An examination of whether U.S. country of origin labeling legislation plays a role in protecting consumers from contaminated food.

Author:Johnecheck, Wendy A.
 
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INTRODUCTION

Growing numbers of consumers have concerns about the safety of the U.S. food supply. (1) A series of nationwide food recalls has heightened consumers' awareness of the complexity and increasingly global scale of food supply chains and weakened their confidence in government and industry food safety oversight. These public health scares have not been isolated to a particular geographic region or food item, but rather have spanned the food sector. The contaminated food items range from E. coli-tainted Californian spinach, to salmonella-spoiled U.S. peanuts and Mexican jalapeno peppers, to various melamine-adulterated Chinese food products. As consumers search for ways to guard against contaminated food, interest in knowing the source of their food at point of purchase has grown. (2) Media coverage of food recalls has further fueled this interest by suggesting that retail-level food origin labeling will help make the U.S. food supply safer for consumers. (3)

This growing consumer interest in food safety has played a prominent role in the recent federal implementation of a measure that extends pre-existing origin labeling requirements to previously exempt food and agricultural products. The legislation and corresponding regulation, primarily referred to by its acronym, COOL (country-of-origin labeling), do not have food safety and public health as objectives, but instead aim to fulfill a marketing objective. The stated purpose of the regulation is to provide point of purchase country-of-origin information to consumers in order to aid their buying decisions. (4) Despite the insistence of the U.S. government that COOL is not a food safety measure, (5) many consumers remain concerned about food safety and quality standards outside the United States and consequently would like to use information about the origins of their food to inform their purchasing decisions.

In light of this background, it is important to examine whether consumers can effectively use COOL information to reduce their risk of consuming contaminated food. It is also important to consider a separate, but closely related question of whether government and industry can use the verification system underpinning the country-of-origin labeling requirements to facilitate the trace-back of a contaminated food item to its source.

This Article addresses these two questions by first providing an overview of the statutory and regulatory authority governing origin requirements for food products in the United States. Parts I and II examine the primary legislation in place prior to the implementation of the U.S. COOL legislation, and Part III outlines the details of the COOL regulatory regime. An in-depth understanding of the coverage and the specific requirements of these regulatory measures is crucial to examining their potential role, or lack thereof, in food safety risk mitigation. Part IV then considers the extent to which COOL could be used to help safeguard consumers from contaminated and adulterated food. This discussion draws on the preceding overview to illustrate some of the limitations of the current regulatory framework in serving this broader purpose. The Article concludes with thoughts on potential linkages between existing country-of-origin labeling traceability requirements and food safety traceability legislation potentially on the horizon.

  1. U.S. COUNTRY-OF-ORIGIN REQUIREMENTS PRIOR TO COOL

    Prior to the implementation of the U.S. COOL legislation, various statutes and regulations governed the provision of food origin information. (6) This Part will focus on the primary legislation regulating country-of-origin requirements for agriculture products in the pre-COOL period: the Smoot-Hawley Tariff Act of 1930 (Tariff Act). (7) Under this Act, the Bureau of Customs and Border Protection (CBP) is the agency responsible for administering country-of-origin marking requirements for all imported items. (8) The Tariff Act mandates that all imported products be marked with their originating country information, and that the information remains with an article until it reaches an ultimate purchaser. (9) In the case of goods imported in consumer-ready packages destined for retail outlets, the implementation of this legislation is relatively straightforward as the marking is affixed to the package and present upon entry into the United States. Examples of such agricultural products are canned ham, packaged steak, bagged frozen vegetables, canned fruits and vegetables, and olive oil.

    For other products, however, the definition of the term ultimate purchaser determines the extent to which marks of origin need to be maintained throughout the supply chain. Since this term is not defined in the Tariff Act, CBP has promulgated regulations interpreting it to mean the last person who will receive the article in its imported form. The regulation provides further explanation by stating that when an imported article is used in a manufacturing process, the manufacturer is considered the ultimate purchaser if the process results in a substantial transformation of the item. However, if the manufacturing process "leaves the identity of the imported article intact," the ultimate purchaser is the consumer who uses the product after such minimal processing. (10)

    This regulation fails to resolve both the ambiguity surrounding the determination of what entity constitutes the ultimate purchaser, and subsequently how far along the supply chain country-of-origin markings are required. Instead, it introduces an equally nebulous concept, that of substantial transformation. The substantial transformation standard has evolved based on a series of federal court decisions dating from as early as 1908. (11) The present day understanding of this standard is that it constitutes a process by which an article is changed into a new item by taking on a new name, character, or use. (12)

    Based on the authority delegated to the CBP under the Tariff Act, the determination of whether an imported good is deemed to be substantially changed by a U.S. processor is often decided on a case-by-case basis. If CBP rulings determine that a product qualifies as being substantially transformed by a U.S. processor, the manufacturer is then considered the ultimate purchaser and the new product does not need to be marked with originating country information. In such cases, the original imported article is not required to be marked individually at the border. However, the containers carrying the imported good must be marked with the originating country information until the good reaches the U.S. processor. (13)

    The Tariff Act includes other exceptions to the individual product marking requirements. These exceptions are primarily based on the nature of the product or conditions of importation. (14) The "J-list," so-called for the statutory sub-section title, stands out amongst these exceptions because it provides exemption from marking requirements to individual items, rather than basing exemption on specified criteria. (15) The list is comprised of over eighty items, amongst which livestock and natural products, such as vegetables, fruits, nuts, berries, live or dead animals, and fish or birds are included. (16) Many of the J-list exempted agricultural products are now covered by the COOL regulation.

    Although these products are exempt from the general Tariff Act marking requirements, certain marking rules still apply. For example, containers holding imported J-list items are required to be marked with the country-of-origin information until they reach the ultimate purchaser. (17) In the case of fresh produce, such as Mexican avocados or New Zealand apples, the ultimate purchaser is often the consumer at a retail store, and therefore origin information has to be maintained on their container at least until the product reaches the retail store. In this setting, CBP has ruled that when fresh produce is taken out of its container and placed in a bin or display case, there is no obligation to provide country-of-origin information. (18) If imported fresh produce, such as a Mexican tomato, has been packaged or re-packed in a retail container, however, the container must identify the originating country, notwithstanding the J-list individual marking exemption. (19) As one can see from these examples, the J-list exemption does not provide full immunity from the general marking requirements of the Tariff Act for many imported agricultural products.

  2. LEGISLATIVE INTENT OF THE 1930 TARIFF ACT ORIGIN LABELING REQUIREMENTS

    The congressional intent behind the inclusion of country-of-origin marking requirements within the original tariff legislation is not entirely clear. It may be that the requirements were necessary as part of administering customs duties. Court decisions have determined that the congressional intent behind such requirements was consumer oriented, in that the markings would allow consumers to "buy or refuse to buy" goods depending on their preferences. (20) Furthermore, Congress recognized that many consumers prefer "United States" goods, and sought to "confer an advantage on domestic producers of competing goods." (21) It is important to note that, similar to the COOL measure, the original statute governing country-of-origin marking requirements in the U.S. was not instituted on food safety grounds.

    The underlying rationale behind creating the J-list of exemptions, however, is particularly hard to pin down. According to Ruyak, "the reasons for granting exception for these items are probably as varied as the listing itself." (22) A Congressional Research Service memo examining the basis for including livestock on the J-list notes that one explanation relates to the difficulty of affixing individual marks to livestock. (23) This rationale would apply to the other agricultural products exempted under the J-list as well.

  3. THE COOL LABELING REGIME

    The COOL statute--introduced initially...

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