Archive for the ‘Country of Origin’ Category

How Could the Trans Pacific Partnership Affect you or your Business

Tuesday, April 19th, 2016

On February 4, 2016, President Obama signed the Trans Pacific Partnership Agreement on behalf of the United States. The TPP agreement has been in negotiation behind closed doors since 2010 between the United States and 11 other countries around the Pacific Rim: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. The TPP is a “docking agreement” so other countries could be added without the approval of Congress. India, China, and Korea have expressed interest in joining the TPP.

Our elected representatives in Congress had no involvement in writing the TPP – it was written by the staff of the U. S. Trade Representative office, with over 600 corporate advisors (think corporate lawyers) helping them write it. It contains more than 5,500 pages, and no member of Congress could view it as it was being negotiated until late 2014. Even then, they could not take any staff with them and were not allowed to take pen, pencil, paper, or a camera when they went to view it at the U. S. T. R.’s office.

The full text of the TPP was finally released to the public to review in November 2015, and it now awaits Congressional approval. According to the rules established by the Trade Promotion Authority (TPA) that passed Congress narrowly in June 2015, Congress will only be allowed 45 days for committee analysis after the bill is introduced, only 15 days after that is completed to bring it up for a floor vote, and only 20 hours of debate in the House and Senate. The TPA does not allow any amendments, filibuster, or cloture. Notice that the TPP is called an “Agreement,” as was NAFTA, CAFTA, KORUS, and every other trade deal in the past 22 years. The purpose for this is to get around the requirement of the two-thirds vote of the Senate to approve a Treaty that is required under Article 1, Section 8 of the Treaty clause in the U. S. Constitution. The TPP requires only a simple majority vote (50% + one.)

Supporters of the TPP say that it represents 40% of the world’s economic activity (GDP), but they fail to mention that the U. S. and its current trading partners represent 80% of that 40%. The other five countries represent the other 20%, with Japan alone being 17.7% of that total.

The current goal of trade agreements as given by Congress to the U.S.T.R is to “remove trade barriers,” such as tariffs, quotas, etc. and increase U. S. exports. The U. S. cut tariffs and opened our markets by means of these trade agreements. However, our trading partners didn’t really open their markets to us. They played another game ? mercantilism, featuring rampant global currency devaluation, consumption taxes called Value Added Taxes (VATs) that are tariffs by another name, massive subsidies to their industries, and industrial policies that favor their domestic supply chains.

In brief, the effect to the United States of this unbalanced trade has been:

  • Loss of >600,000 mfg. jobs from NAFTA
  • Loss of 3.2 million mfg. jobs between 2000 – 2010 from China’s entry into WTO
  • Loss of >60,000 mfg. jobs since Korea-US Agreement went into effect in 2012
  • Loss of an estimated 3.4 million U. S. service & call center jobs since 2000
  • Loss of an estimated 700,000 public sector jobs (2008-2013)
  • Racked up cumulative trade deficit of $12 trillion in goods (average $500 billion each year) since 1994

As a result, we now have the worst trade deficit in U. S. history, and we are off to even a higher deficit this year based on the trade figures released for January ($45.9 billion) and February ($47.1 billion). As a recent example of the effect of trade agreements on our total trade deficit, our trade deficit with Korea has nearly doubled in less than four years, increasing from $14.7 billion in 2012 to $28.4 billion in 2015. Proponents of KORUS promised that it would create 70,000 jobs and $10 billion in exports.

As mentioned in a previous article, proponents of the TPP aren’t even giving such rosy predictions. The Peterson Institute’s analysis of the TPP states: “…GDP is projected to fall slightly (-0.54 percent), employment to decline by 448,000 jobs…”

What are some of the ways the TPP could affect you or your business?

