productsafety&consumerprotection There Is No …...example, enacted a GMO labeling law in 2014 that requires the “clear and conspicuous” labeling of all food intended for human

26 / Regulation / Fall 2016

In late July, President Obama quietly signed a new lawmandating product labels for foods containing ingre-dients produced with modern genetic engineeringtechniques—that is, “genetically modified organisms”(GMOs). Under the new law, the U.S. Departmentof agriculture must develop standards for productsymbols or electronic product codes that disclose the

presence of GMO ingredients in foods.Some consumer and environmental groups sought mandatory

GMO labels because they oppose and wish to stigmatize GMO-containing foods. Industry groups recognized that special interestpressure would result in some sort of labeling requirement, sothey pushed for relatively lax federal standards to combat morestringent requirements adopted at the state level. Vermont, forexample, enacted a GMO labeling law in 2014 that requires the

“clear and conspicuous” labeling of all food intended for humanconsumption “produced entirely or in part from genetic engi-neering.” Such state requirements are largely preempted by thenew federal law. Moreover, larger food producers expect to havesignificant influence on the implementing regulations adoptedby the Department of agriculture.

although supported by portions of the food industry, man-datory GMO content labels are unscientific, unnecessary, andlikely unconstitutional. While the constitutional protection of

Jonathan h. adler is the inaugural Johan Verheij Memorial Professor of lawand director of the Center for Business law and regulation at the Case Westernreserve University School of law and a senior fellow at the Property and environ-ment research Center.

this is adapted from his article, “Compelled Commercial Speech and the Consumer‘right to Know,’” Arizona Law Review, Vol. 58, no. 2 (2016).

There Is NoCoNsumer ‘rIghTTo KNow’

p r o d u c t s a f e t y & c o n s u m e r p r o t e c t i o n

Mandatory labels for GMO foodsare unscientific, unnecessary,and unconstitutional.✒ By Jonathan h. adler

Fall 2016 / Regulation / 27

commercial speech is less extensive than that provided to corepolitical speech, there are limits to what the government maycompel producers and sellers to disclose directly to consumers.

The government’s ability to force the disclosure of potentiallyvaluable information at the point of sale is substantial, but it isnot without limits. Even where consumers may greatly desire thedisclosure of certain information on a product label or disclaimer,the government may be constitutionally prohibited from acting.The government may compel speech about products or servicesoffered for sale where it has a sufficient governmental interest,but this requires more than consumer curiosity.

Governments at all levels frequently require the disclosure ofpotentially relevant information about goods or services offered

for sale. Many of these requirements protect consumers fromharms of which they are unaware and the requirements are rela-tively uncontroversial. In recent years, however, governments haveimposedbroaderdisclosurerequirementsextendingbeyondproductcharacteristics to production processes, product history, and eveninformation about the producer or service provider. Such disclosurerequirements, often predicated on an alleged “consumer right toknow,” have prompted legal challenges. In just the last two years,courts have struggled with constitutional challenges to mandatorycountry-of-origin labels, mandatory GMO content labels, “conflictmineral” disclosures, and labels about the purported health risksposed by cell phones. These court battles reveal confusion and uncer-tainty about the extent to which the First amendment protects and

limits compelled commercial speech.

CoMMerCial SPeeCh

Commercial speech is generally definedasthatspeechwhichdoesnomorethanpropose a commercial transaction or isrelated solely to the economic interestsof the speaker and its audience. Underexisting doctrine, commercial speechis protected speech, even if it is not asprotected as core political speech. asthe Court explained in United States v.United Foods (2001), “The fact that thespeech is in aid of a commercial pur-pose does not deprive respondent ofall First amendment protection.” Onereason for this, as the Court noted inthe 1976 decision Virginia State Boardof Pharmacy v. Virginia Citizens ConsumerCouncil, is that consumers have a “keen”interest in information about “who isproducing and selling what product,for what reason, and at what price.”Such information helps ensure thatconsumer decisions are “intelligentand well-informed.” Insofar as accu-rate commercial information informsconsumer decisions, it further servesto enhance market efficiency and maxi-mize consumer welfare.

