Archive | Commercial Speech

District Court Strikes Down Graphic Tobacco Labeling Requirement

The case is R.J. Reynolds Tobacco Co. v. United States FDA (D.D.C. Feb. 29); the opinion grants plaintiffs summary judgment, for much the same reasons given in November, when the court issued a preliminary injunction.

The FDA had mandated that “the top 50% of the front and back panels of every cigarette package” must include “color images of a man exhaling cigarette smoke through a tracheotomy hole in his throat; a plume of cigarette smoke enveloping an infant receiving a kiss from his or her mother; a pair of diseased lungs next to a pair of healthy lungs; a diseased mouth afflicted with what appears to be cancerous lesions; a man breathing into an oxygen mask; a bare-chested male cadaver lying on a table, and featuring what appears to be post-autopsy chest staples down the middle of his torso; a woman weeping uncontrollably; … a man wearing a t-shirt that features a ‘no smoking’ symbol and the words ‘I QUIT’; … [and] a stylized cartoon … of a premature baby in an incubator.” R.J. Reynolds challenged this as an unconstitutional speech compulsion. And Supreme Court precedents had held that the government generally may not compel people or organizations to convey government-mandated speech, but had provided an exception for some speech on commercial advertising or labeling.

But the court in R.J. Reynolds concluded that this exception to the ban on compelled speech is limited to “purely factual and uncontroversial disclosures” “designed to protect the consumer from confusion or deception, [or] to increase consumer awareness of … risks.” The graphics here, the court concluded, didn’t fall within this exception, but were instead advocacy “crafted to evoke a strong emotional response calculated to provoke the viewer to quit or never start smoking.” [...]

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Breyer’s Dissent in Sorrell and Carolene Products

In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” Breyer adds, “To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial message) would work at cross-purposes with this more basic constitutional approach.”

The obvious problem, not directly addressed by Breyer, is that Carolene Products also states, in famous footnote 4, that “there may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.” The Court ultimately concluded that it should stringently review legislation coming within the purview of the First Amendment. So it would seem that the lesson of Carolene Products, for the purposes of Sorrell, is that while the rational basis test applies to run-of-the-mill economic legislation, once the First Amendment is implicated heightened scrutiny applies. The Sorrell majority is therefore correct.

Breyer has an implicit response, which is that the core of the First Amendment is the protection of the “marketplace of ideas,” which reflects “the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted.”

So a little history. The idea that the First Amendment is primarily about supporting the democratic process [...]

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Justice Breyer on Commercial Advertising

Justice Breyer’s dissent today in Sorrell v. IMS Health Inc. led me to do a quick check, and I found that Justice Breyer has never voted for First Amendment protection for commercial advertising in a nonunanimous case. He was in the speech-restrictive 5-4 majorities in Florida Bar v. Went For It, Inc. (1995). He was in the four-Justice dissents in Lorillard Tobacco Co. v. Reilly (2001) and Thompson v. Western States Medical Center (2002), and now a three-Justice dissent in Sorrell. He also joined the least speech-protective opinion in 44 Liquormart, Inc. v. Rhode Island (1996), though his bottom line (striking down the law) was the same as all the other Justices’. And he took a narrow view of the First Amendment right in the compelled funding of advertising cases, Glickman v. Wileman Bros. & Elliott, Inc. (1997), United States v. United Foods, Inc. (2001), and Johanns v. Livestock Marketing Ass’n (2005). (I view those compelled funding cases as quite different from speech restriction cases, but the Court has generally viewed them as quite similar in many ways.)

Justice Breyer strikes me in this respect as much like Justice Rehnquist throughout most of his career; as best I can tell, Justice Rehnquist never voted for First Amendment protection for commercial advertising in a nonunanimous case until Edenfield v. Fane (1993). None of this is to say that Justice Breyer and Justice Rehnquist are wrong of course; I only want to point out Justice Breyer’s view on the subject. Justice Breyer’s fellow Sorrell dissenter Justice Ginsburg, by contrast, has generally taken a much broader view of the First Amendment in commercial advertising cases. (As to the other Sorrell dissenter, Justice Kagan, we just don’t have any data yet besides Sorrell.) [...]

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Restricting Commercial Advertising Because It Might Persuade People

Today’s Sorrell v. IMS Health Inc. is a complicated case; I think the majority (the conservatives plus Justice Sotomayor) is basically right, but I don’t want to focus on the details of this particular case right now. Instead, I want to talk about what this case means to a much broader question having to do with the First Amendment and commercial advertising: May commercial advertising be generally restricted on the grounds that it might persuade people to do something that the government thinks is bad (as opposed to on the grounds that it’s false, or misleading, or improperly intrusive on its listeners, or some such)?

The Court had left this question unresolved for quite some time, but it looks like Sorrell might strengthen the case that the answer is “no” (at least setting aside the special case of speech that urges an unlawful commercial transaction). Let me chart the history of the debate.

