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From: TSS ()
In Reply to: BSE TESTING CREEKSTONE VS USDA BROWN & DETWILER DECLARATIONS posted by TSS on November 11, 2006 at 3:03 pm:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CREEKSTONE FARMS PREMIUM BEEF, LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. WILD OATS MARKETS, INC. 3375 Mitchell Lane Boulder, Colorado 80301 Proposed Amicus Curiae. Civil Action No. 06-544 (JR) MOTION FOR LEAVE TO APPEAR AS AMICUS CURIAE IN OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Wild Oats Markets, Inc. ("Wild Oats"), a party interested in the outcome and desiring to assist the Court in resolving it, hereby files this amicus curiae and to present argument in opposition to the cross-motion filed in this matter [dkt. 10] by the United States Department of Agriculture Mike Johanns (together, "the USDA"). Reason to Appear Wild Oats submits this motion to address one point asserted in the USDA that testing for bovine spongiform encephalopathy ("BSE") is "worthless" food safety or marketing purposes. See USDA Consolidated Memorandum in _ 7235557 1 Cross-Motion ("USDA Mem."), at 1, 5, 42. As discussed below, testing of would eliminate from the food supply meat from animals with elevated Consumers would therefore benefit from testing and from being informed truthful, nonmisleading marketing programs. Position of the Parties on this Motion Prior to filing this motion counsel for Wild Oats sought consent from Creekstone and counsel to USDA. Counsel for Creekstone advised that objection to Wild Oats' participation in this matter as amicus curiae. that the government objected to Wild Oats' participation in the case as Interest of Wild Oats Wild Oats is a leading national retailer of natural and organic food. operates 74 full service supermarkets in 23 states, each offering highest quality food, health and wellness products. The company was mission is to enhance the lives of its customers, employees, and successful business based on products and education that support health Wild Oats uses great care in selecting the products it offers for sale company's commitment to quality is unsurpassed in the industry, and it based on scientific research to ensure that all of the products it sells artificial colorings, preservatives, flavorings or other synthetic feature products that contribute to its customers' health and with product manufacturers and vendors that meet rigorous environmental Wild Oats is also responsive to its customers' concerns. At the concerns is the desire to know that foods Wild Oats carries are 7235557_1 -2 Wild Oats therefore makes every effort to ensure that they are. The suppliers with this consideration in mind, and bases its decisions the most current and reliable scientific research available. Wild Oats trends and scientific developments so it is knowledgeable about the Facts Regarding BSE and Testing Among the issues of greatest concern to Wild Oats customers in recent BSE. This disease occurs when healthy cattle consume feed containing other cattle infected with BSE. The disease, which is fatal in cattle, degeneration of their mental and physical abilities, and ultimately BSE is of concern to consumers because the consumption of meat tainted believed to cause a fatal human disease, variant Creutzfeldt-Jakob past twenty years, nearly 200 cases of vCJD have been identified, and to have resulted when consumers ate beef products contaminated with BSE. Because of this risk to public health, the federal government has taken reduce the chances that consumers will exposed to beef infected with government has banned certain "specified risk materials" ("SRM") derived from use as human food. SRM include animal parts in which BSE be greatest in diseased cattle, such as the brain, spinal cord and government has prohibited the use of meat and other bovine tissues from feed. The government has also conducted testing of older and visibly assess the level of incidence of BSE within the domestic cattle herd. These measures, however, have not eliminated the risk that American contract vCJD from consuming beef infected with BSE. In fact, the 7235557_1 -3 the use of beef tissues in cattle feed have been criticized as being contamination by feed intended for non-ruminants, such as hogs and tissues can be used.1 Questions have also been raised whether the been adequately enforced.2 In addition, the government recently cut back it is doing by a substantial margin.3 Over the past several years at BSE have been identified in the domestic herd, and the government has imports from countries in which the incidence of BSE is believed to be States, including Canada.4 