does not offend the

core First Amendment values of promoting efficient exchange

of information or protecting individual liberty interests.” Nat’l

Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 114 (2d Cir. 2001).

Such disclosure furthers, rather than hinders, the First

Amendment goal of the discovery of truth and

contributes to the efficiency of the “marketplace of

ideas.” Protection of the robust and free flow of

accurate information is the principal First Amendment

justification for protecting commercial speech, and

requiring disclosure of truthful information promotes

that goal. In such a case, then, less exacting scrutiny is

required than where truthful, nonmisleading

commercial speech is restricted.

Id. (citations omitted); see also Pharm. Care Mgmt. Ass’n v.

Rowe, 429 F.3d 294, 316 (1st Cir. 2005) (controlling opinion of

Boudin, C.J., and Dyk, J.); Robert Post, The Constitutional

Status of Commercial Speech, 48 U.C.L.A. L. REV. 1, 26–28

(2000).

The en banc court’s holding that Zauderer applies to

4

government disclosure interests beyond preventing deception

acknowledges that the First Amendment values underlying

protection of commercial speech naturally lead to a distinction

between disclosures and restrictions, but it appears not to

acknowledge the full implications of the distinction: Zauderer’s

conceptual framework is what drives not only its application to

disclosures serving other governmental interests, but also its less

rigorous level of scrutiny. The dissent’s analysis fails to

acknowledge that Zauderer’s holding with regard to the

disclosure requirement rested primarily on this difference

between disclosures and restrictions, not on the risk of

deception. Yet this court and our sister circuits have understood

the Supreme Court to have established distinct standards for

analyzing First Amendment challenges to government-imposed

commercial restrictions and disclosures. In R.J. Reynolds

Tobacco Co. v. FDA, 696 F.3d 1205, 1212 (D.C. Cir. 2012), the

court distinguished Central Hudson review from Zauderer and

likened the latter to rational-basis review. In Spirit Airlines, Inc.

v. DOT, 687 F.3d 403 (D.C. Cir. 2012), the court stated that

“[d]isclosure requirements . . . are not the kind of limitations

that the Court refers to when invoking the Central Hudson

standard of review,” id. at 413, and applied Zauderer as a less

stringent standard, see id. at 411–13. Indeed, the understanding

that Central Hudson and Zauderer involve distinct standards is

evident from the en banc order in the instant case. See Order

(Apr. 4, 2014) (instructing the parties to address “[w]hether,

under the First Amendment, judicial review of mandatory

disclosure of ‘purely factual and uncontroversial’ commercial

information, compelled for reasons other than preventing

deception, can properly proceed under Zauderer . . . , or whether

such compelled disclosure is subject to review under Central

Hudson . . .”). The opinions of our sister circuits are to the same

effect, that restrictions and disclosures are factually distinct and,

due to their different impacts on First Amendment interests, are

governed by different standards. See, e.g., Disc. Tobacco City

5

& Lottery, Inc. v. United States, 674 F.3d 509, 554–55 (6th Cir.

2012) (controlling opinion of Stranch, J.); N.Y. State Rest. Ass’n

v. N.Y. City Bd. of Health, 556 F.3d 114, 132–33 (2d Cir. 2009);

Pharm. Care Mgmt. Ass’n, 429 F.3d at 316 (1st Cir.); Nat’l Elec.

Mfrs. Ass’n, 272 F.3d at 113–15 (2d Cir.). But see United States

v. Wenger, 427 F.3d 840, 849 (10th Cir. 2005).

Even assuming that AMI’s proposed reformulation of the

Central Hudson and Zauderer standards has little impact on the

outcome of the First Amendment challenge here, blurring the

lines between the two standards may sow confusion where, for

example, the focus is not on the adequacy of the government

interest, as here, but instead on the evidentiary support for, or

the “fit” of, the disclosure requirement. Absent further

instruction from the Supreme Court or consideration of the

question when it is necessary to our decision, the court has no

occasion to veer from the Supreme Court’s articulation of the

standards in Central Hudson and Zauderer.

KAVANAUGH, Circuit Judge, concurring in the judgment:

May the U.S. Government require an imported Chinese-made

product to be labeled “Made in China”? For many readers,

the question probably answers itself: Yes. This case requires

us to explain why that is so, in particular why such a

requirement passes muster under the First Amendment. The

precise First Amendment issue before us concerns a federal

law that requires country-of-origin labels for meat and other

food products. Country-of-origin labels are of course familiar

to American consumers. Made in America. Made in Mexico.

Made in China. And so on. For many decades, Congress has

mandated such country-of-origin labels for a variety of

products. I agree with the majority opinion that the First

Amendment does not bar those longstanding and

commonplace country-of-origin labeling requirements.

As a starting point, all agree that the First Amendment

imposes stringent limits on the Government’s authority to

either restrict or compel speech by private citizens and

organizations. See Texas v. Johnson, 491 U.S. 397 (1989);

Wooley v. Maynard, 430 U.S. 705 (1977); West Virginia State

Board of Education v. Barnette, 319 U.S. 624 (1943). This

case involves commercial speech. The First Amendment

protects commercial speech, and regulations of commercial

speech are analyzed under the Supreme Court’s Central

Hudson framework. To justify laws regulating commercial

speech, the Government must (i) identify a substantial

governmental interest and (ii) demonstrate a sufficient fit

between the law’s requirements and that substantial

governmental interest. See Central Hudson Gas & Electric

Corp. v. Public Service Commission of New York, 447 U.S.

557, 566 (1980).

I will address in turn how those two basic Central

Hudson requirements apply to this case.

2

First, under Central Hudson, the Government must

identify a substantial governmental interest that is served by

the law in question. Since its decision in Central Hudson, the

Supreme Court has not stated that something less than a

“substantial” governmental interest would justify either a

restriction on commercial speech or a compelled commercial

disclosure. And likewise, the majority opinion today does not

say that a governmental interest that is less than substantial

would suffice to justify a compelled commercial disclosure.

What interests qualify as sufficiently substantial to justify

the infringement on the speaker’s First Amendment autonomy

that results from a compelled commercial disclosure? Here,

as elsewhere in First Amendment free-speech law, history and

tradition are reliable guides. See Brown v. Entertainment

Merchants Association, 131 S. Ct. 2729, 2734 (2011) (“a long

(if heretofore unrecognized) tradition of proscription” may

sometimes justify restrictions on speech); Republican Party of

Minnesota v. White, 536 U.S. 765, 785 (2002) (“It is true that

a universal and long-established tradition of prohibiting

certain conduct creates a strong presumption that the

prohibition is constitutional.”) (internal quotation marks

omitted); Burson v. Freeman, 504 U.S. 191, 200-06 (1992)

(plurality opinion) (history of state restrictions on

electioneering supported conclusion that such a restriction

was necessary to serve state’s compelling interests); see also

McIntyre v. Ohio Elections Commission, 514 U.S. 334, 375-

78 (1995) (Scalia, J., dissenting) (“Where the meaning of a

constitutional text (such as ‘the freedom of speech’) is

unclear, the widespread and long-accepted practices of the

American people are the best indication of what fundamental

beliefs it was intended to enshrine.”). The Government has

long required commercial disclosures to prevent consumer

deception or to ensure consumer health or safety. Those

interests explain and justify the compelled commercial

3

disclosures that are common and familiar to American

consumers, such as nutrition labels and health warnings. See,

e.g., R.J. Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1211

(D.C. Cir. 2012) (noting that there was no dispute about

Congress’s authority to require health warnings on cigarette

packages).

But the Government cannot advance a traditional anti-

deception, health, or safety interest in this case because a

country-of-origin disclosure requirement obviously does not

serve those interests. Rather, the Government broadly

contends that it has a substantial interest in “providing

consumers with information.” Tr. of Oral Arg. at 41. For

Central Hudson purposes, however, it is plainly not enough

for the Government to say simply that it has a substantial

interest in giving consumers information. After all, that

would be true of any and all disclosure requirements. That

circular formulation would drain the Central Hudson test of

any meaning in the context of compelled commercial

disclosures. See R.J. Reynolds, 696 F.3d at 1221. Not

surprisingly, governments (federal, state, and local) would

love to have such a free pass to spread their preferred

messages on the backs of others. But as the Second Circuit

has stated, “Were consumer interest alone sufficient, there is

no end to the information that states could require

manufacturers to disclose about their production methods.”

International Dairy Foods Association v. Amestoy, 92 F.3d

67, 74 (2d Cir. 1996). Some consumers might want to know

whether their U.S.-made product was made by U.S. citizens

and not by illegal immigrants. Some consumers might want

to know whether a doctor has ever performed an abortion.

Some consumers might want to know the political affiliation

of a business’s owners. These are not far-fetched

hypotheticals, particularly at the state or local level. Do such

consumer desires suffice to justify compelled commercial

4

disclosures of such information on a product or in an

advertisement? I think not, and history and tradition provide

no support for that kind of free-wheeling government power

to mandate compelled commercial disclosures. I agree with

this Court’s rejection of such an undifferentiated

governmental interest in R.J. Reynolds. And I agree with the

Second Circuit’s statement in Amestoy that “consumer

curiosity alone is not a strong enough state interest” to sustain

a compelled commercial disclosure. Id. The majority

opinion today properly does not embrace the Government’s

broad argument.

Although the Government’s broad argument is meritless,

country-of-origin labeling is justified by the Government’s

historically rooted interest in supporting American

manufacturers, farmers, and ranchers as they compete with

foreign manufacturers, farmers, and ranchers. Since the early

days of the Republic, numerous U.S. laws have sought to

further that interest, sometimes overtly and sometimes subtly.

Although economists debate whether various kinds of

protectionist legislation help U.S. consumers and the overall

U.S. economy, there is no doubt that Congress has long

sought to support and promote various U.S. industries against

their foreign competition. How is that interest implicated by

country-of-origin labeling? Country-of-origin labeling, it is

widely understood, causes many American consumers (for a

variety of reasons) to buy a higher percentage of American-

made products, which in turn helps American manufacturers,

farmers, and ranchers as compared to foreign manufacturers,

farmers, and ranchers. That is why Congress has long

mandated country-of-origin disclosures for certain products.