1. From 1942 until the mid-1970s, the Supreme Court took the view that commercial advertising is entirely excluded from First Amendment protection. But in Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976), the Court held that such advertising is generally protected (though less so than other speech). The case involved a ban on price advertising by pharmacies, and the government argued that such price advertising would lead people to go to the lowest-cost pharmacists, who would in turn provide less service; and other pharmacists would likely be lead by competitive pressure to have to similarly provide low cost and less service. But the Court disagreed: Under the First Amendment, speech can’t be restricted because it will persuade people to do something that’s supposedly harmful. “[The choice] between the dangers of suppressing information, and the dangers of its misuse if it is freely [...]

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Plastic Bag Makers Sue ChicoBag for Exaggerating Environmental Claims

Several manufacturers of disposable plastic bags have filed suit against reusable bag maker ChicoBag for false and misleading claims about the environmental superiority of its reusable bags over disposable bags. The complaint claims that ChicoBag’s advertising and promotional materials violate the federal Lanham Act and the South Carolina Unfair Trade Practices Act. According to the complaining bag makers — Hilex Poly Co., Superbag Co. and Advance Polybag Inc. — they have been harmed by ChicoBag’s exaggerated claims about their products. Among other things, ChicoBag created the “BagMonster” to symbolize the number of disposable bags used by the average American, and has also launched this site about the suit.

There appears to be no dispute that ChicoBag made some incorrect or poorly substantiated claims. A company website acknowledges that it had relied upon some out-of-date sources, and has since updated and documented the claims made on its “Learn the Facts” page and elsewhere. This has not stopped the suit, however. Here’s more from the New York Times, San Francisco Chronicle, and Chico News & Review.

The context of this dispute is a broader debate about the merits of disposable products. ChicoBag may exaggerate the threat posed by the accumulation of solid waste, but there are other environmental (and even economic) reasons one may prefer reusable bags. The ChicoBag itself is a handy little product, even if it won’t save the earth.

As this litigation proceeds it will be interesting to see whether ChicoBag mounts a First Amendment defense. The company’s claims are as much about spreading an environmental message as they are promoting a product — and public debate over such questions would seem to be worth constitutional protection, even if economically motivated claims about a specific product are not. Somewhat ironically, one of the last companies [...]

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Sixth Circuit Holds Ohio Can’t Prohibit “rbST-Free” Labels

Last month, in International Dairy Foods Association v. Boggs, the U.S. Court of Appeals for the Sixth Circuit struck down Ohio’s regulations barring dairy processors from labeling milk as “rbST-Free,” but upheld the agency’s ability to require disclaimers for some rbST-related product claims, subject to First Amendment constraints.   In the process the decision illustrated how environmental preferences, such as for “organic” food, benefit from constitutional protection of commercial speech, including product labels.

Some milk producers administer recombinant bovine somatotropin (rbST, aka recombinant bovine growth hormone or rbGH) to their dairy cows to increase milk production.  Although there is (as yet) no scientific evidence that the use of rbST poses any health risk to humans, or even that rbST can be detected in milk from treated cows, some consumers prefer to purchase milk from untreated cows.  In response to this concern, some producers (including members of the Organic Trade Association) sought to label their milk products as “rbST-free” or to otherwise indicate that their milk did not come from rbST-treated cows.

The Ohio Department of Agriculture, pursuant to an Executive Order by Governor Ted Strickland, adopted rules governing the such voluntary labeling of milk products.  Specifically, these rules barred the use of  “rbST Free” or equivalent composition claims on milk labels.  In addition, the rules required that any production claims about milk, such as “this milk is from cows not treated with rbST,” be accompanied with a prominent disclaimer noting that the FDA has determined that there is no significant difference between  milk from cows administered rbST and those that have not.  The rules were influenced by, and largely followed, a 1994 FDA guidance on milk labeling.

ODA defended its rules as reasonable measures to prevent false and misleading product claims about milk.  The Sixth Circuit disagreed.  Subjecting the [...]

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Should Genetically Modified Salmon Be Labeled?

The Food and Drug Administration is considering whether to approve genetically modified salmon for human consumption.  Aquabounty Technologies has submitted its “AquAdvantage” salmon, an Atlantic salmon genetically engineered to mature faster than wild salmon, for FDA approval.  Thus far, things look good for Aquabounty, as the FDA’s staff review concluded that AquAdvantage salmon are as safe to eat as other Atlantic salmon.  Further, the staff found “no biologically relevant difference” between the fish.

If the FDA approves AquAdvantage, it is unlikely that the FDA will require that AquAdvantage be labeled as genetically modified.  Indeed, the FDA may lack authority to require such a label.  As the Washington Post reports, if the FDA concludes that AquAdvantage salmon are not materially different than other salmon, there is no basis to mandate disclosure, as failure to label the fish does not mislead the consumer.  Failure to disclose how a product is made — in this case, that an eel gene was inserted in the salmon to make it grow faster — is not misleading to consumers.  Under existing law, so long as the genetically engineered salmon is not materially different than other salmon, the fact that it was genetically engineered is no more relevant than what it was fed, the size of its pen (assuming farm-raised salmon), or how it was killed.  Producers are free to disclose such process characteristics, but the FDA will not mandate it.

Would the FDA’s failure to mandate the labeling of AquAdvantage salmon be a problem?  I think not.  It is one thing to require producers to label their products so that consumers are aware of potentially harmful characteristics.  It is quite another to force a producer to label a product to disclose a non-material fact about the product that some consumers may dislike, such as [...]

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