1. Background

"Under §304 of the Tariff Act of 1930 as amended (19 U.S.C. § 1304), every imported item must be conspicuously and indelibly marked in English to indicate to the "ultimate purchaser" its country of origin." According to the U.S. Customs, generally defined the "ultimate purchaser" is the last U.S. person who will receive the goods in the form in which it was imported.

However, if the goods are destined for a U.S. based processor where they will undergo "substantial transformation", then that processor or manufacturer is considered the ultimate purchaser. The law authorizes exceptions to labeling requirements, such as for articles incapable of being marked or where the cost would be "economically prohibitive."

Exceptions to this are codified into law and known as the "J List", so named for §1304(a)(3)(J) of the statute, which empowered the Secretary of the Treasury to exempt classes of items that were "imported in substantial quantities during the five-year period immediately preceding January 1, 1937, and were not required during such period to be marked to indicate their origin."

This does not apply to food 'processed' in the US with ingredients from other countries. Processed food includes milk, juice, dry foods and dietary supplements/vitamins. A guidance document of the FDA states:^[1]

1. An imported product, such as shrimp, is peeled, deveined and incorporated into a shrimp dish, such as "shrimp quiche." The product is no longer identifiable as shrimp but as "quiche." The quiche is a product of the US. So labeling it as "product of the USA" would not be a violation of the FFD&C Act. (Whether or not it violates *CBP's* requirements would need to be asked.)
2. An imported product, such as shrimp, is peeled and deveined. It is labeled as "Imported by" or "Distributed by" a firm in the USA. Such labeling would not violate the FFD&C Act, but it would not meet the *CBP's* requirement for country of origin labeling. The product would also have to be clearly identified as to country of origin.

2. Analysis

The contrasting intents of these bills reflected the continuing divergence of opinion among lawmakers over whether a federally mandated labeling program is needed. Some contend that mandatory COOL will provide U.S. products with a competitive advantage over foreign products because US consumers, if offered a clear choice, prefer fresh foods of domestic origin, thereby strengthening demand and prices for them. Moreover, proponents argue that US consumers have a right to know the origin of their food, particularly at a time when US food imports are increasing, and whenever particular health and safety problems arise. They cite as one prominent example concerns about the safety of some foreign beef arising from the discoveries of bovine spongiform encephalopathy (BSE, or mad cow disease) in a number of Canadian-born cows (and two US cows) since 2003. Supporters of the COOL law argue that it is unfair to exempt meats and produce from the longstanding country labeling already required of almost all other imported consumer products, from automobiles to most other foods. They also note that many foreign countries already impose their own country-of-origin labeling.

Opponents of mandatory COOL counter that studies do not provide evidence that consumers want such labeling. They believe COOL is a thinly disguised trade barrier intended to increase importers' costs and to foster the unfounded perception that imports may be inherently less safe (or of lower quality) than US products. Food safety problems can as likely originate in domestic supplies as in imports, as evidenced by the more than 30 recalls of US meat and poultry products announced by USDA in 2006 alone, these opponents point out. Opponents argue that all food imports already must meet equivalent US safety standards, which are enforced by US officials at the border and overseas; scientific principles, not geography, must be the arbiter of safety. Industry implementation and record-keeping costs, estimated by USDA to be as high as $3.9 billion in the first year and $458 million per year after that, would far outweigh any economic benefits, critics add. (COOL proponents assert that these cost estimates were grossly exaggerated while some in industry claim they were too low).

3. Canada Kills COOL at the WTO

In 2009, the Canadian government launched a challenge to mCOOL at the World Trade Organization (WTO).^[2] The Canadian federal government argued before the WTO that American "country of origin" labelling rules (COOL) actually worked to the detriment of the meat industry on both sides of the border by increasing costs, lowering processing efficiency and otherwise distorting trade across the Canada-U.S. border. Mexico made similar claims.

In 2011, Canada said the WTO ruled in Canada's favor.^[3] The US said the panel affirmed the right of the United States to require country of origin labeling for meat products.^[4] Canada and Mexico asked the WTO for another review and permission to impose more than $2 billion a year in retaliatory tariffs, and the ruling was made public in summer 2014.^[5]

In May 2015, the WTO upheld its previous ruling that the U.S. COOL requirements discriminated against Canadian and Mexican livestock.^[6] The two countries asked the WTO to authorize US$3 billion in retaliatory tariffs against U.S. imports.^[6] In early December 2015, the WTO determined the impact of the COOL requirements on the Canadian and Mexican economies at $1.1 billion and authorized Canada and Mexico to impose $781 million and $228 million, respectively, in retaliatory tariffs against U.S. imports.^[6][7]

4. COO Marketing

Some companies seek to communicate the COO and thereby to increase their customer's COO awareness with a number of different strategies:^[8]

Legally regulated COO strategies:

• Use of the phrase "Made in..."
• Use of quality and origin labels

Unregulated COO strategies:

• COO embedded in the company name
• Typical COO words embedded in the company name
• Use of the COO language
• Use of famous or stereotypical people from the COO
• Use of COO flags and symbols
• Use of typical landscapes or famous buildings from the COO