Court Decision on Berkeley Cell-Phone Warning Undermines Protections Against Compelled Speech

Berkeley once marched for free speech

Berkeley once marched for free speech

No one seriously disputes that the government is entitled to adopt broadly applicable laws that require a product seller to disclose truthful information about its product so that consumers can know what they are buying. But governments with increasing frequency have been requiring sellers to convey information that cannot plausibly be deemed the sort of truthful, noncontroversial information that consumers expect to see on product labeling.

Unfortunately, recent decisions suggest that at least some courts are unwilling to protect the First Amendment right of product sellers not to be forced to communicate controversial government messages that they do not wish to convey. Such rulings undermine constitutional protections against compelled government speech that the Supreme Court has consistently recognized for the past 75 years. Continue reading

FCC Should Not Remain Silent on Berkeley’s Junk-Science Wireless Warnings

harold_frRothGuest Commentary

By Harold Furchtgott-Roth and Arielle Roth, The Hudson Institute*

In a victory for pseudo-science and a loss for the First Amendment, federal judge Edward Chen recently upheld a regulation by the City of Berkeley compelling retailers to warn customers about the supposed risks of wireless radiation. CTIA-The Wireless Ass’n v. The City of Berkeley.

The ordinance requires that cell phone retailers inform customers of the following:

To assure safety, the Federal Government requires that cell phones meet radio frequency (RF) exposure guidelines.

The statement misleadingly suggests that the federal government has singled out cell phones for safety concerns. This is not the case. The FCC’s guidelines on RF exposure (including these in 2013 and these in 2003) apply to a wide range of devices, not just cell phones. Nor has it been shown that in the absence of FCC regulations, cell phones would be unsafe. The FCC, which takes safety very seriously, has never concluded anything of the sort. Continue reading

FDA’s Latest Regulatory Salvo at “Added Sugars” Ignores Federal Laws, Due Process, Part II

FDAThis is the second part of a two-part commentary on FDA’s requirements that added sugars be listed on the food Nutrition Facts panel, and that a Daily Reference Value (DRV) be set for added sugars and included in the panel footnote. For part I, click here.

 FDA’s Reliance Solely on a DGAC Report to Establish a DRV is Unprecedented

When implementing the Nutrition Labeling and Education Act, FDA first set daily reference values in 1993 based on “sufficient scientific consensus,” a standard established by the agency under that law. FDA did not rely on a federal advisory committee’s report. Moreover, it relied only minimally on the Dietary Guidelines for Americans itself. Instead, FDA cited numerous consensus reports which, taken together, constituted “sufficient scientific consensus.” Continue reading

FDA’s Latest Regulatory Salvo at “Added Sugars” Ignores Federal Laws, Due Process, Part I

FDAAs we discussed in an August 11 post, a “supplementary proposed rule” from the Food and Drug Administration (FDA) has taken the federal government’s contrived campaign against “added sugars” to a new level. FDA not only cites a federal advisory committee’s report as retroactive justification for added-sugars disclosure on food labels, it also seeks to establish a Daily Reference Value (DRV) for added sugars. The DRV would be used to calculate a “%DV” that would appear in addition to the grams of added sugars on the Nutrition Facts label. Finally, FDA released results of a consumer survey, completed after its initial added-sugars labeling proposal in March 2014, in support of the Nutrition Facts mandate. The public comment period for these items ends on October 13.

In this two-part commentary, we discuss some of the federal statutory and administrative procedural problems with the supplementary proposed rule. These legal infirmities, which stakeholders will likely raise in their public comments, could expose the agency to court challenges. Continue reading

San Francisco’s Sweetened-Beverage Warning Mandate and Ad Ban Tread on First Amendment

GoldenGateIn past posts, we’ve characterized California as the “too much information” state. Under the everything-gives-you-cancer Proposition 65 law, even parking lots and coffee houses must post warning signs. San Francisco tried, and failed, to impose health warning signs at cellphone dealers. Undaunted, Berkeley passed its own cellphone warning ordinance this year, which faces a First Amendment challenge. And in the compelled speech spirit of those laws, Oakland has adopted an ordinance requiring builders to devote a certain square footage of new buildings to “public” art.

So it’s not surprising that San Francisco recently became the first city in America to require warnings on billboards and other media that promote “sweetened” beverages. Not content to simply compel speech, the Board of Supervisors also passed a sweeping ban on beverage advertising in certain city locales. The ordinances are so blatantly disrespectful of advertisers’ and consumers’ First Amendment rights, it’s not a question of whether a court will strike them down, but on which grounds it will do so. Continue reading

WLF Pens Guest Blog Post on 1st Amendment Victory for Craft Brewer

flying dogWashington Legal Foundation Chief Counsel for Legal Studies Glenn Lammi published a guest commentary on May 4 on the blog of the San Francisco law firm Hinman & Carmichael, Booze Rules. The post, Appellate Court Ruling Strikes Blow Against State’s Arbitrary Beer Label Ban, discusses the implications of a U.S. Court of Appeals for the Sixth Circuit ruling, Flying Dog Brewing v. Michigan Liquor Control Commission.  The court allowed a lawsuit against the Control Commission’s members individually to go forward.  Flying Dog is alleging that the commissioners violated its First Amendment rights by arbitrarily rejecting approval to the label of one of the brewery’s products.

The “21st Century Cures Act” Draft Legislation Includes Welcome Support for First Amendment Rights

FDAThe House Energy and Commerce Committee released a 400-page “discussion draft” of its proposed “21st Century Cures Act” late last month. The bill includes a broad range of reforms governing the regulation of drugs and medical devices, most of which have been warmly received by broad segments of those industries. The bill is particularly welcome to supporters of commercial speech rights; it includes several provisions designed to ensure that government regulators do not prevent manufacturers from speaking truthfully about their medical products.

Social Media

One particular area of concern has been Food and Drug Administration (FDA) restrictions on manufacturer use of social media. Subtitle I of Title I of the bill would overturn those restrictions. One characteristic of social media is that it places a premium on brevity. For example, Twitter limits messages to 140 characters or less. In a Draft Guidance issued on June 18, 2014, FDA concluded that drug/device manufacturers should rarely, if ever, attempt to use social media platforms with character space limitations because those limitations deprives manufacturers of sufficient space to include all the risk and benefit information that the agency asserts is a necessary part of any such communications. It is not sufficient, FDA concluded, for a Twitter message to include the name of the drug and its intended uses, and then provide a hyperlink where detailed risk and benefit information is available. But as Washington Legal Foundation (WLF) pointed out in comments urging withdrawal of the Draft Guidance, a de facto prohibition on use of social media platforms raises serious First Amendment concerns. The First Amendment does not allow the government to prohibit an entire method of communication simply because other methods of communications are available to the speaker, at least not where the government’s goals can be achieved through more narrowly tailored means. Continue reading