Buy American Act would essentially be made Null and Void: The worst effect would be to those businesses who sell to the government, whether it be local, state, or federal because under the TPP procurement chapter, the U.S. would have to agree to waive Buy America procurement policies for all companies operating in TPP countries. This means that all companies operating in any country signing the agreement would be provided access equal to domestic firms to bid on government procurement contracts at the local, state, and federal level. There are many companies that survived the recession and continue in business today because of the Buy American provisions for government procurement, especially defense and military. The TPP could be a deathblow for companies that rely on defense and military contracts. However, it would also affect procurement for infrastructure projects, such as bridges and freeways, as well as construction of local, state, or federal facilities.

Of course, this means that U. S. companies could bid on government procurement projects in TPP countries, but the trading benefit is miniscule. The U. S. government procurement market is 7X the size of current TPP partner countries (+550 billion vs. $55 -70 billion.) It is also highly unlikely that U. S. companies would be the low bidder against domestic companies in these TPP countries because of the vast difference in wages in countries such as Vietnam, where the average wage is 55 cents/hour. Past trade agreements has resulted in an average annual wage loss of 5.5% for full-time workers without college degrees, and U. S. wages have been stagnant for decades, growing by only about 2% per year since 2008. The result has been increased wage inequality from low to high wage earners.

Product Labeling could be Made Illegal: If you like to know if your food is safe, then you won’t like the fact thatCountry of Origin,” “Non-GMO,” or “Organic” labeling could be viewed as a “barrier to trade” and thus be deemed illegal. According to Food & Water Watch, around 90% of the shrimp and catfish that Americans eat are imported. They warn, “The TPP will increase imports of potentially unsafe and minimally inspected fish and seafood products, exposing consumers to more and more dangerous seafood.” Many TPP countries are farm-raising seafood in polluted water using chemicals and antibiotics prohibited in the U. S. Farmed seafood from Malaysia, Vietnam, and China is being raised in water quality equivalent to U. S. sewers. Today, the FDA only inspects 2% of seafood, fruits and vegetables, and the USDA only inspects 4-5% of meat & poultry. Increased imports of food from TPP trading partners could swamp FDA and USDA inspections, so that even less is inspected.

TPP would Increase Immigration: If you are concerned about jobs for yourself or family members, then you won’t like the fact that the TPP increases “the number of L1 visas and the number of tourist visas, which can be used for business purposes.” Any service provider (phone service, security, engineers, lawyers, architects or any company providing a service) can enter into a TPP partner country and provide that service. Companies don’t have to hire Americans or pay American wages – they can bring in own workers and pay less than the American minimum wage.

TPP would Increase Job Losses in Key Industries: If you work in the automotive or textile industries, you may lose your job. The Center for Automotive Research projects a loss of 91,500 U. S. auto jobs to Japan with the reduction of 225,000 automobiles produced in the U. S. Also, the National Council of Textile Industries projects a loss of 522,000 jobs in the U. S. textile and related sectors to Vietnam.

TPP would Reduce Reshoring: Because TPP will reduce tariffs in trading partner countries, such as Vietnam, it will make the Total Cost of Ownership analysis to return manufacturing to America more difficult to justify. The high U. S. dollar has already diminished reshoring in the past year, so Harry Moser, Founder and President of the Reshoring Initiative, recently told me that “The combination of the high USD and TPP will reduce the rate of reshoring by an estimated 20 – 50%.”

Remember that the TPP is missing any provisions to address the mercantilist policies practiced by our trading partners: currency manipulation, Value Added Taxes that are both a hidden tariff and a hidden export subsidy, government subsidies/state owned enterprises, and “product dumping.”

 America is at a crossroads. We can either continue down the path of increasing trade deficits and increasing national debt by allowing anything mined, manufactured, grown, or serviced to be outsourced to countries with predatory trade policies. Or, we can forge a new path by developing and implementing a national strategy to win the international competition for good jobs, sustained economic growth and strong domestic supply chains. If you support the latter path, then add your voice to mine and millions of others in urging Congress not to approve the TPP in either the regular session before the Presidential election or the “lame duck” session after the election.

What would be the Impact of the Trans Pacific Partnership Agreement?

