Country of Origin Labeling (COOL): An Overview

Background

The Tariff Act of 1930, 19 U.S.C. §§ 1202-1681b, has historically required nearly every item imported into the United States to disclose the item’s country of origin to the “ultimate purchaser,” unless the item met one of the specified exemptions under the law. Exempt items are those that are incapable of being marked, items economically prohibitive of being marked, and items on the “J List.” The J List includes classes of goods that had been imported for five years after 1932 and were not required to indicate their country of origin during that time. Many agricultural products are on the list, including vegetables, fruits, nuts, berries, and live or dead animals, fish, and birds. 19 C.F.R. § 134.33 (2003) (J-List exceptions). To qualify for the J List exception, these agricultural products may only be processed to the extent necessary for transportation. However, the immediate container in which the ultimate purchaser receives these products still must be labeled. The labeled container may be a bulk shipping container or a retail-ready package. Generally, consumers only see the label if the imported goods arrive at the border in retail-ready packaging.

The definition of ultimate purchaser also affects which products required labeling. The ultimate purchaser is the last person in the United States who will receive the product in the form in which it was imported. If a manufacturer or processor receives the product and substantially transforms it, no origin labeling is required, even though a new or different product is not produced. A minor process that leaves the identity of the imported product intact though will result in a consumer being the ultimate purchaser.

Under the authority of the Federal Meat Inspection Act, 21 U.S.C. §§ 601-695, and the Poultry Products Inspection Act, 21 U.S.C. §§ 451-472, the United States Department of Agriculture (USDA) is charged with ensuring the proper labeling of imported meats and poultry. USDA regulations require COOL on the immediate containers of imported meat. Retail-ready containers of meat and shipping containers of bulk meat must bear country of origin markings. Imported bulk meat is often processed inside a domestic plant. Prior to 2012, processors such as slaughterhouses were deemed “ultimate purchasers” by the USDA, allowing those processors who have attained imported meat, or meat of “mixed origin,” to be labeled with just the location of the processor. Notably, the 2016 Consolidated Appropriations Act removed COOL labeling requirements from beef and pork muscle cuts and ground beef and pork.

Foods other than meat and poultry are regulated by the U.S. Department of Health and Human Services’ Food and Drug Administration (FDA), primarily under the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. §301 et seq.

Federal Regulatory Authority

In COOL, administrative agencies such as USDA/FDA/EPA have been given authority by Congress to create regulations implementing the requirements of the federal law.  In 2024, the Supreme Court of the United States issued two rulings that are expected to have a major impact on how judges decide cases challenging those regulations and that agency authority.

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244 (2024) overruled the long-standing doctrine of deference established in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). Chevron deference was a two-step process that clarified how and when federal courts should defer to an agency regulation interpreting a statute.  Chevron only applied in situations where a court had determined that the statutory language the agency was interpreting was ambiguous.  If it was ambiguous, the court would consider whether the agency’s interpretation of the statutory language was “reasonable”.  If it was reasonable, the court was required to defer to the agency’s interpretation. If it was not, the court would overrule the interpretation.

Loper Bright formally overturned Chevron. In a 6-3 decision, the Supreme Court held that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” Following the ruling, courts are instead required to exercise independent judgment in determining whether an administrative agency has acted within its statutory authority.  Courts may still seek guidance from the agencies involved, but courts will no longer be required to defer to an agency’s interpretation of a statute.

In Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 144 S. Ct. 2440 (2024), the Supreme Court extended the period of time during which a party may file a lawsuit challenging federal agency actions. According to 28 U.S.C.S. § 2401(a), the six-year statute of limitations began to run when an administrative agency’s action was “final.”  In Corner Post, the Supreme Court ruled that an action becomes “final” when a plaintiff suffers an injury, rather than when a “final regulation” is released. This ruling expands the potential for plaintiffs to challenge federal agency rules and regulations that have been final for over six years.

While the full effect of these two rulings remains to be seen, it is highly likely that the agricultural industry will be impacted by the Supreme Court’s decisions. Importantly, the rulings fundamentally change how courts will resolve lawsuits challenging agency regulations for misinterpreting the agency’s statutory authority. Impacts are most likely to be felt in areas of the law, such as COOL, dominated by statutes with relatively ambiguous language where Congress has relied on agency regulations to fill in specifics.

COOL for Ag Products at Retail

While agricultural commodities remained exempt from COOL requirements for many years, the 2002 Farm Bill, Pub. L. No. 107-171 § 10816, 116 Stat. 134, 533-35, amended the Agricultural Marketing Act of 1946, 7 U.S.C. §§ 1621-1637b (codified at 7 U.S.C. §§ 1638-1638d), to require retail level COOL for ground and muscle cuts of beef, lamb, and pork, as well as farm-raised fish, wild fish, shellfish, peanuts, and fresh fruits and vegetables. However, a 2016 appropriations bill modified the products covered so that COOL laws no longer apply to muscle cuts of beef or pork. The most recent 2016 regulation applies COOL laws to lamb, chicken, and goat meat, perishable agricultural commodities, macadamia nuts, pecans, peanuts, and ginseng.

