High Court Presented with Opportunity to Reinforce its Compelled Speech Jurisprudence

first-amendmentA petition for writ of certiorari filed with the U.S. Supreme Court on July 17 (the respondent’s reply is still pending) may provide the justices with a timely opportunity to clarify the Court’s jurisprudence on compelled speech. The case, Anthem Prescription Management v. Beeman, involves the increasingly common practice by government of enlisting private enterprises to communicate certain messages against their will. As we have discussed here recently, the lower federal courts are fractured over the amount of First Amendment scrutiny judges should apply when businesses challenge such speech mandates.

Laws Correcting Deception. Beginning with Zauderer v. Office of Disciplinary Counsel in 1985, the Supreme Court has developed a consistent jurisprudence on compelled speech for commercial enterprises. Zauderer recognized businesses’ First Amendment rights to communicate with consumers about their products. But the Court noted that such protection is minimal for misleading or false commercial speech. It 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.” The Court emphasized that the speech mandate must require “purely factual and uncontroversial information” and not be “unduly burdensome.”

Laws Not Targeting Deception. What if the government interest underlying a speech mandate is not correction of deception? In our opinion, the Court spoke quite clearly in Zauderer, carving out prevention of deception as a unique exception to the First Amendment’s heightened protection of commercial speech, and thus heightened scrutiny should still apply to other speech mandates. Continue reading

FDA’s “Added Sugar” Labeling Proposal: More Information Isn’t Always Better (or Legal)

FDA's proposed Nutrition Facts format

FDA’s proposed Nutrition Facts format

The Food and Drug Administration’s (FDA) proposed addition of “added sugars” to the mandatory Nutrition Facts label on packaged food lacks scientific justification, is more likely to confuse than inform consumers, and will expose the agency to a constitutional challenge. So why is FDA pushing forward with this counterproductive idea?

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In announcing proposed changes to the 20-year old “Nutrition Facts” label, FDA reminded us that the purpose of the ubiquitous label is to “help[] consumers make informed food choices and maintain healthy dietary practices.” The update ostensibly would provide, among other improvements, “greater understanding of nutrition science.” However, one of the update’s most highly touted additions—a new line item for “Added Sugars,” triple-indented under “Carbohydrates” and “Total Sugars”— thoroughly fails to achieve these stated goals and contradicts current nutrition science.

Uninformative. If the Nutrition Facts label exists to “help consumers to make informed food choices,” then shouldn’t FDA be certain that listing added sugars would in fact be helpful? The agency, though, acknowledges in its March 3 proposal that it is “not aware of any existing consumer research that has examined this topic.

One public comment provided to FDA did offer consumer research, and the data thoroughly undercuts the “Added Sugars” proposal. The International Food Information Council (IFIC) Foundation conducted a consumer survey that conformed to OMB requirements for government research. The results revealed confusion among surveyed consumers over the meaning of “Added Sugars.” More than half of respondents believed that Added Sugars were different from the sugars included in “Total Sugars.” A substantial number believed that instead of being a part of the Total Sugars figure, Added Sugars should be added to Total Sugars. Consider, for instance, a bottle of sweetened iced tea, which is currently labeled to contain 22 grams of sugar per serving.  None of the sugar is naturally occurring. If the proposed Nutrition Facts label is adopted in its entirety, consumers might look at the 22 grams of Total Sugars, and the 22 grams of Added Sugars, and conclude that the tea contains 44 grams per serving. In addition, the survey found that a majority of consumers felt that products listing added sugars contained more sugar than was actually present, a perception that would affect their purchasing decisions.

An agency whose mission is consumer protection must not mandate confusing or misleading label information. FDA should take heed of the IFIC Foundation research and do what it should have done from the start: study the issue before mandating that Added Sugars be listed. Continue reading

D.C. Circuit’s “COOL” Decision Eases Government’s Burden in Justifying Compelled Speech

DC CircuitIf government wants to force you to say something you would not otherwise express, it must have a very good reason for doing so. This bedrock First Amendment principle applies to individuals and business enterprises alike.

