Win Against Cynical Use of First Amendment to Trash Warning Labels

We have been looking at what’s happening in the Bay Area to municipal regulations that would require warning labels on soda and cell phones.  Industry claims that these warning labels violate their First Amendment rights by compelling speech.  The cities contend that they are factual and uncontroversial disclosures on commercial speech, and raise only trivial First Amendment issues, easily passing muster under the deferential review of Zauderer.

On September 21, the cities won a big victory, defeating industry’s attempt to enjoin cell phone radiation warnings in Berkeley.  Judge Chen of the Northern District of California expressed profound skepticism of industry’s First Amendment claims.  He sided with the D.C. Circuit and the First Circuit in holding that Zauderer permissive review of factual commercial speech disclosures applied even when there was no issue of deception.

He went even further.  The court suggested that when labels make clear that it’s the government talking, and not the company itself, the government should have even more leeway to communicate with consumers through product labels.  Specifically, using a “rational basis with bite” form of review, the Court held that the warning labels satisfied this test even if they were not purely “factual and uncontroversial” as Zauderer review requires. This government speech part of the decision furnished independent grounds for denying CTIA a preliminary injunction, which is a good thing, because I’m not sure that part holds up.  It borrows some of the same expansive understanding of government speech as was deployed in the Supreme Court’s Texas license plate decision (Walker v. Texas Division, Sons of Confederate Veterans, Inc.).

Even without this move, Judge Chen was right to find that the warning label survives Zauderer review.  CTIA needs to fight its battles in the city council, where it is at no structural disadvantage. As John Coates has written persuasively, corporate deployment of the First Amendment in commercial speech cases is inefficient and incentive-distorting, in addition to diluting First Amendment liberties and democratic legitimacy.

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Soda Industry Attacks Added Sugar Disclosure in Obesity Wars

Here come the First Amendment challenges to new governmental battles against “added sugars” in the war against obesity.  Last week, the FDA sought comment on its proposal to require nutritional labels to list “added sugars” – that is, sugars that have been added to the packaged food and are not naturally occurring. The goal is to help consumers reduce their intake of added sugars, which account for about 16% of the total calories in American diets.

Food industry interests claim that this violates their First Amendment rights against compelled speech.  The Washington Legal Foundation is the intellectual architect of this use of the First Amendment to strike down disclosure regulations, and has come out strongly against the “added sugar” disclosure.  If and when the FDA adopts final rules, we can expect the lawsuits to follow.  The NGO Free Speech for People  is taking the people’s side in these battles.

They will follow the example of the American Beverage Association, which on July 24 sued the City of San Francisco over its new ordinance (S.F. Health Code § 4203(a)) requiring sugar-sweetened beverage advertisers to display a warning on their ads:

“WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.  This is a message from the City and County of San Francisco.”

The Beverage Association claims that the mandate is unconstitutional because it requires vendors to convey “the City’s controversial and misleading opinion that certain beverages with added sugar are inherently hazardous, more harmful to consumers’ health than beverages with natural sugar or foods with added sugar, and uniquely responsible for increasing rates of obesity and diabetes.”  There are a few things to note here:

  1. The reason the BAA is focusing on the “controversialness” of the warning is that if the mandate is found to be controversial, it falls into a category of commercial disclosure that gets higher constitutional scrutiny under the Central Hudson intermediate test.  If it is deemed “purely factual and uncontroversial,” then the government gets the much more lenient rational basis review under Zauderer.  The question of what counts as “controversial” when the government mandates disclosure of facts that industry does not want to disclose or highlight is being contested in courts all over the country.  This is the knife’s edge of First Amendment litigation and it will end up in the Supreme Court before too long.
  2. In this litigation, the beverage industry is extending an argument made by the grocers in their action against Vermont’s GMO labeling mandate, currently on appeal in the 2nd Circuit. Vermont is requiring that vendors label processed food with genetically modified ingredients.  The Grocery Manufacturers Association claims that the requirement is controversial (and ultimately doomed by the First Amendment) because the federal government has determined that GMO’s are safe.  Therefore, by requiring GMO labeling, Vermont is siding with the controversial opinion that GMO is something to worry about.  (I’d note that the House has passed the Safe and Accurate Food Labeling Act of 2015, which would establish a voluntary federal GMO labelling program, so there is clearly federal interest in labeling).  The other way to look at it – indeed, the way the district court saw it – is that the controversy has to be within the four corners of the disclosure, and not around whether or not the disclosure is worthwhile.  In other words, if the disclosure had said:  “GMO ingredients are harmful”, that would be controversial. But “GMO ingredients exist” is not.

So how are the drinks guys taking it further than the food guys?  Well, the federal government HAS taken a stand on “added sugars.”  It has proposed that they be labeled because they are so clearly a contributor to obesity.  So to call the labeling of added sugars controversial requires an even greater act of chutzpah.