Monday, April 20th, 2015

Last Thursday, Senators Hatch, Wyden, and Ryan introduced “The Bipartisan Congressional Trade Priorities and Accountability Act of 2015,” which is the Trade Promotion Authority bill that would grant President Obama “fast track” authority for the Trans Pacific Partnership Agreement.

The TPP agreement has been in negotiation since 2010 between the United States and 11 other countries around the Pacific Rim: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam. The TPP would cover 792 million people and 40% of world’s economic activity. It is a “docking agreement” so other countries could be added, and India, China, and Korea have expressed interest in joining the TPP.

There has been no involvement by Congress in the writing of the Agreement; instead, 600 corporate advisors have worked with the U. S. Trade Representative and his staff to write the more than 1,000 pages of the Agreement. Members of Congress did not even have access to view the Agreement until last year, and they cannot take any staff with them and are not allowed to take pen, pencil, paper, or a camera when they go view it at the U. S. T. R.’s office.

This Act would give Constitutional power over trade to the President and take it away from Congress. It would allow the Executive Branch to conclude negotiations and sign the Agreement before a vote by Congress. It allows only 45 days for committee analysis and only 15 days to bring it up for floor vote. It allows only 20 hours of debate by Congress and eliminates amendments, filibuster, and cloture. It requires only simple majority vote in the Senate and House whereas the U.S. Constitution Article 1, Section 8 Treaty clause requires 2/3 vote of Senate. The TPP would remain in effect until 2018, but could be extended to 2021.

What is missing in the TPP

 The TPP does not address any of the “predatory mercantilist” actions that our current trading partners are using that have created the enormous trade deficit that I wrote about a few weeks ago. These policies are: currency manipulation, “border adjustable” taxes called Value Added Taxes (VATs), which are a tariff by another name, government subsidies for State-Owned Enterprises, and “product dumping” by manufacturers in one country at below their cost to produce to destroy competition in another country.

Over 20 countries, representing 1/3 of global GDP, are engaged in currency wars” by undervaluing their currency. These governments work with their central banks to manipulate the currency value in order to provide a competitive advantage to boost exports and impede imports. China’s currency is estimated to be 25-40% undervalued. As Paul Volcker, former Secretary of the Treasury, has explained, “In five minutes, exchange rates can wipe out what it took trade negotiators ten years to accomplish.” Foreign government intervention in foreign exchange markets is manipulation, not free trade.

Value Added Taxes (VATs) range from a low of 10% to a high of 24%, averaging 17% worldwide. The U. S. is one of a handful of 159 other countries that do not charge a VAT. This means that American products that are exported are an average of 17% more expensive when imported by a country that adds a VAT. In reverse, foreign imports are an average of 17% less expensive because the U. S. does not charge a VAT. Thus, we reduce tariffs through our trade agreements only to have our trading partners add a tariff by another name to the cost of our products that we export. This gives other countries an unfair competitive advantage in the global marketplace.

We have all read news stories about “product dumping” cases against U. S. industries, such as the tires, steel, and solar panel industries. With regard to government subsidies, the best example is how Foxconn was able to get Apple’s business for manufacturing the iPhone, iPad and now the iWatch because the Chinese government gave them the land and built the building for them.

What is wrong with the TPP?

 The TPP overrules prior acts of Congress and destroys our national sovereignty. For example:

 Buy American Act made Null and Void: For the manufacturing industry for which I play a role, the most adverse effect would be that the U.S. would have to agree to waive Buy America procurement policies for all companies operating in TPP countries. What this means is that the TPP’s procurement chapter would require that all companies operating in any country signing the agreement be provided access equal to domestic firms to bid on government procurement contracts at the local, state, and federal level. There are many companies that survived the recession and continue in business today because of the Buy American provisions for defense and military procurement. The TPP could be a deathblow for companies that rely on defense and military contracts, such as the U. S. printed circuit board industry. Most of the commercial printed circuit manufacturing was already offshored to China and South Korea years ago.