See, e.g., United States v. Ury, 106 F.2d 28, 29 (2d Cir. 1939)

(purpose of early country-of-origin labeling requirements

“was to apprise the public of the foreign origin and thus to

confer an advantage on domestic producers of competing

5

goods”). That historical pedigree is critical for First

Amendment purposes and demonstrates that the

Government’s interest here is substantial. The majority

opinion properly relies on the history of country-of-origin

labeling laws as a basis for finding that the Government has a

substantial interest in this case.

That said, one wrinkle in this case is whether the

Government has actually asserted an interest in supporting

American farmers and ranchers in order to justify this

country-of-origin labeling requirement for meat and other

food products. Whether the Government has asserted such an

interest matters because Central Hudson requires that the

Government articulate the interests it seeks to advance. See

Edenfield v. Fane, 507 U.S. 761, 768 (1993). And the

Executive Branch has refrained during this litigation from

expressly articulating its clear interest in supporting American

farmers and ranchers in order to justify this law, apparently

because of the international repercussions that might ensue.

But the interest here is obvious, even if unarticulated by the

Executive Branch for reasons of international comity. And

more to the point for Central Hudson purposes, Members of

Congress did articulate the interest in supporting American

farmers and ranchers when Congress enacted this country-of-

origin labeling law. See, e.g., 148 Cong. Rec. 5492-93, 6884-

85 (2002); see also id. at 1181. And Congress’s articulation

of the interest suffices under Central Hudson. Cf. Turner

Broadcasting System, Inc. v. FCC, 512 U.S. 622, 662 (1994)

(looking to statutory findings and legislative history to discern

the governmental interests served); Metromedia, Inc. v. City

of San Diego, 453 U.S. 490, 493 (1981) (plurality opinion)

(looking to text of city’s ordinance to discern the

governmental interests served).

6

In short, the Government has a substantial interest in this

case in supporting American farmers and ranchers against

their foreign competitors.

The second question under Central Hudson concerns the

fit between the disclosure requirement and the Government’s

interest – as plaintiff AMI succinctly puts it, whether the

disclosure requirement is “tailored in a reasonable manner.”

AMI Supplemental Br. at 16 (quoting Edenfield, 507 U.S. at

767); see also National Association of Manufacturers v. SEC,

748 F.3d 359, 372 (D.C. Cir. 2014) (“must be a reasonable fit

between means and ends” under Central Hudson) (internal

quotation marks omitted).

As I read it, the Supreme Court’s decision in Zauderer

applied the Central Hudson “tailored in a reasonable manner”

requirement to compelled commercial disclosures. At the

outset of its opinion, the Zauderer Court described the general

Central Hudson framework in detail. And then the Court

stated: “we must apply the teachings of these cases,”

including Central Hudson, to the three separate state

regulations of attorney advertising at issue, including

“disclosure requirements relating to the terms of contingent

fees.” Zauderer v. Office of Disciplinary Counsel of Supreme

Court of Ohio, 471 U.S. 626, 638 (1985). In applying the

teachings of Central Hudson to the state disclosure

requirement, the Zauderer Court required that such

mandatory disclosures be “purely factual,” “uncontroversial,”

not “unduly burdensome,” and “reasonably related to” the

Government’s interest. Id. at 651. So Zauderer is best read

simply as an application of Central Hudson, not a different

test altogether. In other words, Zauderer tells us what

Central Hudson’s “tailored in a reasonable manner” standard

means in the context of compelled commercial disclosures:

The disclosure must be purely factual, uncontroversial, not

7

unduly burdensome, and reasonably related to the

Government’s interest.1

It is important to underscore that those Zauderer fit

requirements are far more stringent than mere rational basis

review. When the Supreme Court applies rational basis

review, it does not attach a host of requirements of the kind

prescribed by Zauderer. Rational basis review is extremely

deferential and in this context would undoubtedly tolerate

government mandates of moral or policy-laden messages, of

controversial messages, of burdensome labels, of disclosures

that are only indirectly related to the Government’s interests.

Zauderer tolerates none of that. Zauderer tightly limits

mandatory disclosures to a very narrow class that meets the

various Zauderer requirements. So to the extent that some

courts, advocates, and commentators have portrayed a choice

between the “tough Central Hudson standard” and the

“lenient Zauderer standard,” I see that as a false choice. As I

read it, Zauderer applied and elaborated on Central Hudson’s

“tailored in a reasonable manner” requirement and established

a demanding set of requirements that the Government must

1

To state what is probably obvious, the compelled disclosure

must be a disclosure about the product or service in question to be

justified under Central Hudson and Zauderer. The First

Amendment does not tolerate a government effort to compel

disclosures unrelated to the product or service – for example, a

compelled disclosure on all food packages (not just cigarette

packages) that cigarette smoking causes cancer. The majority

opinion, as I read it, agrees with that principle. See Maj. Op. at 15

(“Of course to match Zauderer logically, the disclosure mandated

must relate to the good or service offered by the regulated

party . . . .”); see also Zauderer v. Office of Disciplinary Counsel of

Supreme Court of Ohio, 471 U.S. 626, 651 (1985) (state required

an attorney’s advertising to disclose “information about the terms

under which his services will be available”).

8

meet to justify a compelled commercial disclosure. The

majority opinion properly does not equate Zauderer to mere

rational basis review and properly insists that the mandatory

disclosure here must meet all of the various Zauderer

requirements. And the majority opinion and I agree on the

following: To justify a compelled commercial disclosure,

assuming the Government articulates a substantial

governmental interest, the Government must show that the

disclosure is purely factual, uncontroversial, not unduly

burdensome, and reasonably related to the Government’s

interest.2

In this case, as the majority opinion properly concludes,

those stringent Zauderer fit requirements are met. The

country-of-origin labeling requirement at issue here is purely

factual, is not unduly burdensome, and as explained above is

2

Although I agree with the results and most of the reasoning

of R.J. Reynolds and National Association of Manufacturers, I

disagree with those cases’ description of Zauderer as mere rational

basis review. See National Association of Manufacturers v. SEC,

748 F.3d 359, 370-71 (D.C. Cir. 2014) (characterizing Zauderer as

“rational basis review”); R.J. Reynolds Tobacco Co. v. FDA, 696

F.3d 1205, 1212 (D.C. Cir. 2012) (Zauderer review is “akin to

rational-basis review”). That description of Zauderer in turn led

those cases to apply the Central Hudson test rather than the

Zauderer test to the compelled commercial disclosures at issue in

those cases. To reiterate, however, I see the choice between

Zauderer and Central Hudson as a false choice because it is based

on a mistaken premise, in my view. Zauderer applied Central

Hudson’s fit prongs to this compelled commercial speech context

and set forth a variety of stringent requirements far more

demanding than mere rational basis review. The majority opinion

today properly recognizes that Zauderer did not embrace mere

rational basis review, and the majority opinion thus disavows that

aspect of R.J. Reynolds and National Association of Manufacturers

without disturbing the results of those cases.

9

reasonably related to the Government’s longstanding interest

in supporting American farmers and ranchers. To be sure,

determining whether a disclosure is “uncontroversial” may be

difficult in some compelled commercial speech cases, in part

because it is unclear how we should assess and what we

should examine to determine whether a mandatory disclosure

is controversial. But regardless of how the “uncontroversial”

requirement might play out in other cases, the issue poses

little difficulty here. Unlike the mandated disclosures at issue

in R.J. Reynolds or National Association of Manufacturers,

for example, a country-of-origin label cannot be considered

“controversial” given the factually straightforward, even-

handed, and readily understood nature of the information, as

well as the historical pedigree of this specific kind of

disclosure requirement. Cf. National Association of

Manufacturers, 748 F.3d at 371 (disclosure requirement that

in essence compelled “an issuer to confess blood on its

hands”); R.J. Reynolds, 696 F.3d at 1216-17 (disclosure

requirements that compelled the display of “inflammatory

images” and constituted “unabashed attempts to evoke

emotion” and “browbeat customers”).

***

For those reasons, I would uphold this country-of-origin

labeling requirement. As I read it, the majority opinion is

consistent with my analysis. But I thought it important to

spell out each step of my analysis in greater detail. Bottom

line: I agree with the majority opinion that we should affirm

the judgment of the District Court.

KAREN LECRAFT HENDERSON, Circuit Judge, dissenting:

I agree with Judge Brown that the en banc majority is

wrong on the merits and join fully her well-reasoned and

compelling dissent. But, for the life of me, I do not

understand how we got to the en banc stage in this case. As

Judge Brown notes, the original panel “was wrong to

contradict R.J. Reynolds”—and not solely because the panel

was wrong on the merits. See Dissent at 11 (citing R.J.

Reynolds Tobacco Co. v. FDA, 696 F.3d 1205, 1213 (D.C.

Cir. 2012)). The panel was also wrong for the simple reason

that its merits decision—whether or not correct—did indeed

“contradict” our decision in R.J. Reynolds and therefore

should not have issued.

One of our court’s most fundamental governing

principles is the “law of the circuit doctrine” which decrees

that the decision of a three-judge panel of the court “is ‘the

decision of the court.’ ” LaShawn v. Barry, 87 F.3d 1389,

1395 (D.C. Cir. 1996) (en banc) (quoting Revision Notes to

28 U.S.C. § 46). “One three-judge panel, therefore, does not

have the authority to overrule another three-judge panel of the

court.” Id. Yet, inexplicably, this is what happened here.

In R.J. Reynolds, we vacated the Food and Drug

Administration’s final rule establishing mandatory graphics

warnings on cigarette packages. In so doing, we rejected two

‘‘narrow and well-understood exceptions to the general rule

that content based speech regulations—including compelled

speech—are subject to strict scrutiny.” R.J. Reynolds, 696

F.3d at 1212 (quotation marks omitted). The first of the

exceptions—which is at issue here—covers “ ‘purely factual

and uncontroversial’ disclosures [that] are ‘reasonably related

to the State’s interest in preventing deception of consumers,’

provided the requirements are not ‘unjustified or unduly

burdensome.’ ” Id. (quoting Zauderer v. Office of

Disciplinary Counsel, 471 U.S. 626, 651 (1985)). In R.J.