Protocols exist today to test cattle for BSE. In fact, the government protocols in its own limited testing program. Such testing is performed and meat from tested cattle is either held or tracked pending receipt of Creekstone Mem., at 11. As the government admits, these tests are cattle infected with BSE several months before they show visible signs USDA Mem., at 5-6. Because of concerns relating to BSE, many other developed countries been found now test all or a large portion of the cattle processed for BSE. In Europe, several countries test all cattle in excess of 24 months slaughtered, and others test all cattle in excess of 30 months of age. 1 In October 2005 the U.S. Food and Drug Administration proposed to ban feed given to any animals. See 70 Fed. Reg. 58570 (Oct. 6, 2005). That 2 See "Beef Delays in Mad Cow Protection," Consumer Reports (January 3 See "USDA to Cut Back BSE Testing Program," University of Minnesota Disease Research and Policy ("CIDRAP") (July 20, 2006) (Ex. 2). 4 See "Canada Finds Eighth Case of BSE," CIDRAP (Aug. 23, 2006) (Ex. 3). 7235557_1 -4 these tests for one reason: because testing provides additional BSE are removed from the food supply. Argument By prohibiting beef processors in the United States from testing cattle preventing them from acquiring information regarding the safety and sell, and preventing Wild Oats and other retailers from providing that Consumers want that information and would use it in making their there is no valid reason for the government to prevent them from having it. 1. Speech concerning products offered for sale to consumers is protected Amendment. Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 566 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 748, 763 (1976). The free flow of information about consumer products is proper allocation of resources in a free enterprise system because it decisions that drive the system." Rubin v. Coors Brewing Co., 514 U.S. (citation and quotation omitted). In fact, a consumer's interest in be as keen, if not keener by far, than his interest in the day's most 2. The government's ban on BSE testing implicates the First Amendment food retailers and consumers because the purpose and inevitable effect retailers from communicating information on products it sells, and to receiving it. See United States v. O'Brien, 391 U.S. 367, 377, 384-85 Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417-19 (1993); Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 582-83 (1983); Associates, Inc. v. Township of Willingboro, 431 U.S. 85, 94-95 (1977). 7235557_1 -5 response to Creekstone's request to conduct BSE testing, and the brief filed in this case, leave no doubt that USDA's policy is achieving its prevent producers from gathering and disseminating BSE test data. See 42-44 & n.24. 3. USDA claims that representations about test results would be because "a negative test on a young cow cannot be interpreted to mean necessarily 'BSE-Free.'" Id. at 5-6. Assuming this is true, Creekstone tell its customers that its products are "BSE-Free." Nor from this one to assume that every other statement that might be made about BSE misleading so as to warrant a blanket ban. While complete prohibitions speech, they also prevent truthful, nonmisleading speech, and the "simply to spare itself the trouble" of distinguishing the former from Fane, 507 U.S. 761, 775-77 (1993); Zauderer v. Office of Disciplinary 646 (1985). 4. USDA's ban on BSE testing advances no substantial governmental interest. According to the agency, a ban is needed (a) "to maintain domestic and in U.S. cattle and beef products," (b) because if individual producers products for BSE, other producers would have no choice but to test their (c) to prevent consumers from thinking that "they should pay more for cattle."5 a. The claim that "confidence in American beef would decline" is provides no basis for restricting the right of beef processors and 5 See Declaration of John D. Stewart 12-14 (Exhibit 1 to Creekstone's Judgment); id. Attachment 7 (Letter from B. Hawks to J. Stewart, June 1, 7235557_1 -6 information about their products to consumers. See Edenfield, 507 U.S. "must demonstrate that the harms it recites are real and that its them to a material degree . . . [and] mere speculation or conjecture" is 471 U.S. 648-49 ("unsupported assertions" about possible harms cannot restrictions). In fact, it is reasonable to assume that the only way domestic beef supply would be shaken is if testing revealed a domestic cattle herd. If that is true, then there is a far greater there could ever be to prevent it. b. Fear about industry impact from purchasing decisions