Product Labeling: Country of Origin Labeling, labeling of GMO products, and “organic” labeling could be made illegal because of being viewed as an “illegal trade barrier.” Even the health warnings on tobacco products could be viewed as an “illegal trade barrier.”

Many TPP countries are farm-raising seafood using chemicals and antibiotics that are prohibited in the U. S. and farmed seafood from China is being raised in water quality equivalent to U. S. sewers. According to Food & Water Watch, around 90% of the shrimp and catfish that Americans eat are imported. They warn, “The TPP will increase imports of potentially unsafe and minimally inspected fish and seafood products, exposing consumers to more and more dangerous seafood.”

Bill Bullard, CEO of R-CALF USA (Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America) has stated “that fast food restaurants are not required to disclose the origins of their beef and even when restaurants say the beef is “U.S. Inspected,” it is as likely as not to be imported.” When we were in Washington, D. C. together last month, Mr. Bullard told me that the increased importation of sheep and lamb from Australia and New Zealand could wipe out the American sheep ranching industry.

The California Farmers Union recently sent a letter to Rep. Davis Valadao (R-CA) stating, “Passage of the TPP would lead to a flood of dairy imports from New Zealand chronically depressing U. S. dairy producer prices…Agricultural imports will rise dramatically under the proposed agreement…The Agreement further poses a threat to the food security that we have long enjoyed as a nation because imports will replace U. S. produced agricultural products.”

Investor State Dispute Resolution: ISDR is designed to allow foreign corporations to bypass the domestic legal system to use to fight laws they don’t like. International Tribunals, not U.S. courts, would decide on lawsuits between “investor” companies in member countries and the U. S. Foreign “investors” could file lawsuits against city, state, and federal agencies for laws and regulations that may infringe on their “expected future profits.” They can also sue for compensation for the loss of these “expected future profits.” Thus, the TPP would infringe upon states’ rights as state and local governments have the constitutional authority to enact rules governing many areas covered by the TPP. But, they will no longer have the freedom to do so in the many regulatory areas covered by the TPP.

The TPP includes hundreds of pages that govern the policies of states concerning non-trade domestic policy and state and local officials would be bound to comply with much of the Agreement’s rules and regulations.

Space doesn’t allow me to cover all of the things that are wrong with the TPP with regard to non-trade issues, such as patent and copyright laws, land use, as well as policies concerning natural resources, the environment, labor laws, health care, energy and telecommunications.

Except for the large multinational corporations that participated in writing the Agreement and are its beneficiaries, there is something for everyone to hate. Opposition to the TPP cuts across party lines ? there are Democrats, Republicans, and Libertarians opposed to many of the “leaked” provisions of the TPP. Organizations from the left to the right are opposed to the TPP as negotiated. It will hurt the 98-99% of American manufacturers who had no place at the table in writing the Agreement. It will hurt American consumers and American workers of all ages. It will harm our environment and put our food and water safety at risk. But, most of all it will destroy our national sovereignty. Now is the time for you to write, call, or email your Senator and Congressional representative to urge them to vote “no” on granting Fast Track authority.

Made in USA San Diego Brands Succeed in Apparel Market

Tuesday, August 26th, 2014

Would you be surprised to find out that San Diego has a fashion design industry? On July 30th, the Fashion Group International San Diego held a meeting, titled “Going from Designer to Manufacturer,” featuring Barrie Kauffman and Heather Haas from two San Diego based clothing lines: Fables by Barrie and Fiveloaves Twofish. Both of these brands are designed and manufactured right here in San Diego, not made across the border in Mexico and not made in China like other brands founded and still headquartered in San Diego.

