The First Amendment and Labels

The First Amendment states that Congress shall make no law “abridging the freedom of speech.”^[1] As discussed in Chapter 2, the original purpose of the First Amendment was to protect the freedom of political speech, which has since been expanded to protect other “core” speech including religious speech, literature, and art. In the 1976 case, Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Supreme Court confirmed that commercial speech is likewise protected by the First Amendment, but to a somewhat lesser degree.

Commercial speech is considered speech that proposes a commercial trans- action,^[2] and in 1995, the Court explicitly included labeling within the definition.^[3] The Court does permit the government to require commercial factual disclosures and to regulate false, deceptive, and misleading commercial speech.^[4] As discussed in greater detail in Chapter 7, the government may ban commercial speech that is considered “inherently misleading” or that has been proven to be misleading to consumers.^[5] However, if the speech is only “potentially misleading,” which means that it can be presented in another way or can be explained through disclaimers or factual disclosures, it cannot be banned.^[5] The government may only require that potentially misleading speech be presented in a non-misleading manner—often by requiring a factual disclosure requirement to cure the potential deception. In Virginia Pharmacy, the Court explained that the government may appropriately require that commercial messages include “additional information, warnings, and disclaimers.”^[7]

The Supreme Court also permits the government to require commercial actors to disclose factual information about their products or services. This concept predates the commercial speech doctrine. In early cases addressing laws that sought to prevent adulteration and misbranding of food products, the Court explained that, “it is too plain for argument that a manufacturer or vendor has no constitutional right to sell goods without giving to the purchaser fair information of what it is that is being sold.”^[8] For example, in 1918, the Supreme Court upheld a state labeling law that required syrup manufacturers to disclose the percentage of each ingredient of which their “table syrup” was composed (in this case 85% corn syrup or glucose, 10% molasses, and 5% sorghum).^[8] Thus, factual disclosure requirements are permitted in the commercial context and are a common requirement for food labels. Note that the requirement must relate to factual information—the government cannot require commercial actors to disclose ideological or subjective information on their labels (or otherwise).^[10]

In two cases since Virginia Pharmacy, the Court upheld commercial disclosure requirements, both of them in the context of attorney advertisements.^[11] In the first case, Zauderer v. Office of Disciplinary Counsel, the Court held that, “an advertiser’s rights are adequately protected as long as disclosure requirements are reasonably related to the State’s interest in preventing deception of consumers.”^[12] This means that commercial disclosure requirements must be reasonably related to the government’s interest, which is the easiest level of test to pass for constitutional questions.

It is important to note that both Zauderer and the second case relied on the government’s interest in preventing deception.^[13] The Supreme Court has not heard a case where a commercial actor challenges a basic commercial disclosure where the government posits a different interest. This begs the question of whether the government can require factual disclosures that are not related to preventing consumer deception. Federal circuit courts have overwhelmingly held that other government rationales, such as safety and health, suffice under the reasonable relationship test;^[14] however, one court found that “consumer curiosity” alone was insufficient.^[15] There are many factual disclosure requirements in the food context that could arguably be related to preventing consumer deception or conversely could be based on a broader regulatory regime supporting a truthful and transparent marketplace. Future Supreme Court cases will need to flesh out this question.

[1] U.S. Constitution Amendment I.
[2] Board. of Trustees v. Fox, 492 U.S. 469 (1989).
[3] Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
[4] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976).
[5] In re R.M.J., 455 U.S. 191, 203 (1982).
[6] In re R.M.J., 455 U.S. 191, 203 (1982).
[7] Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 772n.24 (1976).
[8] Corn Prods. Ref. Co. v. Eddy, 249 U.S. 427, 431 (1919).
[9] Corn Prods. Ref. Co. v. Eddy, 249 U.S. 427, 431 (1919).
[10] Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. 2006).
[11] See Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2001); Zaudererv. Office of Disciplinary Counsel, 471 U.S. 626 (1985).
[12] Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).
[13] See Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324 (2001).
[14] American Meat Institute v. United States Department of Agriculture, 2014 U.S. App. LEXIS14398 (D.C. Cir. July 29, 2014); N.Y. State Rest. Ass’n v. N.Y.C. Bd. of Health, 556 F.3d 114, 132-34 (2dCir. 2009); Envtl. Def. Ctr. v. EPA, 344 F.3d 832, 851 (9th Cir. 2003); Nat’l Elec. Mfrs. Ass’n v. Sorrell,272 F.3d 104, 115 (2d Cir. 2001); Pharm. Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 310 n.8 (1st Cir. 2005).
[15] International Dairy Foods Association v. Amestoy, 92 F.3d 67, 74 (2d Cir. 1996).