Emerging Constitutional Threats to Food Labeling Reform

Abstract:     
Much has been written about the American consumer’s untapped power to compel agriculture reform. Food safety and animal welfare advocates urge us to “vote with our wallets” to influence food production practices. This sounds good, but the federal food labeling regulatory scheme has left us frustratingly under-informed. State labeling laws and citizen consumer fraud suits have been thwarted by two powerful doctrinal weapons, federal preemption and free expression protection of commercial speech.

Under the Roberts Court’s expansion of corporate personhood, these doctrines have been reshaped and reapplied. One consequence is diminished state police power authority in the name of consumer protection; another consequence is a limitation on consumer tort litigation. Parts I and II introduce the relevant food labeling regulations and traditional doctrinal analyses in consumer protection conflicts. Using recent Supreme Court cases AT&T Mobility v. Concepcion, Wyeth v. Bruesewitz, PLIVA v. Mensing, National Meat Association v. Harris, and Milavetz, Gallop & Milavetz v. United States, Part III suggests that these doctrines are becoming more obstructive to food labeling reform. The conclusion suggests that Milavetz’s approach to compelled commercial speech is an outlier, ensuring that the compelled speech doctrine will remain fertile ground for labeling litigation.

Number of Pages in PDF File: 24

Keywords: food law, labeling, advertising, agriculture, animal welfare, animal law, pre-emption, commercial speech

Accepted Paper Series