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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