Reynolds, the majority found the Zauderer standard

2

inapplicable to the graphics warning requirement because “by

its own terms, Zauderer’s holding is limited to cases in which

disclosure requirements are ‘reasonably related to the State’s

interest in preventing deception of consumers.’ ” Id. at 1213

(quoting Zauderer, 471 U.S. at 651); see also id. at 1214

(“[T]he government could not seek review under the lenient

Zauderer standard absent a showing that the advertisement at

issue would likely mislead consumers.”); id. (“Zauderer,

Ibanez, and Milavetz thus establish that a disclosure

requirement is only appropriate if the government shows that,

absent a warning, there is a . . . danger that an advertisement

will mislead consumers.”); id. at 1214-15 (“[I]n the absence

of any congressional findings on the misleading nature of

cigarette packaging itself, there is no justification under

Zauderer for the graphic warnings.”); see also Nat’l Ass’n of

Mfrs. v. NLRB, 717 F.3d 947, 959 n.18 (D.C. Cir. 2013) (“In a

footnote to its brief, the Board states that its rule satisfies

Zauderer . . ., but it does not explain why that decision has

even the slightest bearing on this case. Under Zauderer, the

government may, consistently with the First Amendment,

require a party to a commercial transaction to make

disclosures in order to prevent that party from deceiving its

customers.” (citing R.J. Reynolds, 696 F.3d at 1215)).

Given its repeated and emphatic reliance on the limited

applicability of the Zauderer standard—to language involving

deception—the R.J.Reynolds majority plainly considered the

inapplicability of Zauderer as “integral” and “necessary” to

its decision,” that is to say, a “holding.” See Aamer v.

Obama, 742 F.3d 1023, 1033 (D.C. Cir. 2014) (determination

that was “integral to our ultimate disposition of [a] case . . .

constitutes binding precedent”); Cross v. Harris, 418 F.2d

1095, 1105 n.64 (D.C. Cir. 1969) (“The distinction between

holding and dictum . . . turns on whether the court, in stating

its opinion on the point, believed it necessary to decide the

question or was simply using it by way of illustration of the

3

case at hand.”). Nor was the importance of the majority’s

reading of Zauderer lost on the dissenting judge. See R.J.

Reynolds, 696 F.3d at 1223 (Rogers, J., dissenting) (“Even

treating Zauderer’s ‘less exacting scrutiny’ as limited to

disclosure requirements serving a governmental interest in

preventing consumer deception, the voluminous findings of

our own courts . . . are more than adequate to substantiate that

interest”) (emphasis added); id. at 1227 n.6 (noting “[a]s other

circuits have recognized, in Zauderer the Supreme Court

appears simply to have held that a government interest in

protecting consumers from possible deception is sufficient to

support a disclosure requirement—not that this particular

interest is necessary to support such a requirement” but also

concluding “[i]n view of the likelihood of consumer

confusion or deception shown here, there is no need to

determine whether the scope of Zauderer encompasses other

government interests”) (emphasis in original).

Nonetheless, the original panel here decided that

“Zauderer is best read as applying not only to mandates

aimed at curing deception but also to ones for other purposes,

and that neither Reynolds nor [National Association of

Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013)]

represents a holding to the contrary.” Am. Meat Inst. v. U.S.

Dep’t of Agric. (AMI I), 746 F.3d 1065, 1073 (D.C. Cir.

2014), vacated, 2014 WL 2619836 (D.C. Cir. Apr. 4, 2014)

(granting rehearing en banc). I find this conclusion untenable

given the centrality of the R.J. Reynolds majority’s limited

reading of Zauderer. Because that reading constituted part of

R.J. Reynolds’s holding, the “power” to overrule it could

properly “be exercised only by the full court, either through

an in [sic] banc decision or pursuant to the more informal

practice adopted in Irons v. Diamond, 670 F.2d 265, 268 n.11

(D.C. Cir. 1981),” LaShawn, 87 F.3d at 1395 (citation

omitted). The panel nonetheless issued its own decision

overruling R.J. Reynolds’s Zauderer holding instead of either

4

seeking full en banc hearing or inserting a proper Irons

footnote announcing, if obtained, the en banc court’s

unanimous endorsement of the opinion.*

*

That the panel forewent the Irons footnote procedure is not

surprising as none of the justifications therefor fits. Our written

policy, based on our accumulated case law, sets out four specific—

albeit non-exclusive—bases for an Irons footnote:

(1) resolving an apparent conflict in the prior

decisions of panels of the court;

(2) rejecting a prior statement of law which, although

arguably dictum, warrants express rejection to avoid

future confusion;

(3) overruling an old or obsolete decision which,

although still technically valid as precedent, has plainly

been rendered obsolete by subsequent legislation or other

developments; and

(4) overruling a more recent precedent which, due to

an intervening Supreme Court decision, or the combined

weight of authority from other circuits, a panel is

convinced is clearly an incorrect statement of current law.

Policy Statement on En Banc Endorsement of Panel Decisions at 1

(Jan. 17, 1996); see also In re Sealed Case, 181 F.3d 128, 145-46

(D.C. Cir. 1999) (Henderson, J., concurring). The only justification

that might conceivably apply here is the second—but given the R.J.

Reynolds majority’s repeated emphasis on Zauderer’s deception

limitation, I do not see how it qualifies as even “arguably dictum.”

While a panel retains discretion to “determine that a statement in a

prior decision was dictum, not requiring en banc action to reject,”

id. at 2-3, the panel here acknowledged it is “reasonable” to read

R.J. Reynolds’s treatment of Zauderer as a holding—see AMI I, 746

F.3d at 1073 n.1 (“We recognize that reasonable judges may read

Reynolds as holding that Zauderer can apply only where the

government’s interest is in correcting deception.”) (emphasis

added). Accordingly, the appropriate step under our procedure was

5

In sum, I do not understand how the panel opinion in this

case came to be. Its issuance is inconsistent with our law of

the circuit doctrine and runs counter to the principle of stare

decisis, which “ ‘demands that we abide by a recent decision

of one panel of this court unless the panel has withdrawn the

opinion or the court en banc has overruled it.’ ” In re Sealed

Case, 181 F.3d 128, 145 (D.C. Cir. 1999) (Henderson, J.,

concurring (quoting Brewster v. Commissioner, 607 F.2d

1369, 1373 (D.C. Cir. 1979)) (quotation marks omitted). I

need hardly add my hope that this case is an outlier; if not, we

risk adopting the habit of slapping the “dictum” label on any

holding that any two of us find inconvenient and thereby

replacing law of the circuit with law of the panel.

to include an Irons footnote rather than overruling R.J. Reynolds

outright.

BROWN, Circuit Judge, dissenting: Throughout oral

argument, AMI’s counsel repeatedly summarized the

analytical options before the en banc court:

[T]he bottom line is if Central Hudson applies, [AMI]

should prevail; if Zauderer applies only to deception,

[AMI] should prevail; if Zauderer applies only to

consumer protection, health and safety, and deception,

[AMI] should prevail. The only way [AMI does not]

prevail is if this Court concludes that Zauderer applies to

any interest, no matter how articulated, no matter how

speculative.

Tr. of Oral Arg. at 39, Am. Meat. Inst. v. USDA, No. 13-5281

(D.C. Cir. May 19, 2014) (en banc). No doubt counsel

thought stating such an outrageous proposition would be

sufficient to refute it. But, astonishing as it may be to First

Amendment scholars, the court today doubles down on that

extraordinary result. The court holds “Zauderer . . . reach[es]

beyond problems of deception, sufficiently to encompass”

factual and noncontroversial disclosure mandates aimed at

providing more information to some consumers. Maj. Op. at

3. As a result, the fundamental First Amendment right not to

be coerced or compelled to say what one would not say

voluntarily is now demoted to a mere tautology: “[B]y acting

. . . through a reasonably crafted disclosure mandate, the

government meets its burden of showing that the mandate

advances its interest in making the ‘purely factual and

uncontroversial information’ accessible to the recipients.”

Maj. Op. at 15. In other words, a business owner no longer

has a constitutionally protected right to refrain from speaking,

as long as the government wants to use the company’s

product to convey “purely factual and uncontroversial”

information.

In so finding, the court today ignores the plain words of

Zauderer’s text and disregards its historical context; both the

2

text and history of the case emphasize the government’s

unique interest in preventing commercial deception. By

expanding Zauderer beyond deception, the court has now

created a standard that is actually even more relaxed than

rational basis review; essentially, the new standard for

compelled commercial disclosures—or perhaps even all

commercial speech restrictions—thus becomes rational basis

review minus any legitimate justification. Instead of

requiring the government to justify its regulations, the court

searches sua sponte through the underlying statute’s

legislative record, desperately seeking justifications while

ignoring the agency’s actual rulemaking record. Instead of

relying on the precise interests articulated by the government

in this case, the court tries to reclaim and rehabilitate

rationales for the rule the agency has consistently discredited

and denied: health and safety and domestic protectionism.

Even rational basis review is less dismissive of constitutional

guarantees.

The court’s ardent reliance on the legislative record to

justify the rule, in lieu of the regulatory text itself or the

rulemaking record presented by the government, is baffling.

Though this case has a constitutional dimension, it challenges

an agency rulemaking. Ordinarily, that means our review is

limited to the record as the agency presented it, Camp v. Pitts,

411 U.S. 138, 142 (1973), and confined to considering the

agency’s rationale as the agency articulated it, SEC v.

Chenery, 332 U.S. 194, 196 (1947). But, tossing aside long-

standing administrative law principles is only the beginning of

the lengths to which the court goes to bust the mainspring of

commercial speech jurisprudence. What began as robust

protection from government coercion has now been reduced

to an eerie echo of a supermarket tabloid’s vacuous motto:

the government may compel citizens to provide, against their

will, whatever information “[i]nquiring minds want to know!”

3

I dissent.

I

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626

(1985), did not appear ex nihilo, nor can its analysis be read in

vacuo. Giving attention to all parts of the whole, and read in

its historical context, Zauderer’s meaning cannot rationally be

disputed. Only by plucking phrases from the analysis shorn

of all contextual clues and by pretending the case stands

completely outside the historical evolution of the Supreme

Court’s commercial speech doctrine can the court reach its

disingenuous conclusions: (1) Zauderer “does not give a

clear answer” to whether its principles apply more broadly to

disclosures serving governmental interests beyond curing

deception, Maj. Op. at 6; and (2) Zauderer “gives little

indication of what type of interest might suffice,” Maj. Op. at

9. If, as Jeremy Bentham once quipped, a fanciful argument

may be dismissed as “nonsense upon stilts,” the court’s

analysis in this case can best be described as delirium on a

pogo stick.

