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

31 Pages Posted: 13 May 2011  

Jessie Smith Nibley

University of Pennsylvania Law School - Student/Alumni/Adjunct

Date Written: May 5, 2011

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

Suggested Citation

Nibley, Jessie Smith, Commercial Freedom of Speech vs. Consumers' Right to Know: Milking the First Amendment for All It's Worth (May 5, 2011). Available at SSRN: https://ssrn.com/abstract=1839801 or http://dx.doi.org/10.2139/ssrn.1839801

Jessie Smith Nibley (Contact Author)

University of Pennsylvania Law School - Student/Alumni/Adjunct ( email )

Philadelphia, PA
United States

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