On March 11, the Tenth Circuit dismissed a pair of lawsuits that alleged Tyson Foods, Inc., Cargill Meat Solutions, Corp., JBS USA Food Company, and National Beef Packing Company, LLC, used deceptive and misleading “Product of the USA”  labels on their beef products that did not originate from cattle born and raised in the United States (subscription to Law360 required). Plaintiffs Thornton and Lucero separately sued the companies and alleged the “Product of the USA” label misled consumers because the beef had been imported from other countries and only packaged in the US. The cases were consolidated on appeal.

In a split opinion, the majority affirmed the dismissal because the plaintiffs’ state-law claims are preempted by federal law. The Tenth Circuit confirmed the opinion of the district court, which found that the state law claim was preempted by the express language of the Federal Meat Inspection Act in that it would create labeling requirements “in addition to, or different than” the USDA’s standards. A summary of the district court opinion is available here.

The Tenth Circuit noted that its preemption ruling is further supported by an executive order that was highlighted by the plaintiffs. Executive Order No. 14,036 directed the Secretary of Agriculture to “consider initiating a rulemaking to define the conditions under which the labeling of meat products can bear voluntary statements indicating that the product is of United States origin, such as ‘Product of USA.’” Although the plaintiffs’ contended that the order supported their position, the court found it provided further support for preemption.

As our readers know, in July of 2021, the USDA announced the initiation of a top-to-bottom review of the voluntary “Product of USA” claim. As part of the review, the USDA’s FSIS is conducting an online survey to gauge consumer awareness and understanding of current “Product of USA” labeling claims on meat products and consumer willingness to pay for meat products labeled with that claim or a potentially revised definition of the claim. The USDA has also published a notice and request for comment on the survey effort and “Product of USA” claim. The comment period is open until April 4, and comments can be submitted to www.regulations.gov, using Docket ID: FSIS-2021-0031.