[00:00:01] Speaker 02: Case number 16-1209, United Source One, Inc. [00:00:04] Speaker 02: Petitioner versus United States Department of Agriculture, Food Safety and Inspection Service, Inc. [00:00:10] Speaker 02: at L. Mr. Gardner for the petitioner, Mr. Busa for the respondent. [00:00:35] Speaker 00: May it please the court. [00:00:37] Speaker 00: Let the courtroom clear. [00:00:41] Speaker 00: Let the courtroom clear. [00:00:51] Speaker 00: All right, Mr. Gardner. [00:00:54] Speaker 01: Morning. [00:00:54] Speaker 01: May it please the court. [00:00:57] Speaker 01: United Source One is a small company that exports beef and other food stuffs to the Arabian Gulf area of the Middle East. [00:01:04] Speaker 01: It is regulated by the United States Department of Agriculture and a sub-agency of that department, known as the Food Safety and Inspection Service. [00:01:17] Speaker 00: Mr. Gardner, where did you get the label from the original source? [00:01:23] Speaker 00: Did you print it? [00:01:24] Speaker 00: We printed it, yes, Your Honor. [00:01:27] Speaker 00: And do you have any contract with consenting sources? [00:01:33] Speaker 01: Not that I'm aware of. [00:01:35] Speaker 00: All right. [00:01:36] Speaker 00: So you don't know what that entails once the source has agreed or allowed you to use its label, what that entails. [00:01:46] Speaker 00: You don't know about that. [00:01:49] Speaker 00: Your client doesn't. [00:01:50] Speaker 01: I know that we print the label. [00:01:52] Speaker 01: We know what's on the label. [00:01:53] Speaker 00: Well, is this, is Grand, whatever, is that your only source? [00:01:59] Speaker 00: The original source here. [00:02:04] Speaker 00: The label on, well let me just ask you, on JA-67, what label did you use? [00:02:11] Speaker 00: The Great Plains originals? [00:02:12] Speaker 01: Yes. [00:02:13] Speaker 00: All right. [00:02:14] Speaker 00: Yes. [00:02:14] Speaker 00: And what about the one beside it, United Source One? [00:02:19] Speaker 00: Can you get your joint appendix out? [00:02:30] Speaker 00: is you put either one or the other on, and it looks like from 67, they were both on there. [00:02:56] Speaker 01: At 67 on? [00:02:58] Speaker 00: Right. [00:03:00] Speaker 00: Do you know what label was on the Reeboks Meet? [00:03:04] Speaker 01: Do I know what label was on the Reeboks Meet? [00:03:08] Speaker 01: These are the labels, the Great Plains label is what we used. [00:03:11] Speaker 00: All right. [00:03:11] Speaker 00: Did you use the one on the left, your own United Source One label? [00:03:16] Speaker 01: Yes. [00:03:18] Speaker 01: Yes, that's a label, but that's [00:03:23] Speaker 01: our label, it's not the ID label that I think is the... I know that. [00:03:28] Speaker 00: I'm just trying to figure out what's on your Reebok product. [00:03:33] Speaker 00: And in this case, when you were inspected, you had both labels on, your own and the one from the source. [00:03:41] Speaker 01: Well, actually, when we were inspected, we just had the one from the original source. [00:03:46] Speaker 01: The great place. [00:03:47] Speaker 01: Our label was at another place on the box, but the actual ID label was the great place. [00:03:55] Speaker 00: All right. [00:03:55] Speaker 00: Thank you. [00:04:01] Speaker 00: I do want to follow up on one. [00:04:03] Speaker 00: You don't have any consenting sources. [00:04:06] Speaker 00: Do you have other sources? [00:04:08] Speaker 00: And do you print their labels? [00:04:12] Speaker 01: No, we do the printing. [00:04:16] Speaker 01: It's our position, of course, that there was no consent requirement. [00:04:20] Speaker 01: And we think that that's true with respect to the applicable regulations. [00:04:26] Speaker 01: There's nothing in the statutes. [00:04:28] Speaker 01: There's nothing. [00:04:28] Speaker 00: How do you print it? [00:04:29] Speaker 00: I mean, do you take the label off the product and copy it, or what? [00:04:37] Speaker 01: I'm not sure about the mechanics of the printing, Your Honor. [00:04:41] Speaker 00: All right. [00:04:44] Speaker 00: It just, all right, go ahead. [00:04:46] Speaker 01: All right. [00:04:46] Speaker 01: In January 2012, US1 initiated a custom export re-boxing program that was established under supervision of the agency. [00:05:00] Speaker 01: The agency performs a hands-on visual expansion inspection of each vacuum-packed cut beef and places place the beef in smaller