Commercial speech is not onlyabout questions of price and qual-ity, however. as the Court also notedin Virginia State Board, advertisementsand other commercial speech mayalso “be of general public interest.”as Justice Harry Blackmun explained,if commercial information “is indis-

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pensable to the proper allocation of resources in a free enterprisesystem, it is also indispensable to the formation of intelligentopinions as to how that system ought to be regulated or altered.”Knowledge about the prices and characteristics of various goodsand services informs policy preferences. In this way, even com-mercial speech that is not directly imbued with normative orpolitical content helps to “enlighten public decisionmaking ina democracy.”

Much commercial speech is imbued with political or other nor-mative content, making it particularly difficult to exclude advertis-ing and other forms of commercial speech from constitutionalprotection. If a major automaker airs a television advertisementfor one of its vehicles in which a consumer criticizes the federalgovernment’s decision to bail out the automaker’s competitors,is this not also political speech? Or what if a corporation suggeststhat one reason to purchase its products or services is its commit-ment to “fair trade” or a particular vision of ecological sustain-ability? Such appeals necessarily rely upon the communicationof implicit political and moral messages that extend well beyondthe specific attributes of a given product or service.

For many consumers, consumption decisions are imbuedwith political meaning, too. The choice of what products to buyand what labels to display is often politically motivated. Purchas-ing a product can be a political or ethical act. Just consider theindividual who buys a Toyota Prius or insists upon shopping ata particular “socially responsible” store. Such choices may reflectpersonal preferences, but they also have an expressive component,much like other forms of protected speech. as NorthwesternUniversity law professor Martin Redish notes, “Speech concern-ing commercial products and services can facilitate private self-government in much the same way that political speech fosterscollective self-government,” and both forms of self-governmentfoster the values of democracy.

In Central Hudson Gas & Electric Corp. v. Public Service Commis-sion (1980), the Supreme Court established a four-part test forgovernment restrictions on commercial speech. First, the speechmust concern lawful activity and not be fraudulent or inherentlymisleading to qualify for protection. If the speech qualifies, courtsnext consider whether the government has asserted a “substantial”governmental interest, such as preventing consumer deceptionor protecting public health. If so, courts proceed to considerwhether the regulation “directly advances” the government’sasserted interest and whether it is “more extensive than is neces-sary to serve that interest.” The government bears the burden ofestablishing that its regulation meets those requirements. Thoughmore permissive than the tests the Court applies to restrictions onpolitical and other core-protected speech, Central Hudson providesmeaningful protection to commercial speech.

CoMPelled CoMMerCial SPeeCh

The First amendment applies when the government seeks tocompel speech just as much as when it seeks to restrict speech.

as the Court explained in Turner Broadcasting System v. FCC (1994),“at the heart of the First amendment lies the principle that eachperson should decide for him or herself the ideas and beliefsdeserving of expression, consideration, and adherence.” Forcingan individual to express views with which he or she disagrees canpose just as great a threat to the free expression of thoughts andideas as limitations on speech. laws that compel speech “posethe inherent risk that the Government seeks not to advance alegitimate regulatory goal, but to suppress unpopular ideas orinformation or manipulate the public debate through coercionrather than persuasion.” Time and resources spent communi-cating a government-mandated message cannot be devoted tothe communication of the speaker’s preferred message. at thesame time, the ability of listeners to hear—let alone process andactively consider—information and other messages is limited, socompelling more speech does not always increase communica-tion or understanding.

If commercial speech is subject to constitutional protectionunder Central Hudson, and constitutionally protected freedom ofspeech includes both commercial speech and an equal right notto speak, then it would seem that Central Hudson should applyequally to commercial speech restrictions and commercial speechcompulsions. In particular, this simple formula would suggestthat any regulation of commercial speech must serve a substan-tial state interest. The Supreme Court has never so held directly,however. Nonetheless, all of the Supreme Court’s decisions incases evaluating compelled commercial speech are consistent withsuch an approach, as are most federal statutes and regulationsthat require disclosure to consumers or other forms of compelledcommercial speech.

