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.