sturdier boxes. [00:05:11] Speaker 01: This was basically a response to customer demand and to certain desires of certain purchasers in the Middle East of the product. [00:05:23] Speaker 01: It was also supported by the need to consolidate multiple vendor numbers and designs within a single brand. [00:05:30] Speaker 01: So it enabled us to market more effectively in the Middle East, where you have some attitudes about what they like in their meatboxing that are different maybe than the United States, for example. [00:05:46] Speaker 01: But the basic point is that we operated this program for three years under supervision of the agency. [00:05:56] Speaker 01: There was every attempt to comply with the regs of the agency, and there was no challenge or any finding of misbranding for the three-year period that we operated. [00:06:08] Speaker 01: It's important to recognize that the Reeboks program did not process the meat or alter the vacuum [00:06:18] Speaker 01: We relied on FSI Enforcement Director's 12,600.1, which basically allowed us to retain and apply the official establishment number, in other words, the original producer number to the export box, rather than change that number. [00:06:37] Speaker 01: on the export boxes to the USDA warehouse? [00:06:43] Speaker 00: There are several steps you have to follow to use the label of another business, and particularly the label of the source. [00:06:52] Speaker 00: And maybe USDA dropped the ball on implementing its own regulations, that is, by not verifying that you were supposed to have records that [00:07:04] Speaker 00: The source has transferred the labels to you, but you're not just categorically allowed to print someone else's label, put it on your box. [00:07:15] Speaker 01: That's true. [00:07:16] Speaker 01: And we're not. [00:07:17] Speaker 01: But the rules do allow us to do that. [00:07:20] Speaker 01: The rules do require that this process is supervised by the inspectors. [00:07:26] Speaker 01: In other words, when we remove meat and re-box it, [00:07:30] Speaker 01: There's an inspector there every time and they're basically when that removal is done, they affirm the requirements of the regulations that it's been complied with. [00:07:48] Speaker 02: understand this to be about or am I misunderstanding? [00:07:51] Speaker 01: Well, I understand. [00:07:52] Speaker 01: My position is our position is that we didn't have. [00:07:55] Speaker 01: Well, just answer that yes or no question that that is it is about consent. [00:07:59] Speaker 01: Yes. [00:07:59] Speaker 02: And is there anything that most you know, again, the regulation that requires you to have? [00:08:04] Speaker 02: There is nothing. [00:08:10] Speaker 01: In fact, I would direct the court's attention to FSIS Directive 12.600.1, and it states in pertinent part, when facilities label or relabel product at an ID warehouse, that's our warehouse, [00:08:26] Speaker 01: freezer, cold storage or dry storage facility, either the originating official establishment number or the official warehouse number, maybe you. [00:08:37] Speaker 01: We are specifically authorized to do that by the enforcement directive of the agency that regulates it. [00:08:43] Speaker 02: Where is that directive, MDJA? [00:08:50] Speaker 00: It is in addendum at 51, and I've been looking for it because [00:08:56] Speaker 00: The way I read the directive, you are completely wrong about whether you need consent or not. [00:09:03] Speaker 00: Now, there are duties on the USDA that may not have been performed for these three years, but paragraph two, [00:09:16] Speaker 00: Paragraph two under A, identification service says, inspection program personnel will verify that facilities are using approved labels, wrappers, and containers, so forth. [00:09:28] Speaker 00: The next sentence, when facilities label or relabel, which is what you did with Great Plains, you're supposed to have either that label on or your own. [00:09:39] Speaker 00: You apparently had both. [00:09:40] Speaker 00: But the next sentence says, facilities may label product with the inspection legend, which is the Great Plains legend, provided they apply the label under FSIS supervision. [00:09:53] Speaker 00: Then number three, [00:09:55] Speaker 00: says if you do this, that is, if you use the label of the originator or of the source of the meat, that again, USDA will verify that you did it in a manner that clearly indicates that the product