Since the 1980s, the San Diego region has been known for its active sports line of clothing and shoes. In addition to the golf and sports apparel of San Diego-based Calloway and Taylor Made, other San Diego companies include: Reef, starting with casual sandals in the 1980s and branching into a complete line of men’s and women’s sportswear in 2002; Bad Boy starting with T-shirts and shorts for local surfers, skaters and motocross riders in the early eighties and expanding into action sport and combat sport lines in the 1990s; and Tribal Gear, launched in 1989 as a Southern California lifestyle inspired clothing brand, until its original San Diego based shop closed in 2012. None of these brands claim their products are “Made in USA.”

On the Fables by Barrie website, Barrie says that she started her company in 2007 to create stylish, whimsical, and head turning clothing for women. “Since 2007 I’ve been striving to meet these goals with a good mixture of kindness and elbow grease…I’m very pleased to tell you that Fables is designed, developed, and manufactured in San Diego, California USA. We take pride in being most definitely sweatshop-free…We are very aware that our creations cost a bit more than so many similar-style brands, much less knockoffs, so we want to thank you for your continued support through the years ….”

A feature article in the San Diego Union Tribune in July 2010 described her line as vintage style inspired fashions for ladies, specializing in swimwear, Western wear for women that kind of look like a chic version of the outfits on “Hee Haw,” and dresses. Kaufman makes clothes using lots of primary colors, bows, ribbons and ruffles. The popularity of her red, white and blue swimming suits, which are sold in places like South America, Puerto Rico, Israel and Australia, helped propel Kaufman from Internet saleswoman to boutique owner. She opened her first boutique, Fables by Barrie in the Hillcrest area of San Diego in April 2010.

Fiveloaves Twofish was founded by Kit Kuriakose and Heather Haas in 2009. Kit is the head fashion designer, and Heather functions as COO. Fiveloaves Twofish is a fashion design house for girls, tweens and teens. The design house was originally in the art district of Little Italy near downtown San Diego, but relocated to the Liberty Station area in and is open to the public.

The website states, “It is a fashion driven lifestyle brand for girls, tweens, and young contemporaries” and describes the collection as an “all encompassing look, attitude, and way of life,” saying they “design clothing for the up and coming generation’s needs, wants and desires.” They “design in order for girls to grow-up and enjoy each stage from 4 to 16, while allowing them to embrace the transitions from little girl, to girl, to tween. We like to call these stages the age of exploration, as girls are caught between ‘little’ girlhood and ‘juniors.’ During this age of exploration, Fiveloaves Twofish provides girls with a rich collection of varying attitudes that allows girls to play with who they will become each and every day.” The brand is sold in boutiques and department stores nationwide, with Nordstrom being one of their major department store outlets.

The website touts that “all our fashion is designed and patterned in our design house in San Diego. We take great pride that all our manufacturing from design to completion is done not only in America but also locally in San Diego, CA.We source our raw materials locally at first, using about 50% from local suppliers and 50% from overseas. All our packing material is recyclable, and waste is kept to a minimum.” The website encourages clients to wash their clothing in cold water and line dry it, saying “This is not only better for the longevity of your clothing, it is also easier on the planet.”

Fiveloaves Twofish’s website offers a challenge to clients: Know what you buy and read labels. Buy from companies that treat workers, animals and the environment with respect.

Barrie and Heather were asked by the moderator to describe how “went to market.” Barrie explained that “Going to market” means exhibiting in a major trade show in the fashion industry. The market calendar means that you sell your spring line in August and October, and your fall line in January and March. Barrie said that she started selling at craft shows in 2007 and “went to market” in 2009. She started with two swimsuits and one pair of shorts at the Magic show in Las Vegas.

Heather said they started in a tiny studio with 10 – 15 of each style, and it was a matter of either going to market or closing down. They went to market at a children’s show in New York in 2010 as that is where you have to go for children’s clothes. She said that all the big accounts (major chain stores) place their orders at the August and January shows, so they have spent all of their money by the October and March shows. The boutiques and small chains come to the shows in October and March to place their orders. She said that this can often work out better for a new brand as it is hard to meet the production needs of the big accounts when you start out.