A

The court’s erratic and idiosyncratic parsing of

Zauderer’s text manages to create an impression of

impenetrable opacity where the ordinary reader would find

commendable clarity. Asserting that the “language with

which Zauderer justified its approach . . . sweeps far more

broadly than the interest in remedying deception,” the court

hinges its claims on just three scraps from Zauderer: a

sentence about “material differences,” a sentence buried in a

footnote, and the word “minimal.” See Maj. Op. at 7. Each

plucked out of context.

4

As Chief Judge Garland explained to government counsel

during oral argument, “If you’re going to rely on Zauderer,

you’ve got to take the whole thing.” Tr. of Oral Arg. at 51,

Am. Meat. Inst., No. 13-5281 (D.C. Cir. May 19, 2014) (en

banc). This is sound advice. Since the days of Chief Justice

John Marshall, appellate courts have recognized the folly of

lifting a general phrase or sentence out of an opinion and

applying it to an entirely different context. See, e.g., Cohens

v. Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821). The

Supreme Court recently affirmed that wisdom in Arkansas

Game & Fish Commission v. United States, 133 S. Ct. 511

(2012), where the Court recalled Marshall’s “sage observation

that ‘general expressions, in every opinion, are to be taken in

connection with the case in which those expressions are

used,’” id. at 520 (quoting Cohens, 19 U.S. (6 Wheat.) at

399). Zauderer is triggered by its context and is incoherent

when unmoored from the deception rationale.

In Zauderer, an attorney challenged Ohio’s restrictions

on lawyer advertising after he was disciplined for certain

allegedly misleading newspaper advertisements. Specifically,

when one advertisement promised clients would owe no legal

fees in cases without a recovery, the disciplinary office

complained the ad failed to follow regulations requiring

disclosure that clients still may be liable for costs in

unsuccessful claims. See Zauderer, 471 U.S. at 630–34.

First, the Supreme Court clarified both that the First

Amendment protects commercial speech, id. at 637–38, and

that it protects advertisers from compelled speech. Id. at 650–

51. However, the First Amendment does not shield deceptive,

false, or fraudulent speech that proposes a commercial

transaction. Id. at 638. But, where that deceptive advertising

could be cured by more speech, the government may choose

between requiring disclosure and directly prohibiting the

5

advertisement. Id. at 651. While there are “material

differences” between disclosure requirements and outright

prohibitions, compelled speech “may be as violative of the

First Amendment as [prohibited] speech,” and the government

faces a heavy burden to justify involuntary affirmation (being

forced to carry the government’s message). Id. at 650. After

reconfirming that the government may not attempt to

“prescribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion or force citizens” to

conform to the state’s assumptions, id. at 651, the Court then

contrasted the imposition of orthodoxy—prohibited by the

First Amendment—with Ohio’s regulation of deceptive

commercial advertising. When the purpose of compelling

factual information is to cure deception, the advertiser’s

“constitutionally protected interest . . . is minimal.” Id. To

avoid any possible confusion, the court succinctly

summarized: “[W]e hold that an advertiser’s rights are

adequately protected as long as disclosure requirements are

reasonably related to the State’s interest in preventing

deception of consumers.” Id. (emphasis added).

Crucial to the Court’s analysis was not just the difference

between disclosure and prohibition; it was also the difference

between disclosure in advertising and that advertisement’s

outright prohibition, given the state’s prerogative to prohibit

misleading commercial speech. The Court was absolutely

clear: “[B]ecause disclosure requirements trench much more

narrowly on an advertiser’s interests than do flat prohibitions

on speech, warnings or disclaimers might be appropriately

required in order to dissipate the possibility of consumer

confusion or deception.” Id. (emphasis added). In short, the

state’s option to require a curative disclosure cannot be

disconnected from its right to entirely prohibit deceptive,

fraudulent, or misleading commercial speech. Requiring an

advertiser to provide “somewhat more information than they

6

might otherwise be inclined to present,” id. at 650 (emphasis

added), is thus constitutionally permissible when the

government’s available alternative is to completely ban that

deceptive speech. Nowhere does Zauderer claim a

commercial speaker can be forced to speak factual and

noncontroversial information in the first instance. Instead, the

text emphasizes the interests of advertisers, i.e., those who

have already spoken. See, e.g., id. at 651 (noting minimal

constitutionally protected interest in “not providing any

particular factual information in . . . advertising”) (emphasis

added).1

Thus, even when the advertiser makes affirmative

claims and the basis for a curative disclosure is self-evident,

the advertiser still retains minimal First Amendment

protections. Conversely, when the government is not curing

deception, constitutional protections remain robust and

undiminished. That the compelled information must be

factual and noncontroversial is part of the government’s

burden. This characterization is not a trigger that transforms

every seller’s packaging into the government’s billboard.

Inexplicably, the court now upends the precise

constitutional hierarchy outlined in Zauderer by ignoring the

clear linkage between advertising, deception, and the state

interest in curing that deception, which forms the core of the

Supreme Court’s reasoning.

1

Accord United States v. United Foods, Inc., 533 U.S. 405, 416

(2001) (noting, in Zauderer, that the Court permitted

disclosure mandates for “attorneys who advertised by their

own choice” and made potentially misleading statements

(emphasis added)).

7

B

By parsing Zauderer in such a piecemeal fashion, this

court robs the decision of its internal consistency and strips it

of any historical context. The Framers resisted adding a Bill

of Rights to the Constitution because they feared the

elucidation of some rights would overshadow the telos

inherent in the Constitution as a whole. The Constitution of

liberty they conceived was premised on the natural law and

conceded the immanence of the first principle of that law—

that an adult human being, as a free moral agent, cannot be

coerced without good reason. At the same time, they

understood James Wilson’s observation that no one ever had a

natural right to do wrong. This is precisely the balance the

Supreme Court struck in its early opinions acknowledging

protection for commercial speech.

When the Supreme Court extended formal constitutional

protection to commercial speech, it emphasized that false or

misleading commercial speech remained unprotected. See

Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council,

Inc., 425 U.S. 748, 772 & n.24 (1976). Granting

constitutional protection to commercial speech did not

preclude regulation of false or deceptive advertising;

accordingly, the Court anticipated that the government might

“require that a commercial message appear in such a form, or

include such additional information, warnings, and

disclaimers, as are necessary to prevent its being deceptive.”

Id. (emphasis added). Sanctioning disclosure was not an

exception to the otherwise stringent protections of the First

Amendment; rather, it was the Court’s acknowledgement that

sellers of products had no right under our constitutional

regime to wrongly deceive consumers. Thus, the Court made

a sensible distinction between expression of opinion (which is

8

protected even if it is incorrect) and expression of commercial

fact, for which the state can require accuracy.

The court disregards the Supreme Court’s extraordinarily

consistent jurisprudence in this area, from Virginia Board to

Zauderer through the present day: the government may

regulate commercial speech to avoid misleading or confusing

consumers. While broad bans on nonmisleading commercial

speech were immediately suspect, the Court repeatedly

affirmed the narrow niche occupied by actual, inherently, and

potentially deceptive speech subject to government

regulation. See, e.g., Linmark Assocs., Inc. v. Willingboro

Twp., 431 U.S. 85, 98 (1977) (remarking “laws requiring

[false and misleading] signs to appear in such a form, or

include such additional information as is necessary to prevent

their being deceptive . . . would raise very different

constitutional questions” than the unconstitutional ban on all

“for sale” signs); Bates v. State Bar of Ariz., 433 U.S. 350,

375 (1977) (“[T]he bar retains the power to correct omissions

that have the effect of presenting an inaccurate picture . . . .”);

Bates, 433 U.S. at 383–84 (noting certain claims “not

susceptible of measurement or verification . . . may be so

likely to be misleading as to warrant restriction”); Bates, 433

U.S. at 383–84 (“We do not foreclose the possibility that

some limited supplementation, by way of warning or

disclaimer or the like, might be required of [an advertisement]

so as to assure that the consumer is not misled.”); In re

R.M.J., 455 U.S. 191, 200–01 (1982) (reiterating Bates’s

conclusion that warnings or disclaimers “might be

appropriately required . . . in order to dissipate the possibility

of consumer confusion or deception”); In re R.M.J., 455 U.S.

at 200 n.11 (noting the governmental entity “could require

disclaimers or explanations to avoid false hopes”); In re

R.M.J., 455 U.S. at 202 (“[R]egulation . . . [is] permissible

where the particular advertising is inherently likely to deceive

9

or where the record indicates that a particular form or method

of advertising has in fact been deceptive.”); Bolger v. Youngs

Drug Prods. Corp., 463 U.S. 60, 65 (1983) (“In light of the

greater potential for deception or confusion in the context of

certain advertising messages, content-based restrictions on

commercial speech may be permissible.”).

Thus, when the Court was confronted for the first time, in

Zauderer, with the constitutionality of a disclosure

requirement, it studied and relied on this prior commercial

speech jurisprudence concerning deception to reach its

ultimate holding. See Zauderer, 471 U.S. at 651 (“[I]n

virtually all our commercial speech decisions to date, we

have emphasized that because disclosure requirements trench

much more narrowly on an advertiser’s interests than do flat

prohibitions on speech, warnings or disclaimers might be

appropriately required in order to dissipate the possibility of

consumer confusion and deception.” (emphasis added) (citing

cases)); see also id. at 646 (“Our recent decisions involving

commercial speech have been grounded in the faith that the

free flow of commercial information is valuable enough to

justify imposing on would-be regulators the costs of

distinguishing the truthful from the false, the helpful from the

misleading, and the harmless from the harmful.” (emphasis

added)). Instead of viewing Zauderer in its proper context,

the court claims Zauderer’s deception-specific language is

“simply descriptive of the circumstances to which the Court

applied its new rule.” Maj. Op. at 7. But this conclusion is

belied by the cases preceding Zauderer as well as the cases

following it.