was last handled and labeled at the ID facility. [00:10:17] Speaker 00: Then it goes on to say, you all must maintain records of label transfers [00:10:23] Speaker 00: and records of products labeled or relabeled. [00:10:26] Speaker 00: Now, I can put my hands on and I can ask USDA, but in another part of the regulations, [00:10:39] Speaker 00: You are required to keep the records of transfer, of allowing you to use this label, not print it on your own, but get it from Great Plains before you use it. [00:10:52] Speaker 01: This isn't a transfer situation, and they do view the labels when they're there doing the inspection. [00:10:58] Speaker 01: Why is it not a transfer? [00:10:59] Speaker 01: You printed them. [00:11:02] Speaker 00: You didn't get them for great plans. [00:11:04] Speaker 01: I think the transfer refers to an originating producer transferring its labels. [00:11:09] Speaker 01: It doesn't apply to us, is the point. [00:11:12] Speaker 00: Who does it reply to if it doesn't apply to you? [00:11:15] Speaker 01: Originating producer, that's what that refers to. [00:11:19] Speaker 01: We're not an originating producer. [00:11:20] Speaker 01: We're an ID facility which is regulated in a much more relaxed sense. [00:11:26] Speaker 00: Not according to this directive. [00:11:28] Speaker 00: You're supposed to label with somebody from USDA standing over you. [00:11:33] Speaker 00: They are. [00:11:33] Speaker 00: That's exactly what happened. [00:11:34] Speaker 00: And you said that. [00:11:36] Speaker 00: And they're supposed to verify that when you put a label on other than your own, that you have the transfer records that you're supposed to keep. [00:11:46] Speaker 01: And if you look at Mr. Harold's testimony, he testifies that we kept all those records that we were required to keep. [00:11:55] Speaker 01: All of the records. [00:11:56] Speaker 02: That is correct. [00:12:08] Speaker 00: Is it your position that you had the consent because you had the transferred labels? [00:12:13] Speaker 00: I mean, if you did, then I agree with you. [00:12:16] Speaker 00: But you're saying we didn't even have to have the records of transferred labels? [00:12:23] Speaker 01: Yes, that is what we were saying. [00:12:25] Speaker 01: And I think the confusion here is the distinction between transferred labels and the labels that were authorized to do under their rules. [00:12:37] Speaker 00: What do you think a transfer label is? [00:12:39] Speaker 01: I think a transfer label is when an originating producer transfers to another [00:12:45] Speaker 01: Another reboxer. [00:12:47] Speaker 01: Another company. [00:12:47] Speaker 01: Yeah, it's not always a reboxer. [00:12:49] Speaker 01: Well, maybe not, but in your case... But I think, I don't think the transfer label situation applicable here. [00:12:55] Speaker 01: I think the key issue is whether there was consent or whether we had to continue... There was a requirement for consent. [00:13:00] Speaker 02: Yeah. [00:13:00] Speaker 02: There was not consent, I think. [00:13:02] Speaker 02: That's a given, isn't it? [00:13:04] Speaker 02: At least there's no evidence of consent. [00:13:06] Speaker 02: Absolutely. [00:13:07] Speaker 02: Then the issue between you and the [00:13:21] Speaker 01: The consent issue, of course, was also accompanied by a requirement that we keep records that the rules obviously don't require us to keep. [00:13:39] Speaker 00: All right. [00:13:39] Speaker 00: Is he into his? [00:13:42] Speaker 00: All right. [00:13:44] Speaker 00: I used up a lot of your time. [00:13:45] Speaker 00: But anyway, we'll give you some time to rethought. [00:13:48] Speaker 00: You're over your time. [00:14:03] Speaker 00: And what about all the things you're supposed to do? [00:14:07] Speaker 03: Good morning. [00:14:07] Speaker 03: May it please the court to please stand on behalf of the government. [00:14:09] Speaker 03: I'm happy to get into that, Your Honor. [00:14:12] Speaker 03: This is not a situation in which United Source 1 told the inspectors three years ago when they began this re-boxing program that they would be printing off the originating source's label and applying it themselves to their new box without that source's consent or control. [00:14:27] Speaker 02: And so for the three years- It is the thing with the issues about the consent and control issue. [00:14:31] Speaker 02: Where does the requirement come from that they have to