  1. The Beverage Association in its complaint makes the point that the government gets nutrition wrong.  It thought eggs were bad, but then changed its mind.  It thought excess salt was bad, but it turns out too-little salt is also bad.  It’s true.  Knowledge is contingent and partial, and consensus views change.  But the fact that facts change doesn’t make them controversial.  Otherwise, controversy is so endemic to speech as to have no meaning.

With this litigation, we now have live First Amendment litigation over conflicts minerals disclosure, GMO labeling, added sugar labeling, cell-phone radiation labeling, and pasturized milk labeling.   There will be more over E-cigarette labeling and campaign finance disclosure.  The costs of mandatory labeling may not justify these disclosure policies.  But striking them down on the grounds of corporate speech rights would be a terrible mistake.

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The Corporate Takeover of the First Amendment: All Eyes on the Bay Area

Look to the Bay Area for new battles on the commercial speech front. In these fights, you can really see how the conservative movement’s campaign against regulation is deploying the First Amendment. First, there’s the cellphone industry fight against Berkeley’s new requirement that mobile phone vendors warn against cell phone radiation. The warning reads:

“If you carry or use your phone in a pants or shirt pocket or tucked into a bra when the phone is ON and connected to a wireless network, you may exceed the federal guidelines for exposure to RF (radio frequency) radiation.”

One knows this a movement issue by who is representing CTIA, the wireless industry association: Ted Olson, former George W. Bush Solicitor General, famed Supreme Court litigator on the right, and oral advocate for Citizens United. To see him on the brief for a little district court case shows how much potential the movement sees in First Amendment attacks on regulation. If the case progresses, I will not be surprised to see an amicus brief filed by the Washington Legal Foundation, which has been very active in this kind of litigation, especially concerning the regulation of tobacco advertising and labelling.

Some call sugar the new tobacco in terms of its health effects. Enter a proposed bill across the Bay in San Francisco to require vendors of sugary soda and other drinks to warn consumers about the health hazards of consumption.

San Francisco supervisors recently voted unanimously to approve health warnings on ads for sugar-sweetened drinks (defined as drinks with more than 25 calories from sweeteners per 12 ounces — a 12-ounce can of regular Coke contains 140 calories, all from sugar). The ordinance still has to go through another reading at the Board of Supervisors. It would require the warning on print advertising within city limits — billboards, walls, taxis and buses. It would not apply to newspaper ads, or to ads on broadcast outlets or the Internet.

WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.

Beverage companies and vendors have promised to sue if the ordinance is adopted.

In both of these cases, the industry’s argument is that government has “conscripted” industry into relaying messages they do not support and which are not true, and therefore constitute unconstitutionally compelled commercial speech. The constitutional question often turns on what level of scrutiny the court will apply: whether it will treat the labels as “right to know” factual statements like nutrition or as ideological interventions into disputed matters. There’s also the issue of whether the federal government — whether the FCC or the FDA — has preempted the field by deciding not to require these warnings.

The same arguments are progressing in the Grocery Manufacturers Association v. Sorrell in Vermont. At the end of April, a federal district court judge allowed the grocers’ challenge to Vermont’s law requiring GMO labeling to go forward. The court issued a complex decision that gave each side some of what it wanted. The industry didn’t get its injunction, but the court refused to find the labeling law obviously constitutional. The two central provisions of the law — one that prohibits GMO foods from being labeled “natural” and one that requires disclosure of GMO ingredients — will both get more First Amendment scrutiny as the case moves forward.

What’s happening in these cases is that states and localities are stepping in where there’s been federal inaction. Sometimes it’s to protect public health, as in the case of San Francisco and Berkeley. Sometimes it’s to satisfy a broad constituency which includes organic industry advocates as well as consumer advocates. Both San Francisco and Berkeley efforts come in the face of failures to pass similar labeling laws at the state level. Indeed, Berkeley’s cell phone radiation warning is similar to one that San Francisco adopted and was struck down on free speech grounds.

These cases raise issues about what is factual and noncontroversial information — questions I’ve addressed in my article on tobacco labels. The litigation is part of a growing trend of First Amendment opportunism, whereby business entities for whom expression is only incidental (unlike the press, for example) seek to constitutionalize ordinary economic regulation. Amanda Shanor & Robert Post along with Leslie Kendrick have recently written about it.

Another, related, issue relates to federalism and judicial activism. Are we going to let states and localities effectuate their own interests in informing consumers that may be different from the federal interest? This angle may divide think the cell phone radiation from the food labeling cases because of the alignment of state/local and federal interests. When it comes to cell phone radiation, federal regulators (FCC) are interested in the very same thing that the Bay Area regulators care about: health. When it comes to GMO, federal regulators (FDA) are interested in health, but the interests represented by the state include ethical, religious, and environmental concerns that federal regulators disregard.

The issue of sugar warnings falls somewhere in between. Federal regulators are concerned about the obesity epidemic in relation to added sugar. That’s why they’ve proposed this new food label highlighting added sugars (which will almost certainly be challenged if and when it becomes final).

food label

But the feds have decided not to go farther and connect added sugar to health risks. The fact that San Francisco wants to provide this additional, undoubtedly true information to consumers does indeed burden businesses in its jurisdiction. But does it impermissibly burden their freedom of speech? To think that it does is an entirely new conception of corporate speech liberty that has never been part of First Amendment jurisprudence.

