USDA’s Unconstitutional Ban of Food and Beverage Ads Establishes Dangerous Precedent

high-school-cafeteria-coloradoIn the dog days of summer 2016, the US Department of Agriculture (USDA) ordered local government authorities to ban advertising for a select group of “disfavored” food and beverage products. The agency’s brazen action establishes a deeply troubling precedent in government’s efforts to usurp our freedom to choose what we eat and drink. Over the last several years, Washington Legal Foundation has closely tracked and strategically opposed actions such as USDA’s ban through our “Eating Away Our Freedoms” project. We launched that project five years ago this month on October 20, 2011.

The website is organized by the four major tactics that activists use to denigrate certain foods and beverages and to stigmatize consumers’ choice of those products: regulation, litigation, taxation, and public-relations demonization. For several years, the “regulation” page contained far fewer references to news articles and other analyses than the other three. But as government’s appetite for food-related mandates and restrictions has grown, the number of “regulation” entries has ballooned. USDA’s ad ban is perhaps the most pernicious regulation has ever encountered. Continue reading

Telecom Regulation Experts Question FCC’s Conformity to Law, Constitution at WLF Briefing


  • Commissioner Ajit Pai, Federal Communications Commission
  • Harold Furchtgott-Roth, The Hudson Institute and FCC Commissioner, 1997-2001
  • Brett A. Shumate, Wiley Rein LLP

Related WLF Materials:


Side-stepping the Issue: Federal Judge Makes Unprecedented Move in Rejecting Google’s First Amendment Defense

first-amendmentBy Erin Garza, Judge K.K. Legett Fellow at Washington Legal Foundation and a rising third-year student at Texas Tech University School of Law

Business success in America not only generates increased dividends for shareholders and opportunities for consumers, but it also, regrettably, attracts litigation. Take, for instance, the constant flow of lawsuits search-engine companies face from individuals and organizations unhappy with their placement in search results. Search-engine businesses have consistently prevailed in such suits, arguing that the First Amendment protects how they design and apply their search algorithms.

However, a May 12, 2016 federal district court decision, which rejected Google’s motion to dismiss and allowed a search-engine optimization firm’s lawsuit to proceed, departed from this positive First Amendment trend. Was the decision in E-Ventures Worldwide, LLC v. Google an aberration or has this plaintiff found a creative new way to avoid the First Amendment defense? Continue reading

Proposed FCC Privacy Rule Takes Unauthorized Aim at ISPs and the First Amendment

FCC*Jared McClain, WLF staff attorney, contributed to this post.

On March 31, 2016, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) purporting to bring “clarity, choice, and security” to the broadband industry. In the name of accomplishing those seemingly worthwhile and innocuous goals, the Commission released a 147-page document that details a complex scheme to curtail Internet Service Providers’ (ISPs) right to use the data they lawfully collect on customer behavior. WLF filed comments last week laying out a number of commonsense, statutory, and constitutional arguments against the Proposed Rule in its current form. Continue reading

If Companies Cave on GMO Labeling, Supply-Chain Concerns Could Be the Next Mandatory Labeling Gambit

Ivory CoastCalifornia’s federal district courts, which are already overstocked with food-labeling class-action suits, are now being asked to impose new food-product disclosure mandates. Courts have thus far dismissed lawsuits seeking on-package statements regarding alleged concerns in companies’ overseas supply chains, such as forced labor. But don’t expect those losses to dampen corporate-disclosure activists’ resolve. Such suits are just one part in a larger campaign, following in the footsteps of the mandatory “GMO labeling” crusade, to require supply-chain information on product packaging.

Manufacturers of chocolate, pet food, and seafood have been targeted for their failure to disclose on their packaging the existence of forced labor and other possible human-rights violations in foreign countries from which they source their products or product ingredients. Such an omission, the class actions claim, violates California consumer-protection laws. One remedy the plaintiffs seek is disclosure of this supply-chain data on product labels and point-of-sale advertising. Continue reading

“Sorrell v. IMS Health” Is Gaining Traction in the Federal Appeals Courts

9thCirSome legal commentators heralded the U.S. Supreme Court’s 2011 decision in Sorrell v. IMS Health, Inc. as a marked expansion of First Amendment protections for commercial speech. Sorrell held that content- or speaker-based restrictions on non-misleading commercial speech regarding lawful goods or services should be subjected to “heightened” judicial scrutiny. But whether Sorrell would have any practical effect on challenges to commercial-speech restrictions was far from clear, particularly because the Court did not explain what it meant by “heightened” scrutiny and because it struck down the speech restrictions at issue under the more relaxed “intermediate scrutiny” standard that it had been applying in commercial-speech cases for more than 30 years. Continue reading

Update: San Francisco Supervisors Repeal “Sugary-Drink” Ad Ban on City Property

sanfranA September 11, 2015 WLF Legal Pulse post, San Francisco’s Sweetened-Beverage Warning Mandate and Ad Ban Tread on First Amendment, discussed the serious constitutional infirmities of two advertising-restriction ordinances adopted in the City by the Bay. One ordinance imposed an immediate sweeping ban on ads for soda and other “sugary drinks” on city property; the other requires that warnings be included on billboards and other media that promoted those products by July 2016.

The American Beverage Association (ABA) filed a First Amendment challenge to both ordinances, as well as a preliminary injunction requesting that the court put the city-property ad ban on hold. On August 25, the city asked the court to enter a stipulation and order stating that San Francisco agreed not to enforce the speech ban while ABA’s suit was pending.

On December 1, the Board of Supervisors repealed the advertising ban. The Board did not repeal the warning requirement, and ABA’s constitutional challenge of that ordinance remains pending in federal court. Supervisor Malia Cohen, who sponsored the now-repealed ad ban, sought to mitigate this acquiescence to constitutional reality at the meeting by remarking, “I want to assure you that the war rages on.”