First Amendment, Consumer Protection, Commercial Speech
The Supreme Court has recognized First Amendment protection for “commercial speech” since 1975. Commercial speech doctrine seeks to balance advertiser interest in speech, consumer interest in information, and society’s interest that “economic decisions in the aggregate be intelligent and well-informed.” Regulations and compulsory disclosures of commercial speech play a part in ensuring consumers are well-informed. Yet, there continues to be consumer confusion surrounding the commercial speech doctrine’s application to food labeling. Lawmakers continue to pass regulations that are unnecessary or nonsensical. Regulators continue to enforce these regulations, even if the state interest in doing so is minimal or non-existent. There are circuit splits concerning the commercial speech doctrine, and it is unlikely the courts will find a uniform approach to food labeling regulation. Therefore, legislators and regulators should take the lead in imposing and enforcing food labeling regulations more uniformly.
With concern to consumer confusion, this Note proposes that legislators should first look to how terms are understood by consumers rather than by how the State defines them. If there is no common understanding, the government should conduct surveys to determine if there is actual confusion over the term before engaging in enforcement. Outside of consumer confusion, legislators should focus on consumer health when deciding to implement a regulation. They should determine if the food product in question either contributes a harm or reduces a benefit to consumer health. Once this determination is made, legislators should address the issue through a commercial speech restriction or a compelled disclosure. In both cases, they must use public health data to ensure that their regulation advances the interest of protecting health without violating the First Amendment rights of the producer they are targeting. This Note advances this methodology as a means of preventing unnecessary and costly litigation. Further, it may promote more uniformity in how the commercial speech doctrine is applied.
William Cusack, Trouble With Names: Commercial Speech and a New Approach to Food Product Label Regulation, 17 Duke Journal of Constitutional Law & Public Policy Sidebar 119-146 (2021)