have? [00:14:35] Speaker 02: It's the Prohibition on misleading labeling. [00:14:37] Speaker 02: I'm sorry. [00:14:38] Speaker 02: It appeared to me that you're enforcing a rule that doesn't exist. [00:14:42] Speaker 02: Oh, no, Your Honor. [00:14:42] Speaker 02: The Prohibition on misleading labeling. [00:14:43] Speaker 02: Where would I look and find that requirement of that consent that you say they're in violation of? [00:14:49] Speaker 03: Well, so you'd find the Prohibition on misleading labeling at 21 USC 607E as well as 610D and 601A. [00:14:54] Speaker 02: Where in the record in this case will I find the language of that? [00:14:57] Speaker 03: The language is in twenty one U.S.C. [00:14:59] Speaker 03: six or seventy four have the privilege to use of labeling on meat that is misleading in any particular and this is just an interpretation of what it means to be misleading in this case. [00:15:09] Speaker 02: Okay. [00:15:10] Speaker 02: Read me the part about them. [00:15:16] Speaker 03: Well, so the prohibition of misleading labeling doesn't specify every way in which labeling can be missing this one misleading. [00:15:22] Speaker 02: Well, so it's misleading because it shows the [00:15:26] Speaker 02: Originating source of the meat, that's what it's supposed to show, right? [00:15:29] Speaker 03: No, Your Honor, absolutely not. [00:15:31] Speaker 03: On page 112 of the Joint Appendix, the administrator makes clear that in a re-boxing situation, you have two facilities involved. [00:15:38] Speaker 03: You have the originating facility, they have their own distinct number. [00:15:41] Speaker 03: You have the re-boxing facility, they have their own distinct number. [00:15:44] Speaker 03: And the use of an originating facility number on a re-boxed product communicates the institution that re-boxed that product, one that was responsible for handling that product for that specific step in the supply chain. [00:15:56] Speaker 03: And, and so when U.S. [00:15:58] Speaker 02: 1 was using the original number. [00:16:02] Speaker 02: that would be given if they had the consent, right? [00:16:06] Speaker 03: So if they had consent, the message would match the reality. [00:16:08] Speaker 03: Yes, Your Honor. [00:16:09] Speaker 02: So what is it they're misleading about if it shows the same information that would be there if they had the consent? [00:16:15] Speaker 03: Well, it's misleading because the message does not match the reality. [00:16:18] Speaker 03: The message that US-1 is sending to the world is that the originating facility here was ultimately responsible, had control of the re-boxing of this product. [00:16:25] Speaker 02: It seems to me to be reasoning in a circle on this that [00:16:28] Speaker 02: When I asked you what required them to have the consent, you tell me, well, by sending this out, that implies that they have the consent. [00:16:39] Speaker 02: I don't see how it does unless there's a requirement somewhere that they have to have the consent. [00:16:45] Speaker 03: So a couple responses to your honor's question. [00:16:48] Speaker 02: What you're telling me is that it would be a good idea to have such a rule, and maybe it would be a good idea to have such a rule, but I don't see it in the rules that [00:16:56] Speaker 02: Well there's already a rule prohibiting misleading labeling in any particular quote unquote. [00:17:12] Speaker 02: I don't see how you can say it's misleading. [00:17:14] Speaker 03: A message is misleading when the message conveys a certain set of, a sense of what the facts on the ground are, and the facts on the ground do not match that message. [00:17:23] Speaker 03: That's what we have here. [00:17:24] Speaker 02: What facts on the ground does the message not match? [00:17:27] Speaker 02: So the message being sent... What facts on the ground does the message not make? [00:17:32] Speaker 03: That there is absolutely no relationship of permission or control between the originating facility and the reboxer in this case. [00:17:39] Speaker 03: The message being sent is that there is such a relationship. [00:17:41] Speaker 03: That's what it means to you. [00:17:43] Speaker 02: Where does it say that this message being sent business is quite different than misleading it? [00:17:49] Speaker 02: I spent a lot of my life with the fraud process and I can't find a misleading message on that label. [00:17:56] Speaker 03: I'm sorry, my understanding of what it is to be