If these items are ingredients in processed foods, they are not required to be labeled. The Act also exempted food service establishments, such as restaurants, cafeterias, and bars engaged in selling prepared food to the public. The COOL law adopted the definition of retailer from the Perishable Agricultural Commodities Act of 1930, 7 U.S.C. §§ 499a-499t. Thus, retailers that sell less than $230,000.00 of fresh fruits and vegetables in any calendar year are exempt from complying with COOL laws. Retailers have the primary burden of labeling procedures for consumers under the COOL law. Retailers are required to provide the country of origin information on a clear and visible sign on the commodity itself, the package, the display, or the holding bin at the final point of sale to consumers. The law may also require retailers to maintain records that are sufficient to enable an auditor to determine compliance with the law. Suppliers to the final retailers are also required to provide necessary country of origin information to the retailer to ensure compliance with the law.

The USDA does have the authority to require a verifiable audit trial for country of origin information. However, a provision in the COOL law explicitly prohibits the USDA from using a mandatory identification system to verify the country of origin of a covered commodity.

As for the recordkeeping requirements, upon request by the USDA, suppliers and retailers must provide the USDA with documents allowing verification of the product’s origin and method of production within five (5) days. 7 C.F.R. § 60.400(a)(2). For pre-labeled products, retailers are expected to keep documentation on the product’s country of origin and method of production for the time they retain the product. 7 C.F.R. § 60.400(c)(1). Only products comingled for resale may provide multiple countries of origin. 7 C.F.R. § 60.400(c)(1). The retailer has the responsibility of keeping documentation as long as the product is on hand, for prelabeled products the label is sufficient. 7 C.F.R. § 60.400 (c)(2). For products that are not pre-labeled, retailers must keep the relevant documents for one year. 7 C.F.R. § 60.400(c)(3).

Suppliers who deal directly with retailers are responsible for providing the retailer with the documentation relating to country of origin and methods of production. 7 C.F.R. § 60.400(b)(1). Suppliers who are responsible for the country of origin and/or method of production claim(s) are expected to have the documentation to substantiate those claims. 7 C.F.R. § 60.400(b)(1). Nevertheless, all suppliers whose commodities end up being sold to a retailer must keep documents for one year indicating where the product was purchased and where it was sold. 7 C.F.R. § 60.400(b)(3). The initial importer must keep records tracking the commodity from its entry into the United States to the time it reached its immediate recipient for a period of one year from the date of transaction. 7 C.F.R. § 60.400(b)(4). All those documents must reflect the country of origin and method of production of the commodity. Willful violations on the part of a retailer may result in up to $10,000.00 in fines for each violation. 7 U.S.C. § 1638b. The retailer is entitled to notice and a hearing before the Secretary of Agriculture.

Amendments to the COOL law were approved by Congress in the 2008 Farm Bill, Pub. L. No 110-246 § 11002. The AMS published an interim final rule in August 2008, and their final rule in January 2009, attempting to clarify some of the confusion and discontent specifically related to COOL labeling of meats under the law. The Secretary of Agriculture at the time, Secretary Vilsack, sent a letter shortly after the final rule was announced, encouraging meat and food industries to voluntarily adopt the new labeling changes. The final COOL regulations went into effect on March 16, 2009.

The COOL requirements were quickly faced with legal challenges from within the World Trade Organization (WTO). Mexico and Canada threatened to impose over 1 billion dollars of tariffs against the United States unless labeling was removed. In 2015, due to this pressure, President Barack Obama signed an appropriations bill which removed COOL requirements for beef and pork. In turn, USDA Secretary Vilsack soon issued a statement that the COOL rule would no longer be enforced for those commodities.

COOL Requirements for Beef and Pork

The requirements for listing the country of origin for beef and pork products were specifically outlined in the COOL law. The requirements have since been altered and repealed through the evolution of the proposed regulations and litigation with the WTO. The original regulations provided that if the product had not undergone a substantial transformation in the United States, its country of origin was the country declared to the U.S. Customs and Border Protection. 7 C.F.R. § 60.200(f). However, if the product underwent a substantial transformation in the United States, the product must have been labeled as “product from [the country it was imported from] and processed in the U.S.” or “Product of Country X and the United States.” 7 C.F.R. § 60.200(g)(2). If commodities were sold together, with only a part of a commodity undergoing a substantial transformation in the United States, all the countries of origin had to be disclosed. 7 C.F.R. § 60.200(h). Similarly, commodities that had different countries of origin and/or methods of production could still be sold together, so long as all the countries and methods were listed, pursuant to 7 C.F.R. § 60.300(d).