In July, the U.S. Court of Appeals for the D.C. Circuit—arguably the nation’s second most important federal court—carved away at this principle and the constitutional protection it provides. Below, we discuss how that court allowed a federal agency to repeatedly change its declared reason for compelling speech and in an en banc panel opinion improperly eased government’s burden to prove a substantial governmental interest.

District Court Challenge. The compelled speech at issue in American Meat Institute (AMI) v. USDA is a country of origin label (“COOL”) recording the place of birth, residence, and slaughter of the animal from which each cut of meat taken. In the proposed rule’s Statement of Benefits and Costs, USDA asserted the mandate was justified because “certain U.S. consumers valued the designation.” AMI argued in its public comments that this interest was neither governmental nor substantial. USDA responded in the final rule with a stunning tautology: our interest is substantial and governmental because Congress empowered us to impose the COOL mandate.

When AMI sued to enjoin COOL on July 25, 2013, the agency again shifted focus, advancing a new justification that never appeared in the administrative record: “correct misleading speech and prevent consumer deception.” The federal district court bought USDA’s made-for-litigation governmental interest while denying AMI’s motion. In permitting this new justification, Judge Jackson ignored a 1947 Supreme Court precedent, SEC v. Chenery Corp. That decision holds that when judging the propriety of agency action, courts are limited to what is in the administrative record. Continue reading

Federal Jurists ♥ Utilitarian Philosopher Jeremy Bentham

BenthamThe U.S. Court of Appeals for the D.C. Circuit, sitting as an en banc panel of 11 judges, sent shock waves through the world of First Amendment enthusiasts on July 29 with its opinion in American Meat Institute v. U.S. Dept. of Agriculture. We’re still digesting this compelled speech ruling, and will be producing a number commentaries over the next several weeks with our thoughts and insights from other experts.

But in the meantime, we couldn’t resist highlighting a wonderful quip in Judge Janice Rogers Brown’s dissent and how it relates to a dissent by Justice Antonin Scalia in a 2013 opinion (which borrowed a concept from 18th Century philosopher, jurist, and utilitarianism proponent Jeremy Bentham).

Upon reading American Meat Institute, an attorney who’s written publications for WLF on commercial speech called to our attention Judge Brown’s creative phrasing, which he thought rivals a quip he recalled Justice Scalia making last year in Maryland v. King.

At the outset of her American Meat Institute dissent, Judge Brown stated, “If, as Jeremy Bentham once quipped, a fanciful argument may be dismissed as ‘nonsense upon stilts,’ the court’s analysis in this case can best be described as delirium on a pogo stick.” Such an intelligently cutting statement is not at all unusual for Judge Brown, whose well-written and cogently reasoned opinions are often peppered with witty historical references. An NPR report about Judge Brown’s U.S. Senate confirmation hearings noted that her opinion writing “reminds [one] very much of Justice Scalia’s writing style.” Continue reading

The Supreme Court’s NOT Top 10: October 2013 Term Cases the Justices Wrongly Passed Over

supreme courtThe Supreme Court press and other court observers have spilled a lot of ink this past month discussing the cases the Supreme Court took and decided during October Term 2013. Relatively little was said about the cases the court chose not to decide—and it passed over some doozies. But as Rush drummer and lyricist Neil Peart put it so eloquently, “If you choose not to decide, you still have made a choice.”

Pro-Business? Journalists like to portray the Roberts Court as particularly business friendly (see, e.g., here , here, and here; but see here), but businesses asked the Court to take plenty of cases this past term that it instead declined. When the Court denies cert in cases of such importance to business at the same time that it has a historically light docket, it can hardly be said to be pro-business. Companies crave legal certainty, so even if the Court took these cases and decided them against business interests, many times simply settling contested questions would be better than leaving them up in the air.