misleading is simply to convey a message that is not true given the reality. [00:18:01] Speaker 02: I think that's what it means. [00:18:04] Speaker 02: The message they're sending is [00:18:06] Speaker 02: This came from this originating source. [00:18:08] Speaker 02: The message they're sending. [00:18:09] Speaker 02: The fact on the ground is it did come from the originating source. [00:18:12] Speaker 03: But that's not the message they're sending, Your Honor. [00:18:14] Speaker 03: The message they're sending is that not just that the meat inside came from the originating source, they're also sending the message that the originating source is in control of the re-boxing step. [00:18:22] Speaker 02: Does it say that on the label? [00:18:24] Speaker 02: Does it say that on the label? [00:18:25] Speaker 03: No, but Your Honor, it would not have to in order to convey that message if that is the common understanding in the industry, which of course the agency here said was true. [00:18:34] Speaker 03: And it's an experience that's allowed [00:18:36] Speaker 00: Maybe it's wrong to couch it in terms of consent, although that's what your letter said. [00:18:42] Speaker 00: But these records of the transfer, the legitimate transfer of the label from the source to the reboxer have to have some sort of meaning. [00:18:54] Speaker 00: And according to the directive that I read earlier, you all are supposed to verify those records. [00:19:00] Speaker 00: In that three-year period, you would have found that they did not have the transferred labels, that they were printing them themselves. [00:19:09] Speaker 03: It's certainly true that the agency personnel on the ground could have been verifying that this reboxer is operating with consent. [00:19:14] Speaker 03: He's required to. [00:19:15] Speaker 00: That's one of his jobs. [00:19:17] Speaker 03: I think it's reasonable in this context, only with the understanding that FSIS has never come across a reboxer like US-1, to our knowledge, that is using an originator's main label without its consent. [00:19:28] Speaker 03: Under those circumstances, it's very reasonable for these frontline inspectors. [00:19:32] Speaker 02: If they had had this consent, would there be any violation in using exactly the labels they use? [00:19:37] Speaker 02: If they had had permission, I don't believe that. [00:19:40] Speaker 02: So your problem is not whether they get the record or whether they were in the printing. [00:19:44] Speaker 02: The problem that you call their attention is that they didn't have the consent. [00:19:48] Speaker 02: That's right. [00:19:49] Speaker 02: That's what the whole lawsuit is about. [00:19:50] Speaker 02: And I can't find a requirement that they get that consent. [00:19:54] Speaker 02: Maybe it would be a good idea to have it. [00:19:56] Speaker 02: Maybe that would serve the understanding of the industry. [00:19:59] Speaker 03: The fact that it would be a good rule doesn't mean there is a good rule. [00:20:02] Speaker 03: Well, the USDA is not required to promulgate a new rule to specify every way in which labeling on wheat can be misleading. [00:20:09] Speaker 02: The USDA is a statutory agency. [00:20:12] Speaker 02: They have only those authorities that are granted by statutes and regulations. [00:20:16] Speaker 02: Certainly are, absolutely. [00:20:18] Speaker 02: And they have the authority. [00:20:19] Speaker 02: It may be a good idea to have a rule that did this, but I don't find one. [00:20:27] Speaker 02: recording this report i'm sorry i just to to repeat the government's position it is misleading when the message being sent does not match the reality on the ground that's what we have here that that's what i want is telling the world around is that this meat did originally for the little team and you tell me that would be perfectly true if they had consent [00:20:47] Speaker 02: Yes, I don't find anything in either dimension. [00:20:50] Speaker 02: The either message, the pretty regulated the rule your correspondence. [00:20:54] Speaker 02: I don't find anything anywhere that creates that consent requirement. [00:20:58] Speaker 03: I'm sorry, I don't think that to determine if something is misleading, you look only at the message. [00:21:03] Speaker 03: You have to compare the message to the reality. [00:21:06] Speaker 03: You have to say, is that message misleading? [00:21:08] Speaker 03: No, but the message being conveyed is not