In December of 2008, Canada brought suit, and was joined shortly after by Mexico, against the United States’ COOL requirements for beef and pork. In November 2011, the WTO panel found that the COOL requirements were inconsistent with the United States’ obligations under the WTO Agreement on Technical Barriers to Trade (TBT). The panel reasoned that this was a violation of the agreement because the regulations accorded less favorable treatment to imported cattle and hogs than like domestic products and did not fulfill its legitimate objective of providing consumers with information on origin.

Both the United States and Canada appealed portions of the WTO Panel ruling in March of 2012. The WTO Appellate Body issued a ruling in June of 2012, which upheld the panel’s earlier ruling as to the preferential treatment of beef and pork violations, but reversed the findings related to fulfilling legitimate informational objectives. The Appellate Body further agreed that the recordkeeping and verification requirements under COOL created a detrimental impact on imported livestock because the law incentivized producers to use exclusively domestic livestock. Following the Appellate ruling the United States was given until May 23, 2013 (a date that was deemed a reasonable amount of time by the WTO) to rework the regulations to conform to WTO directives. The United States complied and on May 23, 2013 issued an amended COOL requirement concerning meat and fish commodities. Regulations for meat, fish, and shellfish (7 CFR part 65) amended the definition of “retailer” to include any person subject as a licensed retailer under the Perishable Agricultural Commodities Act (PACA) (7 U.S.C. 499(a)(b)).

The amended COOL requirements required processors of meat to be more specific, and to include information about their production steps. 7 C.F.R. § 65.300(e). For example, labels for animals born, raised, and slaughtered exclusively in the United States would read, “Born, Raised, and Slaughtered in the United States.” Other labels might read, “Born and Raised in Canada, Slaughtered in the United States” or “Born in Mexico, Raised and Slaughtered in the United States.” At the time the amendments became effective, processors were given a six-month compliance window.

In August of 2013, Canada and Mexico challenged the revised COOL requirements at a WTO dispute panel. An October 2014 WTO Compliance Panel ruled that Canada and Mexico were successful in arguing that the revised rule was a technical barrier to trade because of the increased production segregation and recordkeeping requirements. The United States appealed the ruling. In May of 2015, a WTO Appellate Body confirmed the Panel’s ruling against the U.S., finding against the revised COOL regulations. In December of 2015, Canada and Mexico were granted approval by the WTO to move forward with approximately $1.01 billion worth of retaliatory tariffs against the United States.

Throughout the WTO challenges, several bills were presented in the House and Senate that aimed to repeal the COOL requirements, but none were successfully passed into law. However, in 2015, Congress passed the 2016 Consolidated Appropriations Act, an omnibus spending bill, Pub. L. NO. 114-114, that repealed all COOL requirements from muscle cuts of beef and pork, and ground beef and pork. USDA Secretary Vilsack also sent out guidance that the USDA will no longer enforce the COOL regulations for beef and pork in accordance with the law. Thus, retailers are no longer required to provide COOL at the point of sale. However, COOL regulations and requirements are still in full effect for the following products: chicken, lamb, goat, farm-raised and wild caught fish and shellfish, perishable agricultural commodities, peanuts, pecans, macadamia nuts, and ginseng.

What to Watch For

Since the repeal of COOL requirements for beef and pork in 2016, some consumer advocates and livestock producers have called for reinstituting labeling requirements. In 2017, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) and the Cattle Producers of Washington (CPoW) sued the USDA, alleging that current regulations harm consumers and producers by allowing foreign meat “to be passed off as domestic product.” However, the court found that the challenge did not fall within the applicable statute of limitations and concluded that COOL regulations “followed Congress’s clear intent.” Recently, some state legislatures have also attempted to reinstitute country of origin labeling requirements for beef and pork but have been unsuccessful thus far.

The USDA has announced plans to revisit COOL regulations, although the USDA has yet to give a timeline on any sort of formal analysis. The USDA has felt pressure from many farm advocacy groups including those above. State legislatures have taken up the issue as well. Montana tried to revive a law similar to the federal COOL requirements. The state abandoned the bill once federal COOL regulations were in place, but the partial repeal of the federal requirements has started new conversation.

Recently, Senators Tammy Baldwin and Rick Scott have sponsored a bill titled “COOL Online Act.” If passed, the COOL Online Act would apply COOL requirements to e-commerce. The legislation would not be adding new labeling requirement. Instead, the legislation would extend COOL requirements to products sold online that are already subject to COOL requirements when sold in store.

Recently, South Dakota Senator John Thune sought to amend the Agricultural Marketing Act of 1946 by introducing the American Beef Labeling Act of 2023. This act would only allow beef that was born, raised, and slaughtered in the United States to be labeled as “Product of the U.S.A.” The act would not require any labeling of foreign beef.