Nonetheless, some courts and commentators have suggestedthat compelled commercial speech, and the compelled disclosureof factual information in particular, should be subject to lessdemanding scrutiny. Much of the confusion regarding the propertest for compelled commercial speech stems from the SupremeCourt’s decision in Zauderer v. Office of Disciplinary Counsel (1985),in which the Court upheld a requirement that attorneys whoadvertise contingent-fee rates must disclose that clients couldbe liable for court costs if their suits are unsuccessful. Failure todisclose this information could mislead some consumers intothinking that a contingent-fee arrangement protected themagainst any financial risk of a failed lawsuit when, in fact, theycould still be financially liable for court costs. In upholding thedisclosure requirement, the Court explained that a requirementthat a seller or service provider disclose factual information willbe upheld so long as the requirement is not unduly burdensomeand the requirement is “reasonably related to the State’s interestin preventing deception of consumers.”

Some courts and commentators have read Zauderer to establishthat the compelled disclosure of factual information is subject toa lesser degree of scrutiny than is provided by Central Hudson. TheU.S. Court of appeals for the Second Circuit, for example, held


in National Electrical Manufacturers Association v. Sorrell (2001) thatsuch a disclosure requirement “does not offend the importantutilitarian and individual liberty interests that lie at the heart ofthe First amendment.” Such analyses make the mistake of readingZauderer as providing an alternative test for compelled commercialspeech, as opposed to a relatively straightforward application ofthe Central Hudson framework.

as noted above, Central Hudson requires that the state assert a“substantial interest,” such as protecting consumers from unwittingharm, in order to justify regulation of commercial speech. Oncethis interest has been established, however, then courts may con-clude that certain forms of speech regulation, such as mandateddisclosures of supplemental disclaimers, are less burdensome thanrestrictions or prohibitions on speech. Zauderer is completely con-sistent with this understanding. It was undisputed in Zauderer that

the disclosure requirement served the substantial state interest inpreventing consumer deception and protecting consumers fromunwitting harm—specifically the undisclosed potential for financialliability for court costs. Further, preventing consumers from beingmisled by advertising or other commercial speech is unquestionablya “substantial” state interest under Central Hudson. Indeed, limitson speech that is inherently or deliberately misleading need notsatisfy Central Hudson’s “substantial interest” requirement at allfor, under Central Hudson, such speech is not protected. In manycases—perhaps even most cases—the means of requiring additionaldisclaimers or disclosures will serve the government’s interest in amore narrowly tailored fashion than other regulatory alternatives.The Court made this very point in Central Hudson. after concludingthat the government had identified a substantial interest that couldjustify the regulation of commercial speech—in this case, energyconservation—the Court declared that a mandatory disclosure orqualifying statement would be a less intrusive means of satisfyingthe government’s interest than a speech restriction. Nowhere inCentral Hudson, however, did the Court suggest that such a speechrequirement could be justified absent the identification of a sub-stantial interest.

Mandatory disclosures and other types of compelled com-mercial speech will often constitute a less onerous burden thanrestrictions or outright prohibitions, particularly where the state’sinterest is in protecting consumers from false or potentially

misleading communication or preventing consumers from suf-fering unwitting harms. Where commercial speech is potentiallymisleading or even unclear, a requirement of curative counter-speech will typically be preferable to a limitation on speech. as theCourt has noted time and again, where possible, the remedy forpotentially misleading speech should be yet more speech. Thus,requirements that producers or vendors qualify claims aboutproducts in advertisements and labels are more permissible thanlimitations or prohibitions on label or ad claims.

Many, if not most, federal mandatory labeling requirementscan be justified in these terms. Nutritional content mandates, forexample, are readily supported by the state’s interest in protect-ing consumers from unwitting harm. Individuals with specialdietary requirements—such as those who need to avoid particularsubstances or limit their calorie, fat, or carbohydrate consump-

tion—could be adversely affected were suchinformation not disclosed on the productlabel. The same rationale could apply torequirements that automobile or appliancemakers disclose the amount of energy theirproducts consume, as such requirementsinform consumers about the financial costsof owning and operating such products.This is not to say that all such requirementsare wise or well-designed, just that theysatisfy the substantial interest requirement.