where the meat came from, it is also who is in charge of this step in the supply chain. [00:21:16] Speaker 03: That is why the USDA creates two different numbers, one for re-boxing facilities, one for regenerators. [00:21:21] Speaker 03: And this matters a lot to the agency. [00:21:24] Speaker 03: It's very important that the purchasing public and inspectors begin to trace. [00:21:28] Speaker 02: It matters, but maybe you ought to have a rulemaking. [00:21:31] Speaker 02: We have a rulemaking. [00:21:31] Speaker 02: It is a prohibition. [00:21:32] Speaker 00: Let me ask you this. [00:21:34] Speaker 00: It might not be misleading if Great Plains were misspelled. [00:21:40] Speaker 00: That would be misbranding, but it might not be misleading. [00:21:44] Speaker 00: And my question is, and I've tried to work out this hypothetical, let's say [00:21:50] Speaker 00: I go to Kroger's to buy boar's head meat. [00:21:54] Speaker 00: And boar's head meat is reboxed by United Source One. [00:22:04] Speaker 00: I get deathly ill [00:22:06] Speaker 00: What difference to me does it make as a consumer whether Boar's Head gave US1 permission to use that label? [00:22:21] Speaker 00: I'm trying to figure out how. [00:22:23] Speaker 00: And you've got in your brief that this is misleading to people knowledgeable in the industry. [00:22:27] Speaker 00: And I'm not sure that's enough. [00:22:30] Speaker 00: to say it is, if that's enough people misled. [00:22:34] Speaker 00: I mean, you may have to mislead the consumer and not just somebody in the industry, but that's a different question. [00:22:41] Speaker 00: But I'm having trouble understanding how, whether or not great planes [00:22:51] Speaker 00: knows about its label, let's leave consent out, knows about its label being printed and put on a package by U.S. [00:23:00] Speaker 00: 1. [00:23:01] Speaker 03: I'm sorry, just to clear up a misconception, I believe that page 67 of the Joint Appendix, my understanding is that Great Plains is U.S. [00:23:09] Speaker 03: 1's own brand, although [00:23:10] Speaker 03: my opposing counsel can clear that up. [00:23:13] Speaker 03: My understanding is that here on page 67, what we have is United Source One's own brand plus the originator's establishment number here in this circle in sort of the middle of the page. [00:23:24] Speaker 00: And it's that number that we are concerned with. [00:23:25] Speaker 00: Okay, so this great plan is not the source. [00:23:26] Speaker 03: My understanding is Great Plans is United Source One's own branding of their Reeboks product. [00:23:31] Speaker 03: But again, I hope that the opposing counsel can clear that up. [00:23:33] Speaker 03: But to answer the question you're concerned with, why does this matter and who is it misleading? [00:23:37] Speaker 00: Well, then it's not Reeboks if it's its own. [00:23:39] Speaker 03: Oh, no, it is Reeboks. [00:23:40] Speaker 03: They've opened up the originating sources box. [00:23:43] Speaker 00: Great Plains? [00:23:44] Speaker 00: Is Great Plains in the same building you said? [00:23:48] Speaker 03: Unless I'm misunderstanding. [00:23:50] Speaker 03: I think that Great Plains is simply the brand name that US-1 puts on its Reeboks product. [00:23:57] Speaker 03: My understanding is that here, case 67, there is no indication of the originating source other than this establishment number inside this inspection margin. [00:24:05] Speaker 00: It's that establishment number we're focused on. [00:24:06] Speaker 00: We don't know in this record who the originating source is. [00:24:09] Speaker 03: I'm not sure, Your Honor, but I'd like you to ask my opposing counsel that question. [00:24:14] Speaker 03: As to why this matters and who this matters for, it matters at two moments in time, I believe, at least two. [00:24:20] Speaker 03: One is, when you're a bulk purchaser and you're purchasing product, you may [00:24:25] Speaker 03: If you find Reebok's product that has the originator's number on the outside label, you might think, great, I trust this originating source. [00:24:33] Speaker 03: They're a well-known name in the industry, and I trust that they have supervised even the Reeboksing step fairly well. [00:24:39] Speaker 03: And so I'm going to purchase the product, and feel free to resell it to small restaurants. [00:24:43] Speaker 03: With the knowledge that down the line, if there's a product, I know how to get in touch with that originating source, the