If, when the opinion was issued, there was any doubt

Zauderer only applied to mandates targeting deception, that

doubt dissipates given the Supreme Court’s dogged adherence

to this singular rationale. See, e.g., Peel v. Attorney

10

Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 110

(1990) (“To the extent that potentially misleading statements

of private certification or specialization could confuse

consumers, a State might consider . . . requiring a disclaimer

about the certifying organization or the standards of a

specialty.”); Ibanez v. Fla. Dep’t of Bus. & Prof’l Regulation,

512 U.S. 136, 146–47 (1994) (noting the hypothetical

possibility that a different disclaimer “might serve as an

appropriately tailored check against deception or confusion”);

Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457,

490–91 (1997) (Souter, J., dissenting) (“Zauderer thereby

reaffirmed a longstanding preference for disclosure

requirements over outright bans, as more narrowly tailored

cures for the potential of commercial messages to mislead by

saying too little. But however long the pedigree of such

mandates may be, and however broad the government’s

authority to impose them, Zauderer carries no authority for a

mandate unrelated to the interest in avoiding misleading or

incomplete commercial messages.” (citations omitted));

United States v. United Foods, Inc., 533 U.S. 405, 416 (2001)

(“There is no suggestion in the case now before us that the

mandatory assessments imposed to require one group of

private persons to pay for speech by others are somehow

necessary to make voluntary advertisements nonmisleading

for consumers.”); Milavetz, Gallop & Milavetz, P.A. v.

United States, 559 U.S. 229, 250 (2010) (upholding disclosure

requirement as “reasonably related to the State’s interest in

preventing deception”)2; see also Lorillard Tobacco Co. v.

Reilly, 533 U.S. 525, 576 (2001) (Thomas, J., concurring in

2

Significantly, in Milavetz, the Court also declined to adopt the

government’s overarching description of the rule as bearing a

reasonable relationship to a “valid state interest.” See Br. for the

United States at 55, Milavetz, 559 U.S. 229 (2010) (Nos. 08-1119,

08-1225), 2009 WL 3391429.

11

part and concurring in the judgment) (“[I]t is more

‘appropriate to require that a commercial message appear in

such a form, or include such additional information, warnings,

and disclaimers, as are necessary to prevent its being

deceptive.’ Whatever the validity of this reasoning, it is

limited to the peculiarly commercial harms that commercial

speech can threaten—i.e., the risk of deceptive or misleading

advertising.” (citations omitted)); Borgner v. Fla. Bd. of

Dentistry, 537 U.S. 1080 (2002) (Thomas, J., dissenting to

denial of certiorari, joined by Ginsburg, J.) (“If the disclaimer

creates confusion rather than eliminating it, the only possible

constitutional justification for this speech regulation is

defeated.”).

In R.J. Reynolds, a panel of this court followed

Zauderer’s text to its logical conclusion: “[B]y its own terms,

Zauderer’s holding is limited to cases in which disclosure

requirements are ‘reasonably related to the State’s interest in

preventing deception of consumers.’” R.J. Reynolds Tobacco

Co. v. FDA, 696 F.3d 1205, 1213 (D.C. Cir. 2012) (quoting

Zauderer, 471 U.S. at 651). This court then went on to

examine Supreme Court jurisprudence following Zauderer—

including Milavetz—to reaffirm that conclusion. The original

AMI panel was wrong to contradict R.J. Reynolds, and the en

banc court today is wrong to overrule it.

Thus, not only did the Supreme Court recognize

Zauderer’s clarity (and limitations), so too did this court. In

fact, even the government—in previous filings in this very

case—recognized the clear import of Zauderer. See, e.g.,

Defs.’ Opp’n to Pls.’ Mot. for Prelim. Inj. at 32, Am. Meat

Inst. v. USDA, 968 F. Supp. 2d 38 (D.D.C. 2013) (No. 13-CV-

1033), ECF No. 30, reprinted in J.A. 999 (“In order for

Zauderer to apply to a commercial speech regulation, the

regulation must be aimed at correcting misleading speech and

12

preventing deception of consumers.” (citing Milavetz, 559

U.S. at 249–50)). But see Tr. of Oral Arg. at 43, Am. Meat.

Inst., No. 13-5281 (D.C. Cir. May 19, 2014) (en banc)

(Government: “[I]t’s simply not a proper reading of

[Zauderer] to describe it as a case about combatting

deception.”).

The clear trajectory of the Supreme Court’s jurisprudence

is toward greater protection for commercial speech, not less.

See, e.g., Milavetz, 559 U.S. at 255 (Thomas, J., concurring in

part and concurring in the judgment) (“I would be willing to

reexamine Zauderer and its progeny in an appropriate case to

determine whether these precedents provide sufficient First

Amendment protection against government-mandated

disclosures.”); Sorrell v. IMS Health, Inc., 131 S. Ct. 2653,

2667–72 (2011) (striking down law burdening commercial

speech under intermediate scrutiny); Nike, Inc. v. Kasky, 539

U.S. 654, 676 (2003) (Breyer, J., dissenting) (arguing for

heightened scrutiny to apply to commercial speech when it

involves a matter of public concern); Lorillard Tobacco Co.,

533 U.S. at 576 (Thomas, J., concurring in part and

concurring in the judgment) (calling for content-

discriminatory regulation unrelated to the preservation of the

fair-bargaining process to be subjected to strict scrutiny). For

that reason, the government’s litigating position in this case,

which this court adopts, has been particularly troubling. The

government has repeatedly attempted to focus the court on

Appellants’ interests, instead of its own. See Gov’t Supp’l Br.

at 13–15; Tr. of Oral Arg. at 40, Am. Meat. Inst., No. 13-5281

(D.C. Cir. May 19, 2014) (en banc). In fact, the government

does not even mention its own interest in burdening First

Amendment rights until the very last page of its brief, and

even then, confines the interest to one sentence that cites the

original AMI Panel’s opinion, instead of the record. See

Gov’t Supp’l Br. at 20. This is backwards; the heart of the

13

First Amendment analysis begins with the government’s

justification for interfering with such a fundamental right.

See, e.g., Texas v. Johnson, 491 U.S. 397, 406–07 (1989) (“It

is, in short, . . . the governmental interest at stake that helps to

determine whether a restriction on . . . expression is valid.”).

The government even goes so far as to argue the

“applicability of the Zauderer standard does not depend upon

the government’s justification for the required disclosure

[and] [i]nstead . . . [is] premised on” the commercial actor’s

limited interests. Gov’t Supp’l Br. at 5; see also id. at 7 (“But

the nature of the government’s reason for requiring disclosure

does not affect whether the Zauderer standard applies.”).

And at oral argument, the government—before correction by

the Chief Judge—essentially argued compelled commercial

disclosures implicate no First Amendment interests at all. See

Tr. of Oral Arg. at 50, Am. Meat. Inst., No. 13-5281 (D.C.

Cir. May 19, 2014) (en banc) (arguing the analysis might be

different if “the actual First Amendment interest might start

to crop up on the other side” (emphasis added)); id. at 50–51

(stating government is “not interested in . . . quibbling” as to

whether Appellants have a First Amendment interest); see

also Gov’t Supp’l Br. at 11 (“[D]isclosure requirements are

subject to First Amendment scrutiny only insofar as they

threaten to chill protected speech.”).

Several members of this court seemed to find these

arguments troubling. See Tr. of Oral Arg. at 40–41, Am.

Meat. Inst., No. 13-5281 (D.C. Cir. May 19, 2014) (en banc)

(Judge Kavanaugh: “This is a First Amendment case. We

usually don’t start that way[. We] usually start by asking

what’s the government’s interest in burdening the speaker or

the speech.”); id. at 50 (Judge Brown: “You don’t think that

compelling speech is a First Amendment interest?”); id.

(Judge Kavanaugh: “[Y]ou were suggesting that they were

14

outside—there was no First Amendment issue at all here.”);

id. at 51 (Chief Judge Garland: “[I]t’s not quibbling. The

Supreme Court in Footnote 14 in Zauderer . . . doesn’t say

[the First Amendment interests implicated by disclosure

requirements] [a]re nonexistent. Is the government’s position

that they’re nonexistent?”). Yet, remarkably, the court today

agrees with the government that the First Amendment no

longer matters here, as long as a court can agree the

compelled information is factual and uncontroversial.

II

Despite the clear protections granted to commercial

speech since 1972, the court now invents a First Amendment

standard that provides even less protection than rational basis

review. To say this result is anomalous is an understatement.

No one has argued in this case that the government can never

compel the sellers of products to give notice to consumers.

The only question here is who bears the burden of

justification and what level of interest is sufficient. And when

we are dealing with fundamental First Amendment

protections, as we are here, the burden is on the government,

and it is the government that must assert substantial interests.

See Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469,

480 (1989) (“[T]he State bears the burden of justifying its

[commercial speech] restrictions.”) Curiously, the court

disagrees, salvaging interests the government disclaimed to

uphold a regulation the government never adequately

justified. Compelled disclosure, says the court, can “rest on

other suppositions as opposed to the precise interests put

forward by the State.” Maj. Op. at 12

15

A

Although we have sometimes characterized the Zauderer

standard as similar to rational basis review, see R.J.

Reynolds, 696 F.3d at 1212, even the court acknowledges it is

essentially an application of Central Hudson’s intermediate

scrutiny. See Maj. Op. at 16; Kavanaugh Op. at 6–7. And, if

Zauderer’s import is clear when read alone, and pellucid

when its analysis is placed in historical context, it is even

more unmistakable when seen as a specialized subset of

Central Hudson’s intermediate scrutiny.

Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York, 447 U.S. 557 (1980), clarifies the

intermediate scrutiny standard applicable to commercial

speech restrictions: the government’s asserted interest must

be substantial; the regulation must directly advance that

interest; and the regulation must be no more extensive than is

necessary to serve that interest, id. at 564. This standard

applies not only to speech restrictions but also to compelled

speech; the right not to speak has been protected

commercially just as it has been protected generally. See,

e.g., United Foods, Inc., 533 U.S. at 410 (protecting right

against compelled speech, even if commercial speech is

ordinarily subject to lesser safeguards); cf. Riley v. Nat’l

Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 796–97 (1988)

(“[I]n the context of protected speech, the difference [between

compelled speech and compelled silence] is without

constitutional significance, for the First Amendment

guarantees ‘freedom of speech,’ a term necessarily

comprising the decision of both what to say and what not to

say.”). Thus, the general rule is that government may not

compel speech without satisfying at least a substantial burden:

intermediate scrutiny. See Riley, 487 U.S. at 796–97. And

when the government attempts to compel individuals to

16

express a certain viewpoint, the government’s action is

subject to an even higher burden: strict scrutiny. See Wooley

v. Maynard, 430 U.S. 705, 714–15 (1977); see also Pac. Gas

& Elec. Co. v. Pub. Utils. Comm’n of Cal., 475 U.S. 1, 12–15

(1986); Zauderer, 471 U.S. at 650.