Another issue is what is the court’s role in parsing the meaning of the disclosure as opposed to the legislatures’ role? And which institution should determine whether the information is useful enough to consumers to warrant disclosure?

In a stunning recent draft of an article forthcoming in Constitutional Commentary, John C. Coates, IV analyzes the First Amendment claims that corporations are bringing at an accelerating pace and their success rate (better than 50%). Writing from a corporate law perspective, he considers this trend to be a “corporate takeover of the First Amendment” that injures the economy as well as the integrity of the democracy. When companies use the First Amendment to rid themselves of ordinary economic regulation, they “transfer power to set regulatory policy” from the state to the courts. One may agree or not with the importance or efficacy of a label or disclosure. But what First Amendment opportunism does is take the power to regulate “from ordinary individuals with identities and interests as voters, owners and employees, and transfer [it] to corporate bureaucrats pursuing narrowly framed goals with other people’s money. This is as radical a break from Anglo-American business and legal traditions as one could find in U.S. history.”


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In Open Letter to Google, 80 Internet Scholars Press for More Transparency on Right to Be Forgotten Compliance

One year ago, the European Court of Justice, in Google Spain v AEPD and Mario Costeja González, ordered search engines to respond to users’ requests to delist results on searches of their names that allegedly violate user privacy rights.   This has become known as the Right to Be Forgotten (RTBF) ruling.  Today, 80 technology scholars from five continents and 57 universities released an open letter to Google, urging it to provide more transparency, without compromising privacy.  Julia Powles and I organized the effort, finding that scholars are frustrated with the state of the data.

Around the world, some hate the decision and some love it.  Partisans debate should we or shouldn’t we have a RTBF?  What are the privacy benefits?  What are the information costs?  In the meantime, we know next to nothing about what’s happening on the ground.  Having fielded more than 250,000 requests, Google is in possession of the vast bulk of information about who wants information delisted and why.  So far, it has revealed its reasoning in only some 40 decisions.  Otherwise, there is very little public scrutiny of how the search engine strikes the balance between individual privacy and access to information concerns.

The argument for transparency is that:  (1) the public should be able to find out how digital platforms exercise their tremendous power over readily accessible information; and (2) implementation of the ruling will affect the future of the RTBF in Europe and elsewhere, and will more generally inform global efforts to accommodate privacy rights with other interests in data flows.

Without transparency, arguments risk descending into intractable tussles about ideology:  Pro-speech against pro-privacy.  It’s not either-or.  So far, the anecdotal RTBF decisions that Google has released give reason to hope that we can have both.  But we have no idea whether these decisions are representative and what the more liminal cases might look like., a service that submits delisting requests, has released some useful data about RTBF decisions based on the responses it receives from search engines.  But beyond the limitations of its sample size, its categories are not optimally illuminating.  It tells us, for example, that most requests are for “invasion of privacy.”  This covers a lot ground.  We don’t know if the alleged invasion concerns, for example, health information or a political opinion. tells us that Google’s most common reason for denying delisting (26%) is that the information “concerns your professional activity,” but this says little unless we know how many such requests there are, what percentage are denied, and therefore, whether we can conclude that these request are presumptively weak.

Nor can we glean much from the Data Protection Authorities.  The way the process is structured, only delisting denials can be appealed.  Those that reach a published decision are likely to be the edge cases and not broadly representative.  We understand that the DPAs are considering releasing more information, but we’re not there yet.  This call for more transparency is now quite ripe.  Google’s own Advisory Council on the RTBF in February 2015 recommended more transparency, as did the Article 29 Working Party in November 2014.

Only by looking at the balance that Google is striking – through aggregate statistics and anonymised cases — can we know if RTBF and other privacy protection policies being considered can deliver both adequate privacy and speech protection. The Open Letter’s hope seems also to be that more transparency will enable Google and other search engines to develop processes that engender public confidence in the “black box” operation that is search.

The Open Letter, though addressed to Google, is obviously directed at all search engines subject to the ruling.  It summarizes its request and rationale as follows:


What We SeekAggregate data about how Google is responding to the >250,000 requests to delist links thought to contravene data protection from name search results. We should know if the anecdotal evidence of Google’s process is representative:  What sort of information typically gets delisted (e.g., personal health) and what sort typically does not (e.g., about a public figure), in what proportions and in what countries? Why It’s ImportantGoogle and other search engines have been enlisted to make decisions about the proper balance between personal privacy and access to information. The vast majority of these decisions face no public scrutiny, though they shape public discourse.  What’s more, the values at work in this process will/should inform information policy around the world.  A fact-free debate about the RTBF is in no one’s interest. Why GoogleGoogle is not the only search engine, but no other private entity or Data Protection Authority has processed anywhere near the same number of requests (most have dealt with several hundred at most). Google has by far the best data on the kinds of requests being made, the most developed guidelines for handling them, and the most say in balancing informational privacy with access in search.



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