Wanted: More Business Cases. The Court needs to hear more business cases than it currently is, for at least two reasons. First, the unprecedented proliferation of new regulations by this administration has given rise to many more conflicts of the kind that produce Supreme Court cases. Second, to the extent the Clinton-and-Obama-appointee-dominated lower courts are predisposed against business litigants (or, more charitably, deciding close questions consistently against them), businesses will appeal more cases to the Supreme Court when they believe a lower court has denied them justice. Of course the Supreme Court justices take neither of these criteria into consideration when assessing individual cases, but surely these factors matter when assessing whether the Court leans in favor of business in forming its docket. Continue reading

COOL, Conflict Minerals, GMOs & Beyond: Much Hangs in the Balance of DC Circuit En Banc Rehearing in Commercial Speech Case

EnglishChip_lowGuest Commentary

by Chip English, Davis Wright Tremaine LLP

Americans are naturally curious and interested about the food we eat and the products we buy—e.g., non-GMO labeling, country of origin labeling (“COOL”) and “conflicts minerals.” The question I explore here is whether and how far the government may constitutionally compel commercial interests to disclose information about their products when such compelled speech goes beyond preventing consumer confusion or deception.

These First Amendment issues are now front and center before the United States Court of Appeals for the District of Columbia Circuit (often referred to as the second highest court in the United States).   While commercial speech is not as protected under the Supreme Court’s First Amendment jurisprudence, it is still subject to heightened scrutiny. But the question now before the D.C. Circuit is whether the general four part test formulated in Central Hudson Gas & Electric Corp. v. Public Ser. Comm’n, 447 U.S. 557, 566 (1980) applies to compelled speech, or whether the decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) carves out a special rule for all compelled speech as opposed to compelled speech designed to prevent confusion or deception.

On Monday, May 19, the entire D.C. Circuit, sitting en banc, will hear arguments regarding the constitutionality of USDA’s COOL requirements for meat and poultry labels. COOL requires all USDA regulated food labels to disclose the country or countries where the product was grown or produced. A panel of three judges upheld the constitutionality of COOL on March 28, 2014, concluding that Zauderer establishes essentially an exception to the more rigorous (if amorphous) Central Hudson heightened scrutiny test when the government seeks to compel commercial speech. American Meat Institute v. USDA, 1:13-cv-01033 (Mar. 28, 2014). The American Meat Institute (“AMI”) panel concluded that in addition to preventing deception, there may be multiple government interests in mandating a disclosure such as COOL that “are reasonably related to the state’s interests.” Id. at 11. The panel strained to define COOL as being supported by more than consumer curiosity—e.g., consumers may conclude that food produced in a particular country is not as safe as food produced in the U.S. (even though FDA and USDA are charged with appropriate food safety). Continue reading

Federal Regulators Shove First Amendment Down Slippery Slope with School Ad Ban Proposal

high-school-cafeteria-coloradoThink of the children!

That phrase is a “tried-and-true debate stopper,” ethicist Jack Marshall writes, “because of its ability to inhibit rational thought.” It’s no wonder, then, that professional activists and government regulators often cloak actions which might otherwise be highly questionable (and unconstitutional) in the appealing mantle of safeguarding America’s youth.

For instance, government routinely invokes protection of children as a justification for restricting commercial speech. Three years ago, a triumvirate of federal agencies tried to limit kids’ exposure to food and beverage ads through an informal guidance document. Thankfully, that effort fell flat. But Washington’s appetite for limiting “disfavored” speech—in the interest of those ubiquitous children—is never sated, as a recently proposed U.S. Department of Agriculture (USDA) regulation reminds us.

The February 26 proposal dictates how local education agencies (i.e. school boards) are to devise “local school wellness policies.” The USDA Secretary, joined by First Lady Michelle Obama, announced the rule at a White House event and proudly touted the proposal’s unprecedented prohibition of advertising for selected foods and beverages on school property. That part of the proposal violates the First Amendment, a conclusion which WLF shared with USDA last week in its formal comments to the agency. Continue reading