For the Love of Disclaimers

Jonathan Adler has a fascinating post up at The Volokh Conspiracy titled “What are the Constitutional Limits on Compelled Commercial Speech?”  The post explores litigation over the USDA’s “country of origin” labeling rules for meat – you know, when you buy hamburger at Trader Joe’s and the label says something like “contains beef from the United States, Canada, and Brazil.”  Yeah . . .

But besides providing consumers with some interesting information (and likely driving interest in the American grass-fed cattle industry as a result) 1, what do country of origin regulations really do for us?

It bears repeating that compelled speech is supposed to be subject to the same constitutional analysis as prohibited speech – meaning that such speech regulation must meet the Central Hudson standards, including the finding of a substantial state interest.

Unfortunately, the analysis is often lost on judges evaluating disclosure or disclaimer requirements.  As Adler explains, the D.C. Circuit, relying on Zauderer v. Office of Disciplinary Counsel, found that meat purveyors have only a “minimal” First Amendment interest in not disclosing purely factual information.

Problem is, that’s not what Zauderer stands for.  Rather, as I explain in the Disclaimers section, the lesser, “reasonably related” standard of review only kicks in if the advertising would be inherently misleading without the disclosure of additional facts.  Absent that finding, the full Central Hudson analysis would apply.

Adler takes this a step further, noting that the Zauderer case may be understood as having pre-met the first prong of the Central Hudson test: it inherently involved the government’s substantial interest in preventing consumer deception.  I don’t think that’s quite right, as Zauderer allows the government an easier pass on the other prongs, assuming the finding of an inherently misleading communication has been made.  But that’s where the mischief comes in; too many courts – and state bar regulators – take the latter part (the “reasonably related” test), and apply it to ALL disclosure requirements, regardless of whether or not they are intended to cure inherently misleading communications.

Such as country of origin requirements.  There’s nothing inherently misleading about selling meat without disclosing what country it came from.  It’s simply a matter of consumer curiosity.   But as Adler notes, the government has to have a substantial interest in forcing a particular communication.  And there’s little chance that a free-floating “consumer right to know” meets that bar, as proponents of bovine growth hormone labeling have learned. 2

The good news is that the D.C. Circuit may provide more clarity.  It has agreed to re-hear the case en banc, and will likely shed some important light on the conditions under which the government can compel speech.

Let’s hope that the attorney regulators, with their love of disclaimers, are paying attention.

Notes:

  1. I love grass-fed beef; if you’re in Washington State, I can’t recommend Nelson Ranch in Olympia highly enough.  Wonderful people; great beef.
  2. But by the same token, efforts by states and agribusiness to prevent producers from touting their products as being free of bovine growth hormone are similarly unlikely to pass First Amendment scrutiny.  See Int’l Dairy Food Assn. v. Boggs, 622 F.3d 628 (6th Cir. 2010).

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