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”).
 33
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.