Zauderer’s narrowly crafted exception to this rule does

not offer a dispensation from Central Hudson’s intermediate

scrutiny. Rather the government’s burden under intermediate

scrutiny is effectively met when the government commands

purely factual and noncontroversial disclosures to prevent

deceptive advertising.3 See Zauderer, 471 U.S. at 651.

Zauderer is, in essence, a shortcut, “where several of Central

Hudson’s elements have already been established.” AMI

Supp’l Br. at 9.

To illustrate: Under Central Hudson, the government

must first assert a substantial interest. Preventing inherent or

actual deception in commercial advertising will always be

such a substantial interest, so Zauderer satisfies the first

element. Next, when a government’s disclosure mandate is

reasonably related to its deception interest—as Zauderer

requires—we can be assured the disclosure will directly

advance that interest; in other words, a reasonably related

curative disclosure will necessarily make the deceptive

advertisement less misleading. Finally, a disclosure

requirement will be less restrictive than an outright ban, or no

more extensive than necessary to cure the deception.

3

When compelled disclosures do not contain “purely factual and

uncontroversial information” to correct deception in advertising,

strict scrutiny applies. Zauderer, 471 U.S. at 651; accord Pac. Gas

& Elec. Co., 475 U.S. at 12–15.

17

When the government’s interest is not in curing deceptive

advertising, however, Zauderer does not apply. The

commercial speech “may be restricted only in the service of a

substantial . . . interest” articulated by the government, and

“only through means that directly advance that interest.”

Zauderer, 471 U.S. at 638 (citing Central Hudson, 447 U.S. at

566); see also In re R.M.J., 455 U.S. at 203 (noting when a

statement is not misleading in any way—real, inherent, or

potential—the Court mandates that the state’s authority be

subject to serving a “substantial interest,” interfering with

speech only in proportion to the interest served, and being

narrowly drawn). Central Hudson—without any shortcuts—

applies to disclosures that target interests other than

deception.

Unsatisfied with eviscerating Zauderer’s protective

limits, the court proceeds to lay the groundwork to

disembowel Central Hudson as well. See, e.g., Maj. Op. at 14

(“Zauderer’s method of evaluating fit differs in wording

[from Central Hudson], though perhaps not significantly in

substance . . . .”). By holding the amorphous interests in

today’s case to be “substantial” (and questioning whether any

governmental interest could fail to be substantial, except those

already found to be trivial, see Maj. Op. at 8–9), the court

effectively absolves the government of any burden. Any

interest that is not “trivial” will do.

B

Although the court declines to “consider to what extent a

mandate reviewed under Zauderer can rest on other

suppositions as opposed to the precise interests put forward

by the State,” Maj. Op. at 12, it nonetheless relies on interests

the agency never asserted and even denied were rationales for

the rule. This takes the evil of post hoc rationalization to a

18

whole new level. And the court forgets that it is assessing the

propriety of administrative action, when a reviewing court is

limited to the administrative record and must judge the rule

“solely by the grounds invoked by the agency.” Chenery, 332

U.S. at 196; see also Motor Vehicle Mfrs. Ass’n of U.S., Inc.

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (“It

is well-established that an agency’s action must be upheld, if

at all, on the basis articulated by the agency itself.”). If the

grounds asserted by the agency “are inadequate or improper,

the court is powerless to affirm the administrative action by

substituting what it considers to be a more adequate or proper

basis.” Chenery, 332 U.S. at 196. The court violates this

bedrock principle of administrative law today.

The court asserts “AMI makes no claim that the agency’s

exercises of its discretion are of constitutional moment . . . .”

Maj. Op. at 12. This is more of a non sequitur than an

explanation.4 The litigants have assumed the usual rules

applied. The court has changed the game, invoking

exceptions which played no role in the panel decision. But

here the court’s exceptions only prove the wisdom of the

rules. First, that the statute itself mandates a course of action

is of no moment. This is often the case. See, e.g., R.J.

Reynolds, 696 F.3d at 1208–09. Moreover, Chenery applies

with equal force to statutory interpretation. N. Air Cargo v.

U.S. Postal Serv., 674 F.3d 852, 860 (D.C. Cir. 2012).

Second, the “statutorily compelled” exception assumes the

4

See AMI’s First Amended Complaint, Am. Meat Inst. v. USDA,

968 F. Supp. 2d 38 (D.D.C. 2013) (No. 13-CV-1033), ECF No. 15,

reprinted in J.A. 25–26, ¶¶ 72–79; Am. Meat Inst. v. USDA, 746

F.3d 1065, 1067–68 (D.C. Cir. 2014) (“[AMI] challenged the 2013

rule in district court as a violation of the COOL statute and the First

Amendment.”); Maj Op. at 5 (“AMI argues that the 2013 rule

violates its First Amendment right to freedom of speech . . . .”).

19

agency decision—even if premised on a debatable or

erroneous ground—would be unchanged by the “useless

formality” of court review. Henry J. Friendly, Chenery

Revisited: Reflections on Reversal and Remand of

Administrative Orders, 2 DUKE L.J. 199, 210 (1969). But the

agency’s specific implementation is not compelled by the

statute. Indeed, this is the agency’s second try.

Likewise, if the court means to rely on the background

presumption of the constitutionality of Congressional

legislation, that presumption is consistent with rational basis

review, Katzenbach v. Morgan, 384 U.S. 641, 653 (1966), but

clearly improper where heightened constitutional scrutiny is

demanded, see, e.g., Turner Broad. Sys., Inc. v. FCC, 512

U.S. 622, 664–67 (1994). Heightened scrutiny requires

considerable and specific Congressional findings to establish

that the government’s asserted interest is substantial. See id.

at 666. Thus, even accepting the court’s doubtful assertion

that it can completely ignore the rulemaking record in this

case, the government’s burden could never be met by the

“hypothesized justifications” based on a few scattered

comments in the legislative record. Thompson v. W. States

Med. Ctr., 535 U.S. 357, 373 (2002); see also Kimel v. Fla.

Bd. of Regents, 528 U.S. 62, 89 (2000) (noting that the

government’s burden under heightened scrutiny is not met

where the legislative record consists “almost entirely of

isolated sentences clipped from floor debates and legislative

reports”).

In any event, the mere presence of substantial

Congressional findings is not alone sufficient. The Central

Hudson test requires “the Government not only to identify

specifically a substantial interest to be achieved . . . but also to

prove that the regulation directly advances that interest and is

not more extensive than is necessary to serve that interest.”

20

Thompson, 535 U.S. at 374. The “congruence and

proportionality” test announced in Central Hudson—and

applied in other heightened scrutiny cases—is not satisfied

where the legislative record offers only “scant support” for

Congress’s conclusions. See Fla. Prepaid Postsecondary

Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 645–47

(1999).

The government’s only asserted interest for the rule

throughout this litigation—after abandoning its half-hearted

post hoc deception rationale—has been a consistently vague

one: “The government’s interest is in providing consumers

with information that those consumers can use to make

choices about the food that they will . . . purchase and serve to

their families or eat themselves.” Tr. of Oral Arg. at 41, Am.

Meat. Inst., No. 13-5281 (D.C. Cir. May 19, 2014) (en banc);

see also Gov’t Supp’l Br. at 20 (referring to “the benefit of

allowing customers to know the country of origin of their

food” as the government interest); Mandatory Country of

Origin Labeling, 74 Fed. Reg. 2658, 2683 (Jan. 15, 2009)

[hereinafter “2009 Rule”] (noting “interest by some

consumers in the country of origin of food” (emphasis

added)). Yet the government has never explained precisely

why origin information assists with customer preferences,

only suggesting “the production steps in each country may

embody latent (hidden or unobservable) attributes, which may

be important to individual consumers.” Mandatory Country

of Origin Labeling, 78 Fed. Reg. 31,367, 31,377 (May 24,

2013) [hereinafter “2013 Rule”] (emphasis added). The

government never suggests, explains, or supports what those

attributes might be. More importantly, the government never

explains why coerced speech is the only solution.

The agency’s stated ambiguous and amorphous interest in

giving consumers more information is undoubtedly

21

insufficient to survive even under an expanded-Zauderer

regime. See Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67,

74 (2d Cir. 1996) (holding “consumer curiosity alone is not a

strong enough state interest to sustain the compulsion of even

an accurate, factual statement . . . in a commercial context”);

accord Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115

n.6 (2d Cir. 2001); see also Kavanaugh Op. at 3 (conceding

“it is plainly not enough for the Government to say simply

that it has a substantial interest in giving consumers

information”). By applying Zauderer to this case, the court

invents a new standard that, in practice, is even more relaxed

than rational basis review. Now, commercial disclosure

mandates are subject only to rational basis review minus any

legitimate justification. See Tr. of Oral Arg. at 85, Am. Meat.

Inst., No. 13-5281 (D.C. Cir. May 19, 2014) (en banc) (“[I]f

you accept the panel’s ruling here, this is rational basis minus,

and when you are talking about where speech is compelled,

you have to apply some standard other than that there be any

interest in the air.”). Undaunted, the court borrows the res

ipsa loquitur doctrine from tort law to conclude the “self-

evident tendency of a disclosure mandate to assure that

recipients get the mandated information,” Maj. Op. at 15,

satisfies the government’s “burden of showing that

[compelled disclosure] advances its interest in making the . . .

information accessible to the recipients,” Maj. Op. at 15.

Seriously? With logic like this, who needs a Ministry of

Truth?5 However, should this fog of airy circumlocutions

prove too frustratingly elusive, the government need not

justify its actions at all. As noted, the court is willing to

change the rules so it may selectively rely on the legislative

record of the underlying statute, while disregarding the

agency rulemaking challenged in this case. For the court to

sua sponte rely on legislative history instead of either the

5

See GEORGE ORWELL, NINETEEN EIGHTY-FOUR (1949).

