Commercial Freedom of Speech vs. Consumers' Right to Know: Milking the First Amendment for All It's Worth

Abstract

The FDA's antagonism toward mandatory disclosure by food producers of information consumers want has left states to institute their own laws and policies to ensure consumers can make purchasing decisions based on all of the facts they deem important. However, these state laws face First Amendment challenges by food manufacturers who fear that consumers may shun their products if given too much information about certain foods and how they are produced. The First Amendment interests of consumers and food producers are thus at odds and must be balanced. This paper examines the approaches of two Circuits addressing state labeling regimes for recombinant bovine somatotropin (rBST) and concludes that, although rational basis review (rather than intermediate scrutiny under Central Hudson) is the appropriate standard of scrutiny, consumers' right to know satisfies either test and is therefore sufficient to trump food producers' First Amendment right not to disclose information about their products.

Keywords: First Amendment, Commercial Speech, FDA, Food and Drug Administration, rBST, rBGH, Milk, Genetically Engineered