An information handout for attendees said the major U. S. markets are: Los Angeles, New York, Dallas, Chicago, and Atlanta. There are trade shows conducted in these markets, with two of the biggest being the ENK show in New York and Magic in Las Vegas.

Heather and Barrie were asked what the costs to participate in trade shows are. Barrie said it started out as low as $2,500 for a booth at the Pool show, but that show costs $4,600 now. Then, you have to add in the cost of either renting or building “walls” for your booths. She explained that all booths have to have “walls” on three sides, so the booth is only open to the aisle. You can build the “walls” out of a variety of sturdy materials and cover them with contact paper.

Heather said that the children’s show in New York costs $3,000 for a 6′ X 10′ booth and besides the costs of building the “walls,” you have to add the cost of hotels, which in New York can run $5,000. Both ladies were leaving town at the end of the week to exhibit at one of the trade shows held the first week of August.

Heather said that you need to make a commitment to participate in trade shows for at least a year, so the buyers can gain confidence that you are going to stay in business. She added, “Our first New York show paid for itself. The accounts that make a show worthwhile don’t write orders at the show.” Barrie said that her biggest customer is Mod Cloth, and they were her first customer.

The next question was whether or not they used “reps” and had “showrooms.” Barrie said she doesn’t have any “reps” now, but is looking into it. Heather said they have “reps, and have show rooms in Los Angeles, Dallas, Atlanta, and London. She added, “Reps that go after them work out better. We pay a 12% commission and have show room fees in Los Angeles and Atlanta.”

The meeting handout explained that “reps are individuals you hire in different market locations to show your line for you. They usually carry 12-15 lines. They are paid by commission of the sales they make for you and also often charge a showroom fee.”

An audience member asked where they buy their material. Heather said you need to start with the streets of L. A. (the garment district) to buy smaller lots of material because to buy wholesale, you need to order 60 – 70 yards. She said they started out simple ? solid colors and no trims. She advised, “Always be honest.” [In other words, don’t inflate the size of what you may order in the future to get a cheaper price for your small order.]

Neither Barrie nor Heather felt people are willing to pay more just because their lines are “Made in USA.” They both said they have a problem with “knockoffs,” that is, copies of their styles mainly by foreign companies in Asia. I learned that the design of an article of clothing is not something you can patent, so there are no intellectual property rights to protect your designs. You can only trademark your brand of clothing. Thus, manufacturing of clothing is even riskier than the high-tech products with which I am familiar.

It is good to see the manufacturing side of San Diego’s clothing industry resurge after better-known apparel lines of companies headquartered in San Diego outsourced their manufacturing offshore. If boutique apparel companies can be successful making their clothing in San Diego using American workers, then think of the outrageous prices other apparel companies are charging by manufacturing their clothing in offshore countries like China, Vietnam, and India. By their success, Fables by Barrie and Fiveloaves Twofish have exploded the myth that one must manufacture their apparel offshore in order to be profitable. We consumers need to check labels and support companies that are manufacturing in the U.S. and creating jobs for other Americans.

How Multinational Agribusinesses are Attacking Country of Origin Labeling

Tuesday, August 5th, 2014

If you have bought any packaged meat recently, you may have noticed a new type labe:  a Country of Origin label that may list up to three countries under the categories of “born, raised, and slaughtered.” Consumer groups have long advocated for Country of Origin labeling, but not everyone in the food supply chain is pleased.

On July 22, 2014, Bill Bullard, CEO, R-CALF USA presented a webinar, titled “Country of Origin Labeling: How Multinational Agribusinesses Are Attacking This Law” to members of the Coalition for a Prosperous America (CPA) and sponsoring organizations.

He explained that County of Origin Labeling is not new. The Federal Meat Inspection Act of 1906 was passed by Congress to prevent adulterated or misbranded meat and meat products from being sold and to ensure that meat and meat products are slaughtered and processed under sanitary conditions. It required labels on imported meat, but the USDA considered imports of non-retail-ready meat products to be of domestic origin once they passed a U.S. safety inspection, so origin markings were not maintained. The USDA also considered imported livestock to be domestic after its Animal and Plant Health Inspection Service inspects and releases these animals. USDA inspection of poultry was added by the Poultry Products Inspection Act of 1957.

