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71 Food & Drug L.J. 519 (2016)
First Amendment Limits on Compulsory Labeling

handle is hein.journals/foodlj71 and id is 535 raw text is: First Amendment Limits on Compulsory Labeling NIGEL BARRELLA ABSTRACT Government-mandated labeling requirements have a long history, and are used extensively by FDA in regulating the industries under its jurisdiction. All such requirements can be characterized as a form of compelled speech, opening the door to First Amendment challenges. And some of these challenges, depending on the nature of the labeling requirement, have even been successful. Under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, regulations that compel disclosure of information will, in many cases, merit only very limited First Amendment scrutiny-less, even, than most other regulations of commercial speech, which receive a type of intermediate scrutiny. The labeling requirement that can best avoid or overcome a First Amendment challenge, therefore, will follow the example of the regulation described in Zauderer. For example, Zauderer applied its lower scrutiny by noting that the compelled speech at issue was a disclosure of purely factual and uncontroversial information. Conversely, a successful First Amendment challenge to a labeling requirement will often involve an argument that the labeling requirement is outside the scope of what the Zauderer Court contemplated: so, for example, one may argue that a compelled disclosure is either not factual or else controversial, putting it beyond Zauderer's reach. After briefly reviewing the major Supreme Court cases that establish the levels of scrutiny for commercial speech and compelled disclosures, the paper will discuss how the various elements of Zauderer have been analyzed by several lower courts, and how some courts have distinguished Zauderer in the context of labeling and other mandatory disclosure laws. In particular, the paper will focus on cases involving First Amendment challenges to food, tobacco, and drug labeling requirements-some successful, some not, and some ongoing-including cases challenging FDA, USDA, and state-level labeling requirements. .Nigel Barrella is a solo practitioner in Washington, D.C. He would like to thank his fellow panelists at the FDLI Constitutional Challenges Symposium, Sabrina Adler, Stuart Pape, Bert Rein, and Allison Zieve, for a lively debate and their valuable feedback, and would also like to thank the many symposium participants for the same. Special thanks also to Peter Barton Hutt for his encouragement and contagious enthusiasm for scholarship in this field. 519

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