When information is harmful / The same justification would notjustify mandated disclosure of information about which con-sumers have ethical or religious concerns, but not because suchconcerns are unserious or somehow illegitimate. When a diabeticeats something with more or less sugar than she was aware of,health complications can result, whether or not she ever becomesaware of the food’s content. There is a potential for unwittingharm. When an ethical vegetarian consumes a food that, unbe-knownst to him, contains an animal product, there is no harmwithout disclosure. The harm, insofar as it occurs, comes fromthe information that is conveyed. Further, the harm experienced,while real, is the sort that is generally not accepted as a basis forlimiting speech. Preventing a listener from becoming upset isnot a substantial state interest for First amendment purposes.

Many consumers care deeply about product, process, or pro-ducer characteristics that have no direct, tangible effect on theirphysical or financial well-being. Such preferences undoubtedlyaffect the utility consumers derive from various products andservices. Yet no matter how substantial such preferences may be,they are not—and indeed cannot be—a substantial state interestsufficient to justify the regulation of speech. any harm the indi-vidual suffers comes from the knowledge that a product’s contentsor the manner in which it was produced did not conform to theindividual’s subjective value preferences. The injury would notexist were the information not disclosed.

No matter how substantial such consumer preferencesmay be, they are not—and indeed cannot be—a substantial state interest sufficient to justify theregulation of speech.



It should also be noted that where mandatory labels are per-missible, not just any label will do. There must also be a suffi-ciently close relationship between the government’s interest, suchas a specific health or safety threat, and the label. Under CentralHudson, any mandated disclosure must “directly advance” thegovernment’s asserted interest and not be “more extensive thanis necessary to serve that interest.” The precise limits of theseprongs of the Central Hudson test lie beyond the scope of thisarticle, yet as already noted, simple disclosure requirements thatfocus on ensuring consumers have specific types of informationgenerally satisfy these requirements, provided that a substantialgovernment interest has been identified.

the ConSUMer “right to KnoW”

Many advocates of labeling and disclosure requirements assertthat consumers have a “right to know” about various prod-uct or process characteristics. Yet not alldisclosures can be justified under CentralHudson. There is nothing inherently mis-leading about failing to disclose every bitof information a consumer might find tobe of interest. Infinite disclosure is neitherpossible nor desirable. Consumers maydesire all sorts of information about howproducts were produced or who producedthem. Yet this, by itself, does not consti-tute a substantial government interest.Further, allowing the imposition of label-ing requirements or other disclosures at the point of sale basedon nothing more than an asserted consumer right to know riskscompromising other interests protected by the First amendment.

There is a substantial governmental interest in protecting theuninformed or unwitting consumer against potential harmsbecause such a consumer, by definition, cannot protect herselfin the marketplace. The same cannot be said of the consumerwho has strong preferences for given product characteristics andchooses to act accordingly. For the informed consumer, a regimethat prohibits false and misleading speech, and otherwise allowsproducers to label and promote their products accordingly, issufficient to enable the consumer to protect her own interests.

There are at least four reasons why the assertion of a consumerright to know, unconnected to a more substantial governmentalinterest, cannot be sufficient to compel commercial speech ifsuch speech is to continue to receive meaningful First amend-ment protection. First, the consumer right to know is a rationalewithout discernible limits. If such an interest is a substantialinterest then there is, quite literally, no end to the disclosures thatcan be mandated. Second, insofar as most calls for disclosure onthe basis of a consumer right to know are based upon subjective,normative claims, mandating disclosure is not viewpoint-neutral.Compelling commercial speech on this basis can effectively forceproducers and sellers to give voices to perspectives and premises

that they do not share, including politically charged messagesabout what forms of production or economic organization aremorally, or otherwise, superior. Third, mandating such disclo-sures can effectively force producers and sellers to give voice toa politically determined set of values and to stigmatize theirown otherwise legal products and production methods. Finally,allowing an alleged consumer right to know to serve as a basis formandated disclosure facilitates government intrusion into whatare essentially political debates concerning subjects that lie at thecore of First amendment interests.