22

regulatory text or the rulemaking record reverses the poles of

administrative law. See Tr. of Oral Arg. at 38, Am. Meat.

Inst., No. 13-5281 (D.C. Cir. May 19, 2014) (en banc) (“The

two interests that the panel identified are both interests that

the government has expressly disclaimed. It would be a

remarkable thing for this Court to apply Zauderer in those

circumstances given the government’s expressed disclaiming

of those interests.”); see also Alex Kozinski, Should Reading

Legislative History Be an Impeachable Offense?, 31 SUFFOLK

U. L. REV. 807, 812–13 (1998) (noting, among other things,

that legislative history “is often contradictory, giving courts a

chance to pick and choose those bits which support the result

the judges want to reach”); Patricia M. Wald, Some

Observations on the Use of Legislative History in the 1981

Supreme Court Term, 68 IOWA L. REV. 195, 214 (1983)

(“[C]iting legislative history is still . . . akin to looking over a

crowd and picking out your friends.”).

The result is a jumble, a messy amalgam of standards,

legislative history, and administrative procedure. The court is

so committed to upholding this rule that it concludes “several

aspects of the government’s interest in country-of-origin

labeling for food combine to make the interest substantial:

the context and long history of country-of-origin disclosures

to enable consumers to choose American-made products; the

demonstrated consumer interest in extending country-of-

origin labeling to food products; and the individual health

concerns and market impacts that can arise in the event of a

food-borne illness outbreak.” Maj. Op. at 9. On inspection,

each of these “aspects,” upon which the court so heavily

leans, is foreclosed by history, governmental concession, and

the record.

23

i

Contrary to the court’s assertions, the “long history” of

country-of-origin labeling cannot support the government’s

interest here. The court claims the rule’s “historical pedigree .

. . lifts it well above ‘idle curiosity.’” Maj. Op. at 10.

However, in the First Amendment context, which has been

steadily evolving since the late 1800s, history is not “telling,”

Maj. Op. at 10; rather, it is an especially poor substitute for

reasoned judgment. The Supreme Court’s general reluctance

to accept any free speech claims at the time country-of-origin

labeling began certainly bears on the issue. See David M.

Rabbant, The First Amendment in Its Forgotten Years, 90

YALE L.J. 514, 523 (1981) (“The overwhelming majority of

prewar decisions in all jurisdictions rejected free speech

claims, often by ignoring their existence.”).

Modern “commercial speech” doctrine did not begin until

the 1970s, when the Supreme Court formally extended First

Amendment protection to commercial speech. See Va. State

Bd. of Pharmacy, 425 U.S. at 762. That “Congress has been

imposing [country-of-origin] mandates since 1890,” Maj. Op.

at 10, eighty-six years before commercial speech received

explicit protection, thus tells us very little about the practice’s

constitutionality. The Court’s terminology in these early

years was something of a self-fulfilling prophecy; what we

now call “commercial speech,” the court simply referred to as

“commercial advertising” or some other business activity.

See, e.g., Valentine v. Chrestensen, 316 U.S. 52, 54 (1942)

(denying protection for “purely commercial advertising”);

Halter v. Nebraska, 205 U.S. 34, 41, 45 (1907) (referring to

“mere advertisement”); see also Alex Kozinski & Stuart

Banner, Response, The Anti-History and Pre-History of

Commercial Speech, 71 TEX. L. REV. 747, 756–57 (1993)

(“But before 1971, no judge thought of the thing as

24

commercial speech—they called it ‘advertising’ . . . , or

‘soliciting and canvassing,’ or some such term that denoted a

business activity rather than a form of expression.”). This

linguistic choice not only reflected the court’s underlying

thoughts and assumptions (i.e., that advertising was

permissibly regulated as business conduct) but also likely

influenced the litigating positions of parties. Litigants rarely

raised First Amendment challenges to advertising

restrictions—instead making substantive due process

arguments by asserting restrictions affected their business

rights.

For example, in 1907, when faced with the constitutional

validity of a state law criminalizing the use of an American

flag emblem on labels, the litigants and the Court “ignored

potential free speech claims.” Rabbant, supra at 531; see

Halter, 205 U.S. at 38; Kozinski & Banner, supra at 763 (“No

speech-related claim was made in Halter, probably . . .

because the litigants didn’t conceive of bottle-labeling as

speech.”). Rather, the defendants attacked the statute as

repugnant to the Equal Protection and Due Process Clauses,

challenges rejected by the Court. See Halter, 205 U.S. at 39;

see also Rabbant, supra at 531 n.69. When the Court

repeatedly referred to “mere advertisement,” Halter, 205 U.S.

at 41, 45, it did so in the context of analyzing substantive due

process and property rights, not speech.

When at last the Supreme Court formally addressed the

protection of “advertising” (again, its term), it noted, without

citation, it was “clear that the Constitution imposes no such

restraint on government as respects purely commercial

advertising.” Chrestensen, 316 U.S. at 54. “[T]his suggests

that in 1942, the Justices considered the question whether the

First Amendment has any application to advertising to be . . .

easily resolved and not very important.” Kozinski & Banner,

25

supra at 758. One reason for this certainty again may have

been the concept that advertising was more a business

activity—subject to the “then-recently-adopted deferential

economic substantive due process jurisprudence”—than

speech. See id. Again, given both Christensen and the

prevailing view that advertising was conduct and not speech,

the court’s citation to early labeling regimes tells us nothing

useful.

Additionally, the early years of free speech jurisprudence

saw laws routinely upheld that by today’s standards clearly

interfere with commercial speech. See, e.g., Ex parte Rapier,

143 U.S. 110 (1892); Ex parte Jackson, 96 U.S. 727 (1877).

In the postal cases of the late 1800s, the Supreme Court

focused on the right of Congress to exclude injurious matters

from the mail, including materials advertising lotteries and

other vices. The mailing prohibition’s long history (since

1866!)—and the Court’s decisions affirming it—did not stop

the Supreme Court from later rejecting the laws under the new

commercial speech doctrine. See, e.g., Bolger, 463 U.S. at

72–76.

Furthermore, this court’s reliance on Burson v. Freeman,

504 U.S. 191 (1992), to support its history rationale is

inapposite. First, Burson was a “rare case,” id. at 211, that

involved a reconciliation of two competing fundamental

rights—the right to engage in political discourse and the right

to vote, “a right at the heart of our democracy,” id. at 198.

But Burson relied on history only to “demonstrate the

necessity of restricted areas in and around polling places.” Id.

at 200. And, like Zauderer, Burson approves a limited

intrusion on protected activity to prevent fraud. Id. at 199.

Voter intimidation and election fraud were historically

rampant, but the 1890 restrictions had ameliorated these

problems. Id. at 207–08. In contrast, this court invokes the

26

long history of country-of-origin labeling laws to argue the

necessity of the government’s intrusion is self-evident.

Burson simply does not stand for the proposition that a time-

tested consensus can be a proxy for the substantiality of the

government’s interest in the First Amendment context. If that

were true, the commercial speech doctrine would never have

developed at all.

Similarly, Edenfield v. Fane, 507 U.S. 761 (1993),

contradicts this court’s actions and its analysis. In Edenfield,

the Supreme Court emphasized the need to “identify with care

the interests the State itself asserts” and noted “[u]nlike

rational-basis review, the Central Hudson standard does not

permit us to supplant the precise interests put forward by the

State with other suppositions.” Id. at 768. But that is exactly

what the court does here.

ii

The court concludes protectionism or patriotism is the

true motive of the challenged country-of-origin labeling

scheme, even if it is only acknowledged with a sly wink by

the government. See Kavanaugh Op. at 5 (“[T]he Executive

Branch has refrained during this litigation from expressly

articulating its . . . interest in supporting American farmers

and ranchers in order to justify this law, apparently because of

the international repercussions that might ensue.”). The court

assumes—perhaps correctly—that absent the constraints of

various trade treaties, Congress would have an interest in

promoting American products. See Maj. Op. at 9 (noting

origin labeling “enable[s] consumers to choose American-

made products”); Kavanaugh Op. at 6 (asserting the

government “has a substantial interest in this case in

supporting American farmers and ranchers against their

foreign competitors”). But, that interest would constitute a

27

substantial justification for coercing speech only if the

government had actually asserted it, and if voluntary action

and direct government speech were obviously inadequate.

Significantly, the court ignores the agency’s disclaimers in

this case. Not only has the agency failed to raise or support

any protectionist motive, it has, in fact, consistently denied

one. See, e.g., 2013 Rule, 78 Fed. Reg. at 31,376 (“The

availability of [country-of-origin labeling] information does

not imply that there will necessarily be any change in

aggregate consumer demand or in demand for products of one

origin versus others.”); 2009 Rule, 74 Fed. Reg. at 2670

(“[W]hile some U.S. producers may hope to receive benefits

from the [country-of-origin labeling] program for products of

U.S. origin, the purpose of the . . . program is to provide

consumers with origin information.” (emphasis added));

Mandatory Country of Origin Labeling, 68 Fed. Reg. 61,944,

61,955 (Oct. 30, 2003) [hereinafter “2003 Proposed Rule”]

(“We find little evidence to support the notion that

consumers’ stated preferences for country of origin labeling

will lead to increased demands for covered commodities

bearing the U.S.-origin label.”); 68 Fed. Reg. at 61,956 (“The

lack of participation in government-provided programs for

labeling products of U.S. origin provides evidence that

consumers do not have a strong preference for country of

origin labeling.”); 68 Fed. Reg. at 61,956 (“The results from .

. . surveys indicate that the number of consumers with strong

preferences for U.S.-origin labeled products is not sufficient

for U.S. producers to benefit from labeling.”); accord Tr. of

Oral Arg. at 53, Am. Meat. Inst., No. 13-5281 (D.C. Cir. May

19, 2014) (en banc) (explaining government is not asserting

an interest in helping American ranchers).

28

iii

The court credits the government with acting sub silentio

on the belief that food products produced wholly in the USA

are safer than those produced even partly outside the USA.

