After WTO case, Congress repeals beef labels

Last week, Congress passed the $1.1 trillion Omnibus Bill to keep the government running. And do lots of other stuff, as Tessa Berenson’s listicle reports.

 

Buried in this massive legislation was Section 759, which reads like a nothing burger:

 

(a) Section 281 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1638) is amended— (1)by striking paragraphs (1) and (7); (2) by redesignating paragraphs (2), (3), (4), (5), (6), (8), and (9) as paragraphs (1), (2), (3), (4), (5), (6), and (7), respectively; and (3) in paragraph (1)(A) (as so redesignated)— (A) in clause (i), by striking beef, and , pork,; and (B) in clause (ii), by striking ground beef, and , ground pork,.
(b) Section 282 of the Agricultural Marketing Act of 1946 (7 U.S.C. 1638a) is amended— (1) in subsection (a)(2)— (A) in the heading, by striking beef, and pork,; (B) by striking beef, and pork, each place it appears in subparagraphs (A), (B), (C), and (D); and (C) in subparagraph (E)— (i) in the heading, by striking beef, pork,; and (ii) by striking ground beef, ground pork, each place it appears; and (2) in subsection (f)(2)— (A) by striking subparagraphs (B) and (C); and (B) by redesignating subparagraphs (D) and (E) as subparagraphs (B) and (C), respectively
Unless you are an agribusiness lobbyist, you wouldn’t realize that this language repeals country of origin labels for meats.

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This congressional action is noteworthy, for a few reasons.
It suggests a congressional realignment on food regulation. In the oughts, consumers were increasingly grossed out by meat production in the fast food industry. Eric Schlosser wrote an expose on the practices (Fast Food Nation), which later became a movie. I can’t unread this phrase from the book:
The days when hamburger meat was ground in the back of a butcher shop, out of scraps from one or two sides of beef, are long gone. Like the multiple sex partners that helped spread the AIDS epidemic, the huge admixture of animals in most American ground beef plants has played a crucial role in spreading E. coli 0157:H7. A single fast food hamburger now contains meat from dozens or even hundreds of different cattle.
By 2008, one of the prices a Democratic Congress put on a new Farm Bill was for the Bush administration to approve more transparent labeling for the origin of beef. It was left for the Obama administration to actually write the rule for so-called country of origin labeling (COOL), which it did soon after taking office. Fast forward to 2015, and a Republican controlled Congress stealthily repeals that accomplishment, with an assist from Obama.
Moreover, international law cast a shadow on the whole process. Even before the Bush administration left office, Canada and Mexico were threatening to challenge COOL at the World Trade Organization (WTO). They claimed the whole scheme violated trading rules, and in 2012, the group’s appellate body sided with them… in part. Ujal Singh Bhatia of India, Ricardo Ramirez Hernandez of Mexico, and Peter Van den Bossche of Belgium – the adjudicators assigned to the case – found that the US labels placed a burden on the use of Mexican and Canadian beef and pork cuts. But they found that the two countries overreached in their arguments on ground beef and pork. (For an extensive analysis of some of the quirkier aspects of their decision, see this piece I wrote at the time.  For the legal decisions themselves, see the WTO website.) The US made some changes to COOL in an effort to comply with the WTO decision. Ultimately, further groups of adjudicators ruled against these efforts as well. And earlier this month, the WTO authorized over $1 billion in
sanctions against the US.
The case upset the emerging narrative about North American harmony. Wunderkid Justin Trudeau has being lauded for lessening Canadian tensions with the US, and gushing over his admiration for Obama. But in one of her first acts in office, Trudeau’s trade minister (and former journalist) Chrystia Freeland was threatening a trade war with the US over COOL.
It also shows the limits of the social science concepts we use to understand the intersection between domestic and international law. There has long been a worry that global trading rules could make for a “regulatory chill” on domestic regulation. In this story, international legal rulings (or the threat thereof) are a neoliberal superstructure that have a chilling effect on more interventionist public interest regulations.
Scholars have found scarce evidence of regulatory chill, and have even argued for a “California effect”, whereby countries race to the top (not the bottom) in an effort to build an eco-friendly brand.
This WTO case is neither chilling effect or California effect. Indeed, congressional leaders cited the WTO loss as the reason for repealing COOL. Yet they went further than the ruling actually required, repealing the labels for ground beef and pork as well. As the pro-COOL National Farmers Union said last week:

The language to repeal most significant components of COOL is contained as a rider in the 2016 Appropriations Act. Johnson noted that the language goes well beyond the WTO dispute, repealing COOL for ground beef and pork – two products that were explicitly found to be trade compliant.

“Clearly this language was produced by long-time COOL opponents who legislated in the dark of the night under the guise of solving an issue, when really their intentions completely undermine the will of American consumers and producers,” said Johnson. “NFU is furious that yet again the dysfunction of Congress has enabled this to happen.”

 

I call this a chilling inflect. It occurs when domestic political actors weaken their own laws – rhetorically making use of international legal orders, but going beyond them to chart their own additional deregulatory course.

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