Ellen Goodman, professor at Rutgers School of Law-Camden, studies the First Amendment aspects of product labeling and other disclosure requirements. Goodman, co-director of the Rutgers Institute for Information Policy and Law, has written about tobacco warning labels and is currently examining GMO and other food labels.
Last year she served as a senior visiting fellow at the London School of Economics. Previously, she was a distinguished visiting scholar at the FCC and helped in the production of a pathbreaking report "The Information Needs of Communities." A Ford Foundation grantee conducting research on media policy principles for a networked age, Goodman has served as an expert before the National Academies of Science and Technology, the Brookings Institution and the Aspen Institute. She is working with the New Jersey News Commons and the Dodge Foundation to provide support for new digital journalism ventures in New Jersey and with the Aspen Institute on a report on the policy implications of the "Internet of Things."
The issue of food labeling seems to have become an important part of the fight against obesity. What are the new developments?
Goodman: The FDA has issued new rules that will implement nationwide what some cities – most notably New York – have already required. Many restaurant and take-out menus as well as vending machines will have to list calories. Also, the FDA is considering requiring packaged food manufacturers to list “added sugar” separately from sugar so that people can tell how much of the sugar is not naturally occurring, but has been added to the product.
What is the effect of these labels?
Goodman: Look, there are lots of questions about whether these kinds of labels are effective in informing consumers and in changing behavior. The evidence is equivocal. On the one hand, calories “purchased” at Starbucks fell considerably after the chain decided voluntarily to list calories on its products. On the other hand, there is also evidence that large portions of the population do not read or cannot understand nutrition labels. Whether delivering the information more clearly and more graphically will help is an open question. What interests me is not so much the public health question of whether these disclosures are prudent, but the free speech question of whether they are constitutional.
We’ve had product labels forever. What is the claim that they’re unconstitutional?
Goodman: When New York City mandated calorie disclosures, restaurants claimed that this was compelled speech and violated their First Amendment rights. The case went to the Second Circuit Court of Appeals and they lost 2-1. But their claim was taken seriously and similar arguments have prevailed in other courts. The basic argument is that government has a lot of latitude to compel speech in order to ensure that consumers are not deceived. It has less latitude when the disclosures are for some other purpose – such as providing consumers with additional information. This is especially true when the information is either itself controversial or enters the government into a controversy. So, for example, the same court overturned the effort of Vermont to label milk that had hormones added to it, holding that even though the disclosure was purely factual, the consumer interest in knowing about hormones was not strong enough to justify the mandate.
Where is the law heading on this question of the rights of companies against government labels?
Goodman: Where it’s heading is to the Supreme Court. This area of the law is rooted in a 1985 Supreme Court decision about the First Amendment status of disclosure mandates. That case, called Zauderer, is causing a lot of confusion and dissention in the courts. In the last two years, the D.C. Circuit has held that what that case meant is that government could only get a deferential standard of review for labels designed to prevent consumer deception. Then it reversed course and said that, actually, other government purposes were also okay. It said this in the context of a ruling upholding Department of Agriculture meat place-of-origin labeling requirements. In the meantime, other courts have understood Zauderer to be less permissive. Another influence on this area of the law is the trend in commercial speech cases more generally. Commercial speech and commercial speakers are gaining more First Amendment protection in the courts. So labeling that once seemed perfectly constitutional is now being questioned as an abridgement of commercial speech.
What’s new in this area besides the FDA nutritional labels?
Goodman: There were several ballot propositions and referenda in the last election to require labeling of GMO ingredients in food. They narrowly lost. Had they been passed, we would have seen litigation around that issue. Vermont has passed a law to require GMO labeling to take effect next year. The grocery trade association has sued. There is another constitutional challenge to a law in Florida that regulates the labeling of milk. These and other cases are pushing the frontiers of commercial speech law and the meaning of the Zauderer case I mentioned. Where they land will influence how we use disclosure requirements to effectuate policy outcomes, whether it’s healthier diets, domestic production, energy efficiency, green production, and so on.
Do these cases have broader implications beyond product labels?
Goodman: I think that you have to understand this particular area of the law in the context of the movements in corporate personhood: think Citizens United (corporations are people for purposes of campaign speech) and Hobby Lobby (corporations are people for purposes of religious liberty). In many cases, government labeling and disclosure requirements may be poor policy in terms of costs and benefits. That doesn’t mean that they are unconstitutional. I worry about treating compelled speech in the commercial context the same as compelled speech for individuals. I think what spooked the D.C. Circuit in the meat labeling context I mentioned is that constitutionalizing this area of the law would call into question “Made in the USA” labels, nutrition labels, fiber labels and many other innocuous labeling requirements we take for granted. If we treat commercial speech as fully protected, we risk constitutionalizing advertising, securities, pharmaceutical, consumer protection and other areas where disclosure is required.