See Maj. Op. at 9 (asserting interest in “individual health

concerns and market impacts that can arise in the event of a

food-borne illness outbreak”); id. at 11 (“Supporting members

of Congress identified the statute’s purpose as enabling

customers to make informed choices based on characteristics

of the products they wish to purchase, including United States

supervision of the entire production process for health and

hygiene.”) Again, not only has the government failed to raise

or support any motive in consumer health and safety, it has, in

fact, consistently eschewed that interest as supporting the rule.

See, e.g., Mandatory Country of Origin Labeling, 78 Fed.

Reg. 31,367, 31,372 (May 24, 2013) (noting the country-of-

origin labeling program “is not food safety related”); 2009

Rule, 74 Fed. Reg. at 2679 (“[T]he [country-of-origin

labeling] program is neither a food safety [n]or traceability

program, but rather a consumer information program. Food

products, both imported and domestic, must meet the food

safety standards of the FDA and [other agencies]. Food

safety and traceability are not the stated intent of the rule . . . .

”); 74 Fed. Reg. at 2683 (rejecting commenters’ suggestions

that country-of-origin labeling would provide “food safety

benefits to consumers” because the program “does not address

food safety issues”); 2003 Proposed Rule, 68 Fed. Reg. at

61,956 (noting that although some evidence suggests

“consumers may use country of origin labeling as a proxy for

food safety information,” country of original labeling “does

not provide valid information regarding food safety”). This

undercuts the court’s claim that “it seems reasonable for

Congress to anticipate that many consumers will prefer food

29

that had been continuously under a particular government’s

direct scrutiny.” Maj. Op. at 11.

Even the anecdotes in the legislative record do not, as the

court contends, “broadly suggest[] the utility of [country-of-

origin] disclosures in the event of any disease outbreak known

to have a specific country of origin, foreign or domestic.”

Maj. Op. at 11–12. Rather, the Agency also discredited this

very purpose: “Appropriate preventative measures and

effective mechanisms to recall products in the event of

contamination incidents are the means used to protect the

health of the consuming public . . . .” 2009 Rule, 74 Fed.

Reg. at 2683; see id. at 2679 (rejecting commenters’

suggestions that the origin labeling program is “critical to

respond to outbreaks of food borne illness”); see also

Kavanaugh Op. at 3 (“[T]he Government cannot advance a

traditional . . . health . . . or safety interest in this case because

a country-of-origin disclosure requirement obviously does not

serve [that] interest[].”). The court invokes a health and

safety interest—even over the government’s adamant

objections—because health and safety will usually qualify as

a substantial interest. But the court forgets that the interest

must at least be one asserted by the government—and

certainly not one rejected by it.

III

This case is really not about country-of-origin labeling.

It is not even about patriotism or protectionism. And it is

certainly not about health and safety. What is apparent from

the record and the briefing is that this is a case about seeking

competitive advantage. One need only look at the parties and

amici to recognize this rule benefits one group of American

farmers and producers, while interfering with the practices

and profits of other American businesses who rely on

30

imported meat to serve their customers. See, e.g., Intervenors

Br. at i (noting the United States Cattlemen’s Association

“present[s] an effective voice for the U.S. cattle industry and

promot[es] ranching in the United States”); id. (“[United

States Cattlemen’s Association] works to promote the

interests of cattlemen in the United States on issues such as

the Country of Origin Labeling . . . program”); id. (explaining

the National Farmers Union is a “national organization

representing the interests of farmers and ranchers across the

United States . . . by advocating the policy positions

developed by its members . . . on issues such as [country-of-

origin labeling]”); Supp’l Br. of Amici Curiae Food & Water

Watch, et al., at iv (describing amici as “intimately involved

in, and [having] spent considerable resources on, advocating

for . . . the development of the [country-of-origin labeling]

rule at issue in this case”); see, e.g., Br. of Amicus Curiae

Government of Canada at 3–4, 9 (“[P]arts of the U.S. industry

that produce both U.S.-origin and mixed-origin meat face”

much higher costs than slaughterhouses that rely on domestic

livestock—a cost differential the WTO concluded has a

“detrimental impact . . . [on the] competitive position of

Canadian cattle and hogs in the U.S. market [that] could not

be explained by the need to” inform consumers). Even the

court’s citation to the congressional record underscores this

point. See Maj. Op. at 11 (citing statements from U.S.

representatives hailing from Western states, including Oregon

(Hooley and Wu) and California (Bono)). Such a

disproportionate burden “stands in sharp conflict with the

First Amendment’s command that government regulation of

speech must be measured in minimums, not maximums.”

Riley, 487 U.S. at 790.

Of course the victors today will be the victims tomorrow,

because the standard created by this case will virtually ensure

the producers supporting this labeling regime will one day be

31

saddled with objectionable disclosure requirements (perhaps

to disclose cattle feed practices; how their cattle are raised;

whether their cattle were medically treated and with what; the

environmental effects of beef production; or even the union

status or wage levels of their employees). Only the fertile

imaginations of activists will limit what disclosures successful

efforts from vegetarian, animal rights, environmental,

consumer protection, or other as-yet-unknown lobbies may

compel.

If patriotism or protectionism would sell products,

producers and sellers would happily festoon their products

with Made in the USA or Product of the USA labels. Thus,

any consumer’s desire to buy American could be easily

satisfied by voluntary action. See, e.g., 2009 Rule, 74 Fed.

Reg. at 2682. Yet today this court offers to facilitate blatant

rent-seeking behavior by announcing its willingness to intuit

the government’s unspoken agendas—perhaps one of the

most dissembling things about the court’s opinion. But, as

bad as it is for the court to invent rationales the government

does not actually offer, the reality is worse.

By substantiating the government’s nebulous interests,

the court essentially permits the government to commandeer

the speech of others. There is no limiting principle for such a

flimsy interest as the government asserted in this case. See

Tr. of Oral Arg. at 28, Am. Meat. Inst., No. 13-5281 (D.C.

Cir. May 19, 2014) (en banc) (“There is absolutely no

stopping point to [the government’s consumer-interest]

argument.”); id. (Judge Kavanaugh: “The government wants

no stopping point to that argument.”). More alarmingly, such

self-referential interests can be marshalled in aid of any sort

of crony capitalism or ideological arm-twisting. This labeling

scheme is only one example.

32

The scheme is not designed to inform consumers; it is

designed to take away the price advantage enjoyed by one

segment of a domestic industry. The government’s alleged

interest in providing information that some consumers may

desire will actually result in higher prices. See, e.g., Br. of

Amicus Curiae Grocery Manufacturers Association at 11

(“The severe costs that the COOL requirements will impose

on GMA’s members are entirely out of proportion to the

ethereal goal of affording consumers more information . . .

.”); see id. at 11–12 (“If the COOL requirements are

sustained, that sort of supply-chain management will become

extremely costly or, for some manufacturers, cost prohibitive .

. . .”). Forcing meat packers to pay a premium for domestic

beef will raise costs for consumers. Query whether the

protections of the First Amendment should be abrogated for

some businesses in order to benefit other businesses. That

approach not only swallows important First Amendment

protections, it does so in order to discriminate in favor of

particular segments of particular industries. The first

Amendment ought not be construed to allow the government

to compel speech in the service of speculative or hypothetical

interests for purely private benefits. Once we articulate such

a principle of constitutional adjudication, there is really no

limit to what government may compel. And if this example

of cronyism is okay, who will balk at any other economic or

ideological discrimination? The only limit the court seemed

to recognize during the oral argument was labels that overtly

promote invidious discrimination,6 but protectionism,

patriotism, and environmentalism will be entirely permissible

subjects for compelled labeling, especially where the motive

6

See Tr. of Oral Arg. at 56, Am. Meat. Inst., No. 13-5281 (D.C. Cir.

May 19, 2014) (en banc) (Chief Judge Garland making the

government’s point that “it [is] a violation of the Constitution to

discriminate on the basis of national origin among people already in

the United States”).

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can remain unspoken. A generous swath of protection the

First Amendment once afforded to businesses against such

encroachment has now been ceded to the government’s

allegedly good intentions.

IV

The court has taken a rationale developed in a specific

context and applicable to a narrow subset of government

activity—regulating speech that could be entirely

prohibited—and fashioned a new, broad area of government

power in which naked compulsion, once prohibited by the

First Amendment, no longer requires any credible

justification. The court accomplishes this extraordinary feat

by plucking the phrase “factual and uncontroversial” out of

the Zauderer analysis while pointedly ignoring another

limitation: that the compelled disclosure must be justified and

not unduly burdensome. This is a move which tends to

dissolve the whole idea of a right not to speak. It is strongly

reminiscent of C.S. Lewis’s criticism of those who reject

natural law and traditional morality:

There has never been, and never will be, a radically new

[judgment] of value in the history of the world. What

purport to be new systems or (as they now call them)

‘ideologies,’ all consist of fragments from the [natural

law] itself, arbitrarily wrenched from their context in the

whole and then swollen to madness in their isolation . . . .

C.S. LEWIS, THE ABOLITION OF MAN 43–44 (Harper Collins

2001) (1944). That is what the court now announces. What

was merely an observation in the well-ordered framework of

Zauderer now becomes an overarching principle that

subsumes the First Amendment. And it does so to facilitate

34

coercion and the imposition of orthodoxy. What is more

uncontroversial than orthodoxy?

There can be no right not to speak when the government

may compel its citizens to act as mouthpieces for whatever it

deems factual and non-controversial and the determination of

what is and what is not is left to the subjective and ad hoc

whims of government bureaucrats or judges. In a world in

which the existence of truth and objective reality are daily

denied, and unverifiable hypotheses are deemed indisputable,

what is claimed as fact may owe more to faith than science,

and what is or is not controversial will lie in the eye of the

beholder.

AMI’s counsel began the en banc argument by positing

an absurdity no sensible court could countenance—that

Zauderer somehow permits the government to compel speech

based on “any interest, no matter how articulated, no matter

how speculative.” Today, the court’s commitment to country-

of-origin labeling leads it to willfully distort the fundamental

holding and limitations of Zauderer and a virtually unbroken

line of Supreme Court precedent to do exactly that—a

perniciously Procrustean solution that hacks the First

Amendment down to fit in the government’s hip pocket. I

will not join the carnage.