Lack of limits / Consumers are potentially interested in a near-infinite range of product and process characteristics. Some mightwant to know what is in a product; others might want to knowhow and by whom it was made. Consider something as simple asa chicken breast. Some consumers may want to know the nutri-

tional content, and others may care how the chicken breast washandled or treated—e.g., whether it was ever frozen or injected withsaline. Some care about how the producer treated the chickens—e.g., whether they were caged or free-range, whether antibioticswere administered—and others care more about the treatment ofthe workers. Some care where the chicken was raised or processed—e.g., whether it was locally or domestically produced—while otherswould like to know more specifics about the packaging and theextent to which it could be recycled. Still others may care aboutthe company that raised the chicken, whether it is a locally ownedfarm, a co-op, or a large corporation, while others may care toknow more about the company from which it would be purchased.Still others may be interested in the environmental impact of rais-ing the chicken—whether there were water pollution concerns orthe production was carbon neutral—while others may like to knowwhat the producer and seller might do with their profits—whetherportions will be given to charity or invested in environmentalinitiatives. Some may want to know the political opinions of thecompany’s executives or their pattern of political contributions.Others may wish to know whether a firm funds politically activetrade associations and public interest groups, supports or opposessame-sex marriage, and so on.

If a generic consumer right to know were sufficient to compelcommercial speech, every potential labeling or disclosure mandate

For the informed consumer, a regime that prohibits falseand misleading speech, and otherwise allows producers tolabel and promote their products accordingly, is sufficientto enable the consumer to protect her own interests.


would satisfy this requirement. The simple existence of such amandate—the adoption of legislation or promulgation of a regula-tion—is itself evidence that some number of consumers are inter-ested in such information. Otherwise, such a requirement wouldnever be adopted in the first place. Therefore, any requirementenacted into law or promulgated by an agency would necessarilysatisfy the standard of consumer interest, and there would beno inherent limit to the sorts of information government couldcompel individuals and companies to disclose.

The lack of meaningful limits matters because a seller hasonly so much time to communicate the virtues of her product toa potential customer. a product label or advertisement can onlyhold so much information. Mandating that a producer discloseone set of information may come at the expense of another setof information more valued by consumers. at the same time, theconsumer’s attention span and willingness to digest and considerproduct-related information is limited.

Lack of neutrality / Compelled commercial speech about productsand services is often not viewpoint neutral. This too is constitu-tionally problematic, as commercial speech—like all protectedspeech—must be regulated in a viewpoint and content-neutralmanner.

When the government requires a seller or producer to disclosespecific information about a product or service, the requirementitself communicates a message. The selection of what informa-tion to disclose implicitly confirms that this information is (orshould be) considered relevant to the intended audience. Man-dated nutrition and ingredient labels communicate that thereare reasons why at least some consumers should care about thenutritional content and ingredients of foods. Where disclosuresare based upon a potential health risk, the government interestis clear: some consumers risk getting sick if they are not aware ofwhat they eat. Eliminating that information asymmetry directlyadvances the government’s interest in protecting public health.Where such an interest is lacking, however, the basis for the labelis to communicate that this specific characteristic or property iswhat individuals should care about.

a government-mandated label operates as a de facto warningto consumers. It communicates to consumers that, of all a prod-uct’s characteristics, this one matters. as a consequence, a manda-tory label communicates a value and viewpoint-based messageabout what is important for consumers to consider.