does not permit ban information that might drive those decisions. Whether, or the extent processors felt compelled to test their products for BSE is a matter forces. If, by their purchasing decisions, consumers signal that they tested, then other processors will follow suit. If some consumers, but preference, then some processors, but not all, will test. Moreover, test can always market their products based on other factors. See 770 (if one store is allowed to advertise drug prices, second store's "nothing prevents [second store] from marketing [its] own assertedly contrasting it with [first store's]"); see also Peel v. Attorney Comm'n, 496 U.S. 91, 101 & n.10 (1990) (attorney can advertise he is advocacy organization, despite potential negative inference with respect attorneys). This process, based on the free flow of commercial products available for sale are ones that consumers want to buy. Banning obtaining and communicating information about their products interferes 7235557_1 -7 undermines the efficient functioning of the market. See Ibanez v. Business and Professional Regulation, 512 U.S. 136, 144-48 (1994); n.9; Bates v. State Bar of Arizona, 433 U.S. 350, 364 (1977). c. Speculation about how consumers might value information about BSE not a valid basis to ban producers from communicating it. "The First be especially skeptical of regulations that seek to keep people in the government perceives to be their own good." 44 Liquormart, 517 U.S. at marketplace, like other spheres of our social and cultural life, information flourish. Some of the ideas and information are vital, some general rule is that the speaker and the audience, not the government, information presented." Id. See also Edenfield, 507 U.S. at 767. Indeed that is precisely the government's approach with respect to products available on the market today: consumers, not government particular features or representations are worth any increase in cost. contain a vast array of products with characteristics that some which other consumers consider unimportant. The Court might take products, based on nothing more than a walk through virtually any where it will find a wide array of foods that contain "no artificial preservatives," others made "without use of synthetic pesticides, still more that are "caffeine free," "chlorine free," arsenic free," safe," "organic," "natural," "hand-picked," "vine-ripened," "sun-dried," processed," "aged for three years," and "filtered through layers of 6 See generally 7 U.S.C. 205.105 (USDA rules allow product manufacturers foods as "organic" if they are produced without use of "synthetic 7235557_1 -8 In sum, USDA has not articulated in its Motion for Summary Judgment any governmental interest that is served by its policy of banning beef communicating BSE test data to consumers. For all the reasons set forth Opposition to that motion, and for the reasons set forth herein, the policy null and void. Conclusion For all the foregoing reasons, Wild Oats seeks leave to appear as amicus matter, and to present the arguments in this brief, upon which it urges Motion for Summary Judgment. Respectfully submitted, signature Thomas B. Smith D.C. Bar No. 412192 ROPES & GRAY LLP One Metro Center 700 12th Street, NW Washington, DC 20005 (202) 508-4600 Counsel for Wild Oats Markets, Inc. Date: November 3, 2006 (FDA rules allow food to be labeled as "kosher," as long as they "meet requirements."); sheet on labeling terms allowed, including "certified" as an official 7235557_1 -9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CREEKSTONE FARMS PREMIUM BEEF, LLC, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants. Civil Action No. 06-544 (JR) ORDER Upon consideration of the Motion for Leave to Appear as Amicus Curiae in Opposition to Defendants' Motion for Summary Judgment filed by Wild Oats Inc., it is hereby ORDERED, that said motion be and hereby is GRANTED. Hon. James Robertson United States District Judge Date: _________________ Serve All Counsel _ 7235557 1 CERTIFICATE OF SERVICE I certify that, on this 3d day of November 2006, I caused the foregoing served on the following counsel of record in this case by first class Counsel for Plaintiff Creekstone Farms Premium Beef, LLC: Russell S. Frye FRYELAW PLLC P.O. Box 33195 Washington, DC 20033-0195 William L. Miller THE WILLIAM MILLER GROUP, PLLC 2248 Hall Place, NW Washington, DC 20007 Counsel for Defendants United States Department of Agriculture and Mike Johanns: James J. Gilligan Edward H. White U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW, Room 6110 Washington, DC 20530 signature Thomas B. Smith -2
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