established player in the industry. [00:24:49] Speaker 03: It can matter at that purchasing step. [00:24:51] Speaker 03: It can also matter at the step at which, say, there's adulteration found in the meat. [00:24:54] Speaker 03: And that adulteration could have been introduced either at the original processing point or at the unboxing point, say, by the wet aging process that US1 engages in. [00:25:03] Speaker 03: If that did result in adulteration, you'd want to be able to track down who was responsible for what. [00:25:09] Speaker 03: The number here is your first line of defense if you're investigating a claim of adulterated product. [00:25:14] Speaker 03: You know exactly who to go to, because that communicates [00:25:17] Speaker 03: not only where the meat came from, that's already communicated by the label on packages of meat inside the box, this number here communicates who you go to if you're investigating adulteration that resulted during the re-boxing process itself. [00:25:30] Speaker 03: Now it may be true without that number, you'd still be able to ultimately find the re-boxer, but it's about time, and time can be critical in these matters. [00:25:37] Speaker 00: All right, is it in the record [00:25:39] Speaker 00: if whoever the originator was, let's say Boar's Head, if Boar's Head had transferred its labels for use by U.S. [00:25:47] Speaker 00: 1, what came with that? [00:25:50] Speaker 00: In other words, was Boar's Head over there making sure that U.S. [00:25:55] Speaker 00: 1 complied with every regulation? [00:25:57] Speaker 03: It would give Boar's Head that opportunity right by the Chancellor. [00:26:00] Speaker 00: My only question is this, it seems like this is [00:26:04] Speaker 00: primarily to protect the source and not the consumer. [00:26:08] Speaker 00: Because if I get sick and sue Kroger's, and Kroger's brings in the Reebokser and Boar's Head, and Boar's Head said, wait a minute, they had no authority to use my label. [00:26:19] Speaker 00: I'm going to sue them in a cross claim or whatever. [00:26:25] Speaker 00: What does that do to me? [00:26:27] Speaker 00: How does that affect me? [00:26:28] Speaker 00: It doesn't seem to. [00:26:30] Speaker 03: No, so the point here is to allow you to protect yourself when, say, you're a bulk purchaser and you're purchasing a reboxed product. [00:26:36] Speaker 03: You might want to be able to rely on that originating source. [00:26:39] Speaker 00: So let's say you're talking about Kroger's then? [00:26:42] Speaker 03: Correct, for instance. [00:26:43] Speaker 03: Or the importer in the Middle East in this case. [00:26:45] Speaker 03: You might want to be able to rely on the fact that maybe you trust the brand name of the originating source and you trust them to oversee re-boxing. [00:26:51] Speaker 03: You may, if you've got to know them, trust US1, but you may not know much about it. [00:26:57] Speaker 03: U.S. [00:26:57] Speaker 03: 1 is communicating the message, look, this Reeboks product, it's subject to the consent and control of the originating facility. [00:27:03] Speaker 03: It's sending a misleading message to that purchaser that could give that person confidence in a misleading way that there's a certain thing that is true that is actually not true. [00:27:11] Speaker 03: These people do not have a relationship with these originators that allow the originators to exert consent or control over the Reeboksing of this product. [00:27:20] Speaker 03: And just to, I see I'm out of time. [00:27:23] Speaker 03: Just to reiterate, this matters in this case. [00:27:24] Speaker 03: We've discussed wet aging in our brief. [00:27:27] Speaker 03: That is a process where you chill meat for, I believe, 28 days. [00:27:32] Speaker 03: Certainly, there are things that happen in the re-boxing stage, not just the processing stage, that can result in adulteration. [00:27:37] Speaker 03: It's very important to have very clear lines drawn about who is responsible for what at various stages of this supply chain process. [00:27:44] Speaker 00: Well, what would the originator have been able to do to stop the, or to affect the wet aging? [00:27:50] Speaker 00: Well, for instance, if it had actually transferred its label. [00:27:54] Speaker 03: Well, the originator could have withheld consent, say, by not transferring labels or not allowing this person to print off labels. [00:28:00] Speaker 03: And the ability to withhold consent gives