The Tariff Act of 1930 required that every imported item must be conspicuously and indelibly marked to indicate to the “ultimate purchaser” its country of origin. Products were exempt if they were too difficult or economically prohibitive to mark. The list of exemptions included livestock, “natural” or raw agriculture products such as vegetables, fruits, nuts, and berries.

Mr. Bullard stated that Country of Origin Labeling (COOL) was included in 2002 Farm Bill. It covered muscle cuts of beef, lamb, and pork; ground beef, ground lamb, and ground pork; farm-raised fish and wild fish; perishable agricultural commodities (fruits and vegetables); peanuts.

However, Mr. Bullard explained that this requirement applies to retailers (grocery stores), but not restaurants or if sold by retailer not required to be licensed under PACA (Perishable Agriculture Commodities Act), such as specialty markets, fish markets, butcher shops or roadside stands.

The USDA rules for COOL exempt “processed” versions of the foods, so that the following are exempt:

  • cooked, roasted, smoked or cured (even teriyaki flavored meat)
  • combined with one other ingredient

Most nuts sold in grocery stores are roasted, so they aren’t labeled. Ham, bacon, sausage and other products in the pork section of the meat case are exempt because they are smoked or cured.

However, he started that there was an 11-year delay in writing the rules for USA Label for USA-born, raised, and slaughtered beef. The multinational agribusinesses and their trade organizations like the American Meat Institute (AMI) and the National Cattlemen’s Beef Association (NCBA) fought hard to stop Implementation of this label. They convinced then Secretary of Agriculture Ann Veneman to support their efforts to keep consumers in the dark.

Congress’ FY 2004 appropriations bill delayed COOL for everything except wild and farm-raised fish and shellfish until Sept. 30, 2006. Congress’ FY 2006 appropriations bill further delayed COOL for everything except wild and farm-raised fish and shellfish until Sept. 30, 2008.

Just days before the 2009 presidential inauguration, on Jan. 15, 2009, USDA issued its final rule on COOL. It allowed packers to commingle a single foreign animal during a day’s production and then label the entire day’s production as “Product of U.S. and Canada and/or Mexico.”

Despite the quid pro quo, on May 7, 2009, both Canada and Mexico filed actions with the World Trade Organization (WTO) alleging COOL violated U.S. obligations under various WTO agreements.

In 2012, the WTO faulted COOL and ruled (in part):

  • Violates Article 2.1 of the WTO TBT Agreement because COOL’s recordkeeping and verification requirements impose a disproportionate burden on upstream producers and processors, because the level of information conveyed to consumers through the mandatory labeling requirements is far less detailed and accurate than the information required to be tracked and transmitted by these producers and processors.
  • These same recordkeeping and verification requirements “necessitate” segregation, meaning that the associated compliance costs are higher for entities that process livestock of different origins resulting in a detrimental impact on the competitive opportunities of imported livestock.
  • The COOL labels contain confusing and inaccurate information.
  • The regulatory distinctions imposed by the COOL measure amount to arbitrary and unjustifiable discrimination against imported livestock, such that they cannot be said to be applied in an even-handed manner. Accordingly, we find that the detrimental impact on imported livestock does not stem exclusively from a legitimate regulatory distinction but, instead, reflects discrimination in violation of Article 2.1 of the TBT Agreement.

On May 24, 2013, the U.S. informed the Dispute Settlement Board that on 23 May 2013, the USDA had issued a final rule that made certain changes to the COOL labeling requirements that had been found to be inconsistent with Article 2.1 of the TBT Agreement. The U.S. was of the view that the final rule had brought it into compliance with the DSB recommendations and rulings.