So, when the government mandates that producers and sellerslabel foods that contain GMOs, it communicates to consumersthat potential GMO content is something that should matter tothem. Consumers may be unaware of the repeated studies andreports from the National academies of Science indicating thatGMOs pose no unique health risks, but they will see the label. Thegovernment’s selection of this characteristic (out of all those itcould select) communicates that the characteristic is particularlyrelevant to consumer welfare and is something that consumers

should consider when deciding whether to purchase a product.The producer is required to give voice to the idea that a productthat may contain GMOs is meaningfully different—normativelyif not physically—than a product that does not, even if the pro-ducer does not agree with the message. In imposing the labelingrequirement, the government adopts a specific viewpoint andthen forces the producer to express it.

threat of stigma / Just because a label or disclosure containsfactually true information does not mean that it is value-free orneutral. Such labels often have the intent and effect of suggestingthat consumers should think twice before purchasing the prod-uct in question. Indeed, that is the point. Some information-based regulatory tools are explicitly designed to “shame” com-panies to change their behavior. a mandatory label for organicproduce that says “Produced with animal feces” could be literallytrue, but would also stigmatize the products at issue. In suchcases, the requirement to disclose becomes a requirement thata producer or seller potentially stigmatize its own product—tosay to consumers, “Think about it before you buy this productbecause of the following fact or characteristic about which youwere previously unaware.” Such a requirement effectively forcesa producer or seller to testify against its own product and implic-itly endorse the notion that the disclosure of a given fact shouldbe relevant to a consumer’s decision about whether to purchasethe product. Such requirements may be used to pursue ideologi-cal agendas or to place burdens upon competitors.

Consider again the case of GMOs. When a producer adornsits product with a “GMO-free” label, it is communicating toconsumers that this is a product characteristic that should influ-ence consumer choices. Such producers are seeking to encourageconsumers to consider this as a relevant factor in the choice tobuy the product. So, for example, Chipotle seeks to draw con-sumer attention to its proclamations that the lack of GMOsdemonstrates the company’s commitment to product quality(and perhaps draws consumer attention away from the chain’sembarrassing record of food contamination).

When the government requires producers and sellers to displaya “may contain GMOs” or “GMO” label, however, this disclosurecommunicates that this is a factor consumers should consider,and may even suggest to some consumers that there is something

“wrong” or unsafe about products bearing such a label. Indeed,this is one reason why anti-GMO organizations seek to imposemandatory labeling requirements. They seek to influence con-sumer behavior not by encouraging the adoption of a voluntarylabel, but by requiring other producers and sellers to engage inpotentially stigmatizing speech.

The risk of stigma is much less where the government merelymandates the use of disclaimers about specific claims. It is onething when a seller is required to qualify a claim that it has cho-sen to make—e.g., to acknowledge that an implied health benefitis unproven or unverified, or disclose that a “free” product offer



may still obligate the purchaser to pay processing charges—butquite another to require a disclosure or warning absent suchconcerns. Mandatory disclosure of characteristics that someconsumers might perceive as undesirable, once disclosed, isparticularly likely to pose a risk of stigmatizing a product whenthe disclosure is not justified by the need to prevent consumerdeception, clarify or qualify other product claims, or otherwiseprotect unwitting consumers.

threat to political discourse / Commercial speech is generallytreated as distinct from political speech, but the dividing linesare not always so clear. Some types of compelled disclosure orcommunication are, for all practical purposes, requirements thatcommercial actors communicate value-laden messages about inherently politicalquestions, such as how products shouldbe made, animals should be treated, andso on. a requirement that sellers dis-close whether the workers who made agiven product are unionized or whethera product is sourced from countries with

“acceptable” political regimes is infusedwith political content. That the messageaccompanies a commercial communica-tion, such as an advertisement or productlabel, does not change that fact.

Political debate and discourse extend far beyond the ballotbox and reach into commercial marketplaces. allowing thegovernment to compel commercial speech solely because a givenpolitical coalition or constituency seeks such disclosure risksimpressing private actors into the service of inherently politicalcauses. as the Court explained in Pacific Gas & Electric Co. v. PublicUtilities Commission (1986), “Were the government freely able tocompel corporate speakers to propound political messages withwhich they disagree, this protection would be empty, for thegovernment could require speakers to affirm in one breath thatwhich they deny in the next.” One way to address this concerncould be for the courts to apply greater scrutiny when they con-clude that a given compelled speech requirement is sufficientlypolitical. However, a cleaner and easier approach—and one thatdemands less of an already complex and occasionally uncertaindoctrine—is simply to require such compulsions be justifiedwith a substantial governmental interest. Such an approach isconsistent with the Court’s commercial speech jurisprudenceand provides ample leeway for those disclosure requirementsthat are needed to safeguard consumers and facilitate otherimportant governmental interests.

