Friday, April 4, 2014

En Banc DC Circuit to Hear First Amendment Challenge to Mandatory Labeling of Meat Regulation

In an order today, the District of Columbia Circuit Court that American Meat Institute v. United States Dep't of Agriculture will be heard en banc.  Animated_cow

Recall that in its opinion last week, a panel of the DC Circuit upheld a requirement mandating the labeling of meat by country of origin.  Resolving the First Amendment challenge involves a construction of  Zauderer v. Office of Disciplinary Counsel (1985), and the panel itself suggested that the "full court hear this case en banc to resolve for the circuit whether, under Zauderer, government interests in addition to correcting deception can sustain a commercial speech mandate that compels firms to disclose purely factual and non-controversial information."

Here's the issue as the court's order for simultaneous supplemental briefs phrases it:

Whether, under the First Amendment, judicial review of mandatory disclosure of "purely factual and uncontroversial" commercial information, compelled for reasons other than preventing deception, can properly proceed under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), or whether such compelled disclosure is subject to review under Central Hudson Gas & Electric v. PSC of New York, 447 U.S. 56 (1980).

The briefs are due April 21. 


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Even though commercial speech is generally afforded less First Amendment protection than “political” expression, the meat labeling regulation that the Department of Agriculture adopted should meet either the Central Hudson test or the Zauderer disclosure requirement. First, Congress granted the agency the authority to promulgate these types of regulations under the statute.
Second, Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n of New York, 447 U.S. 557, 566 (1980) gave us the test that has been widely applied for commercial speech: “In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 340 (1986), clarified the Central Hudson holding:” Under Central Hudson, commercial speech receives a limited form of First Amendment protection so long as it concerns a lawful activity and is not misleading or fraudulent. Once it is determined that the First Amendment applies to the particular kind of commercial speech at issue, then the speech may be restricted only if the government's interest in doing so is substantial, the restrictions directly advance the government's asserted interest, and the restrictions are no more extensive than necessary to serve that interest.”
Even if the meat producers would claim that their current labels are not misleading or fraudulent and thus there is no need to proceed to the Zauderer disclosure analysis, the regulation could still withstand the Central Hudson test.
Here, the asserted government interest is substantial because consumers must be aware about the provenance of their food, analogous to caloric value and nutritional information. Thus, there is a valid and substantial concern about public health and safety in this case. By merely asking to place an additional sentence, which would say “Born in X, Raised and Slaughtered in the United States” on a product label, the regulation directly advances the governmental interest in maintaining the health and safety of food products delivered to consumers. Finally, the regulation is not more extensive than is necessary to serve that interest.

Posted by: Tatyana Segal | Apr 5, 2014 8:33:13 AM

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