This rule reversed their concession of 2009 to consider comingled livestock as a U.S. product. The new implementing regulations require the label to show the Country of Origin for the production steps of born, raised, and slaughtered in the U.S.

This effectively ended the deceptive practice of commingling that previously allowed meat exclusively from U.S. animals to be mislabeled as if it were meat from multiple origins, such as the inaccurate label: “Product of the Canada, Mexico and the U.S.

Mr. Bullard said that the benefits of this regulation are:

  • Optimizes U.S. Value-Added Supply Chains
  • Prevents industry consolidation
  • Prevents consumer deception
  • Enhances competition
  • Provides synchronous information (between consumer and packer/retailer)
  • Facilitates more accurate price discovery
  • Provides consumers with more choices
  • Empowers consumers to make informed decisions
  • Provides food safety proxy for expression of nationalism/patriotism

However, Canada did not agree that the changes brought the U.S. into full compliance. In its view, the changes were more restrictive and caused further harm. On August 19, 2013, Canada requested the establishment of a compliance panel. Brazil, China, the European Union, India, Japan, Korea and New Zealand reserved their third-party rights, followed by Australia, Colombia, Guatemala and Mexico. On September 27, 2013, the compliance panel was composed. On 26 March 2014, the Chair of the compliance panel informed the DSB that the compliance panel expects to issue its final report to the parties towards the end of July 2014 (not issued as of this date.)

In the meantime, the WTO and multinational Agribusinesses continued to promote global supply chains. The World Trade Organization has been working on the “Made in the World” initiative for years. The WTO’s Made in the World initiative is part of a process of “re-engineering global governance.” On February 26, 2013, Former WTO Director General Pascal Lamy, said, “Fewer and fewer products are actually ‘Made in the UK’ or ‘Made in Switzerland’, and more and more are ‘Made in the World.’”

According to Mr. Bullard, the multinational agribusinesses and their allies have used every front to defeat COOL: U.S. Federal Courts, the U.S. Congress, industry propaganda, and the WTO.

COOL has been attacked in Federal Court by the American Meat Institute (AMI), National Cattlemen’s Beef Association (NCBA), National Pork Producers Council, American Association of Meat Processors, North American Meat Association, Southwest Meat Association, Canadian Cattlemen’s Association, Canadian Pork Council, and the Confederacion Nacional De Organizaciones Ganaderas.

The arguments they used were:

  • COOL violates their constitutionally protected rights to freedom of speech.
  • COOL improperly prohibits them from “commingling.”
  • The “Born, Raised, and Slaughtered” labels are not authorized by the 2002 COOL statute amended in 2008.
  • There is no substantial governmental interest in informing consumers where the meat they buy for their families was born, raised and slaughtered.

Thus far, the U. S. Courts have upheld COOL: the U.S. District Court for District of Columbia denied the Preliminary Injunction request, and the U.S. Court of Appeals for District of Columbia Circuit affirmed the District Court judgment. However, on April 4, 2014, the appeals court vacated its judgment and issued an order for the case to be heard en banc regarding the narrow issue related to the First Amendment, and a decision is pending.

The multinational agribusinesses have tried to eliminate or weaken COOL in each of the past three U.S. Farm Bills, but failed in their effort to include language to weaken COOL by allowing a “North American” label. They did succeed in adding anti-COOL language in House Agriculture Appropriations Committee report language.

In conclusion, Mr. Bullard explained that the main reason why COOL is under attack is the fact that the U.S. Department of Justice and USDA have failed to enforce U.S. antitrust laws and market competition laws against multinational meatpackers. In addition, unrestrained mergers and acquisitions, and the lack of enforcement of anticompetitive practices have accorded U.S. multinational meatpackers oligopolistic market power in U.S. meat markets (four firms control about 85% of beef market). As a result of this market power, meatpackers can and do discriminate against whomever they choose, including the countries of Canada and Mexico.

He said that COOL is the most pro-producer, pro-consumer, and pro-competition legislation to be passed by Congress in a long, long time, and it must be preserved.