Who needS Mandatory laBelS?

arguments that government regulations should require thedisclosure of particular information about products or servicesrest on the premise that such information will not be disclosed—

or will not be disclosed sufficiently—absent such a governmentrequirement. This is the basis upon which it is asserted that thegovernment has a substantial interest in mandating disclosureor otherwise compelling speech: Were it not for the require-ment, the information would not be disclosed or otherwisecommunicated.

In practice, however, market pressures quite effectively inducethe disclosure of information that consumers desire. Manufactur-ers have substantial economic incentives to provide consumerswith information about their products, as well as to discoverwhat product or process attributes consumers will find appeal-ing. Firms use labels to attract customers, differentiate theirproducts from those of their competitors, and promote the

presence of potentially desirable product characteristics. Indeed,in competitive markets producers have an incentive to discloseany information that is likely to make their product more desir-able to consumers.

In competitive markets, the failure to disclose informationdesired by consumers can be costly. Consumers generally assumethat firms highlight the positive attributes of their products. asa result, the failure to disclose positive information creates anegative inference, particularly where competitors highlight theattribute in question. This often creates a dynamic known as

“unfolding” or “competitive disclosure” as firms face pressure tomatch the positive claims made by their competitors.

Producers and sellers voluntarily provide consumers withsubstantial information about the virtues of their products.Some food producers voluntarily disclose information that mayappeal to some consumers. Some inform potential consumersabout their commitment to humane treatment of animals, whileothers trumpet their refusal to use particular chemicals or pro-duction processes, or their commitment to particular charities.Firms that do not ensure that their products are manufacturedin accordance with human rights or social justice concerns maynot voluntarily disclose that fact, but competing firms are not shyabout highlighting their commitment to such concerns.

Consumer preferences change over time, and competitivemarkets respond rapidly to such changes. Producer decisionsabout how to advertise or promote their products contribute tothis change, as producers discover latent consumer preferences

Allowing the government to compel commercial speechsolely because a given political coalition or constituencyseeks such disclosure risks impressing private actors intothe service of inherently political causes.


and contribute to the evolution of such preferences. Some 20or 30 years ago, consumers may not have cared about how farmanimals were treated or whether certain products were derivedfrom genetically engineered seeds. The decision of a trendy foodoutlet to highlight both characteristics not only positions thatfirm vis-à-vis its competitors, it also contributes to a broader civicdialogue about what product characteristics should be important.

Even if only a substantial minority of consumers desire infor-mation about how certain types of products are produced, orabout specific producer characteristics, it is likely that morefirms will begin to label their products accordingly. Producerscan do this in an unobtrusive way or take other steps to com-municate with interested consumers. Consider the developmentof kosher food labeling. Religiously observant Jews demand foodthat is prepared in accordance with kosher laws. In response tothis demand, many food producers submit their products toa rabbinical council for evaluation so that they can be koshercertified, and be eligible for a voluntary label. Even though thedemand for kosher foods is only a small part of the market—andthe percentage of consumers who must eat kosher food becauseof their religious beliefs is even smaller—many large corporationsparticipate in this process. (See “Kosher Certification as a Modelof Private Regulation,” Fall 2013.)

gMo laBeling

There is a widespread scientific consensus that modern geneticengineering, in itself, poses no distinct risk to human health. Thebroad scientific consensus that genetic engineering, in itself, doesnot create any unique, or even identifiable, risk for human healthmeans that a mandatory label or disclosure requirement for theuse of such techniques cannot be justified on the grounds that itis protecting unwitting consumers from harm. If a GMO ingre-dient poses a risk to consumers, it is not because of the geneticmodification technique. Rather, as the FDa has explained, anyrisk will be the result of the specific modification made.