that originator the ability to oversee the process and say, hey, do you do it aging? [00:28:06] Speaker 03: How you doing it? [00:28:07] Speaker 03: Let me look at this. [00:28:07] Speaker 00: How does the originator know about it? [00:28:10] Speaker 03: Well, because they have the opportunity to look into it at the moment when U.S. [00:28:13] Speaker 03: 1 asks for consent. [00:28:15] Speaker 03: When U.S. [00:28:15] Speaker 03: 1 comes to the originator and says, hey, can we use your number on our Reeboks Meet, the originator has the ability to think about it and say, well, I'd like to look into your processes a little bit before I allow that to happen. [00:28:26] Speaker 00: And our understanding... Where is that set out anywhere? [00:28:30] Speaker 03: I think that's just a functional result of the situation of consent and control. [00:28:33] Speaker 03: If you have the ability to withhold consent, you have the ability to control. [00:28:39] Speaker 03: Thank you very much. [00:28:40] Speaker 00: All right, thanks. [00:28:41] Speaker 00: Does Mr. Garner have any time? [00:28:43] Speaker 00: All right, why don't you take one minute? [00:28:49] Speaker 01: I'll be brief, Your Honor. [00:28:50] Speaker 01: The agency has never explained what false or misleading message was conveyed by the labels or how a label containing the accurate establishment number of the facility could be misleading. [00:29:03] Speaker 01: or identify any evidence in the administrative record that anyone was misled by U.S. [00:29:09] Speaker 01: 1's application of the originating producer's establishment. [00:29:14] Speaker 01: The only evidence in the administrative record... They don't have to do the latter, do they? [00:29:17] Speaker 02: Pardon? [00:29:18] Speaker 02: They don't have to do the latter. [00:29:21] Speaker 02: They don't have to find actual people. [00:29:25] Speaker 01: That's true, but I think it goes to the force of the argument as far as, you know, is this really a problem? [00:29:31] Speaker 01: And I don't think it's really a problem under these circumstances. [00:29:35] Speaker 01: In fact, the only evidence in the administrative record, Your Honor, concerning any historical practice, which they're relying on, [00:29:42] Speaker 01: is that US-1 operated its re-boxing program using the official establishment number for over three years with the full knowledge and approval. [00:29:52] Speaker 02: What's the problem with doing it the way they want to do it? [00:29:54] Speaker 01: What is the problem? [00:29:56] Speaker 01: Incredibly expensive. [00:29:57] Speaker 01: That means we've got to go to every one of them and ask for their permission. [00:30:01] Speaker 01: Plus, a lot of them are competitors. [00:30:03] Speaker 01: We buy from competitors to ship to the Middle East, so they're going to know basically what we're doing as a competitor. [00:30:09] Speaker 00: How do you actually make this label? [00:30:14] Speaker 00: Do you photograph it on the side of beef and then reproduce it and put it on the box? [00:30:19] Speaker 01: Your Honor, I honestly can't. [00:30:21] Speaker 01: I don't have knowledge as to the specific mechanics of production of the label. [00:30:25] Speaker 01: I can't tell you that at this point. [00:30:28] Speaker 00: And you also, I think, said you didn't know whether there were other sources that your client uses. [00:30:34] Speaker 01: Other sources than what? [00:30:36] Speaker 00: Other original sources. [00:30:37] Speaker 00: Other words, I get this picture. [00:30:38] Speaker 01: Other originating producers? [00:30:40] Speaker 01: Yes. [00:30:40] Speaker 01: Yeah, there's a lot of originating producers. [00:30:42] Speaker 00: All right, so do you just put their labels on everything? [00:30:45] Speaker 00: I have a hard time picturing a business taking a label that belongs to someone else and putting it on, I mean, maybe they remove it from the beef and put it on the box. [00:30:58] Speaker 00: I don't know. [00:31:00] Speaker 01: Typically, we don't try to disguise this. [00:31:04] Speaker 01: They know about this. [00:31:06] Speaker 01: No one has ever complained. [00:31:08] Speaker 01: No producer has ever complained that we're improperly using their labels. [00:31:15] Speaker 01: And there's no evidence in the administrative record of any complaints. [00:31:19] Speaker 01: So I guess my time is up. [00:31:22] Speaker 00: All right. [00:31:23] Speaker 00: Thank you.