Even though the use of genetic modification techniques maynot pose any identifiable risks to human health, some consumerswould prefer to purchase products that were not developed withthese technologies. In response, many producers have sought tolabel their products in order to capitalize on this sentiment. Con-sumers who wish to avoid GMOs may also do so by purchasingproducts that are labeled “USDa organic” because under federalregulations only foods that are made without GMO ingredientsqualify for that label. (See “The USDa’s Meaningless ‘Organic’label,” Spring 2016.) Even before the adoption of federal GMOlabels, private companies such as Campbell Soup had pledged tovoluntarily label their products.

In sum, there is no scientific basis for imposing GMO labels asa consumer protection measure, as GMO content poses no threatto consumers. Further, those consumers who care about theGMO content of their foods are fully able to obtain products thatmeet their preferences. as a consequence, there is no substantial

interest that can justify the imposition of a mandatory labelingrequirement. Worse, a mandatory GMO label poses the risk ofstigmatizing such products and forces producers to embrace thecontested notion that there is something special or noteworthyabout GMO ingredients. For this reason, such label requirementsare constitutionally suspect.

ConClUSion

Consumers may want to know all sorts of things about howproducts are made or who made them, but we typically let themarket provide such information. Some consumers care aboutwhether their clothes were made by unionized workers or poorchildren in developing nations. Some want to know whethertheir food is organic, kosher, or produced humanely. Still oth-ers may care whether a company’s executives support particularpoliticians or specific policies. In all such cases, so long as thereis no material difference in the product that could adverselyaffect the consumer, we leave the disclosure of such things tothe private marketplace.

Protecting compelled commercial speech as commercial speechunder Central Hudson does not pose a threat to the free flow ofinformation in the marketplace. To the contrary, constrainingundue government interference in the marketplace ensures thebroadest space for the discovery and disclosure of information thatconsumers are most concerned about, while also ensuring that thegovernment retains the ability to protect consumers from unscru-pulous producers and sellers. The federal government shouldhave heeded such concerns before rushing to impose mandatoryGMO labels. Such labels are unscientific, unnecessary, and—as theanalysis above suggests—likely unconstitutional.

READINGS

■ “advertising: Not ‘low Value’ Speech,” by Daniel E. Troy. Yale Journal of Regulation,Vol. 16 (1999).

■ “Commercial Speech, First amendment Intuitionism, and the Twilight Zone ofViewpoint Discrimination,” by Martin H. Redish. Loyola of Los Angeles Law Review,Vol. 41 (2007).

■ “Compelled Commercial Speech and the Consumer ‘Right to Know,’” by Jona-than H. adler. Arizona Law Review, Vol. 58, No. 2 (2016).

■ “The Efficient Regulation of Consumer Information,” by Howard Beales, et al.Journal of Law & Economics, Vol. 24 (1981).

■ Genetically Engineered Crops: Experiences and Prospects, produced by the Board onagriculture and life Sciences, National academy of Sciences. National academiesPress, 2016.

■ “Information, Imagery, and the First amendment: a Case for Expansive Protec-tion of Commercial Speech,” by Rodney Smolla. Texas Law Review, Vol. 71 (1993).

■ “Information libertarianism,” by Jane R. Bambauer and Derek E. Bambauer.California Law Review, Vol. 105 (forthcoming).

■ More than You Wanted to Know: The Failure of Mandated Disclosure, by Omri Ben-Shahar and Carl E. Schnieder. Princeton University Press, 2014.

■ Thwarting Consumer Choice: The Case Against Mandatory Labeling for GeneticallyModified Foods, by Gary E. Marchant, Guy a. Carineau, and Thomas P. Redick. aEIPress, 2010.

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Documents

productsafety&consumerprotection There Is No …...example, enacted a GMO labeling law in 2014 that requires the “clear and conspicuous” labeling of all food intended for human