By Steven RosenfeldSome pro-business federal judges have shockingly approved a constitutional right for big companies to avoid revealing product dangers on labels.
In recent years, corporate lawyers representing industries whose products touch millions of American lives have stopped numerous government efforts to better inform the public about possible health risks with an eyebrow-raising legal strategy. They have asserted a constitutional right not to speak, or say more than they want on labels and advertising, and pro-business federal judges have agreed, rejecting the public’s right to know.
In cases involving manmade hormones fed to dairy cows, heart and lung disease caused by tobacco, the nutritional value of foods contributing to childhood and teenage obesity, and even radiation emitted by cell phones, the industries keep returning to court until a business-friendly judge or majority on an appeals court rules that the First Amendment includes the corporate right not to ‘speak’ if it could harm profits.
“They invoke the Amendment’s protection to accomplish exactly what the Amendment opposes,” wrote U.S. Court of Appeals Judge Pierre Leval, in a lengthy dissent in an early case in which his peers sided with industry and cited the First Amendment to overturn a state law labeling hormone-containing milk products. “The majority’s invocation of the First Amendment to invalidate a state law requiring disclosure of information consumers reasonably desire stands the Amendment on its ear.”
The labeling cases are not the only way corporations have been seeking to enlarge First Amendment speech rights outside the political arena.
This past June the Supreme Court ruled that drug makers’ constitutional speech rights included ‘selling' patient records, overturning a Vermont law that sought to keep the files private. Justice Stephen Breyer’s dissent said the Court was setting a dangerous precedent by allowing the First Amendment to be used to avoid reasonable government regulation.
“At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message,” he warned. “At worst, it reawakens Lochner’s pre-New Deal threat of substituting judicial for democratic decision making where ordinary economic regulation is at issue.”
Breyer’s reference to the Lochner Era was shorthand for what many right-wingers would like to see the judiciary do today—roll back government regulation. Lochner refers to the early 20th century when the Supreme Court reversed many workplace rights. It ended when the Court relented to allow the new deal to allow the New Deal's progressive reforms to take place.
Indeed, today’s corporate champions, such as Washington Post columnist George Will, are pining for an activist judiciary that prioritizes corporate rights above those of citizens. They see nothing wrong with extending the Constitution’s political freedoms given to individuals to modern profit-making corporations. As Will wrote this September in a piece attacking liberals, “So much for the idea that one of the Constitution’s primary purposes is the protection of individual rights against majority tyranny.”
Don’t Call It A Food Fight
The mainstream media calls it a Washington food fight. But that belittles the stakes.
One-third of American children and teens age 17 and younger are overweight or obese. The Federal Trade Commission, created a century ago is to protect consumers, has been studying the issue for years. It has found little consistency in the marketing and labeling of foods that are a mainstay of children and young adult diets. So the FTC, working with other federal agencies that studied the science behind what has been called an epidemic – The Department of Agriculture, Food and Drug Administration, and Centers for Disease Control and Prevention – last April announced voluntary product marketing guidelines for foods targeting youths, including limits on ingredients such as sugar, fat and salt. The FTC will soon issue a final report to Congress, including the voluntary guidelines.
This federal effort has prompted a lobbying stampede that continues to this day.
In July, some of the America’s largest food corporations, including Burger King and McDonald’s, announced their own marketing standards to defang, if not to derail, the FTC guidelines. Preemption is an old tactic in Washington. Their perspective reached prominent newspapers, such as at USAToday, which editorialized that the “industry standards aren’t bad.” In response, Josh Golin of Campaign for a Commercial-Free Childhood, wrote, “The brouhaha over the government proposal is the latest proof that asking corporations to work against their economic interests is futile.”
But then corporate lawyers added another twist.
The Washington Legal Foundation, a non-profit law firm that seeks to affirm and expand corporate rights, filed comments with the FTC claiming that the guidelines, even though voluntary, would be “a clear violation of First Amendment Rights.” Their accompanying press release said:
“Under Supreme Court case law, First Amendment protections kick in whenever government regulation “burdens” speech, not simply when the government adopts an outright prohibition on speech. WLF argued that the “burden” imposed by the Guidance’s “voluntary” advertising restrictions would be considerable, because many companies will be frightened by the unknown consequences of not complying.”
In other words, even a nudge to reveal more nutritional information was unacceptable.
“Are you really surprised?” replied Betsy Lordan, FTC spokeswoman, when asked to comment on the Foundation’s claim. “There is nothing new with companies trying to come up with reasons for not being regulated.”
But, strictly speaking, the federal agencies are not trying to regulate the food industry.
The FTC is issuing a year-end report to Congress, including voluntary ingredients and marketing guidelines. Congress will then decide what action, if any, to take. The FTC regularly issues guidelines for all kinds of industries, such as what is permissible with celebrity endorsements. Its goal is to deter commercial misrepresentation and fraud.
Nonetheless, the Washington Legal Foundation said this FTC-led food marketing effort exceeded its instructions from Congress because “instead of making recommendations to Congress, the Guidance makes recommendations directly to the food industry.” That criticism is to be expected from an anti-regulation think tank. But its lawyers also said that how a corporation labels its food products is constitutionally protected speech—as long as what is printed on the labels is true.
This is legally correct but a sly argument because companies do not have a legal duty to say everything they know about their products on their packaging and advertising. They can—and do—omit key details that could erode profits. And, as Judge Leval said in his dissent in the milk labeling case, government has the power to require companies to tell the public more about products if a public interest is served, such as protecting health.
“Freedom of speech is not an absolute right, particularly in the commercial context,” Leval wrote. It is “subject to regulation if the government has a substantial interest in regulating the speech, the regulation directly advances that interest, and is no more intrusive than necessary to accomplish its goal.”
The Washington Legal Foundation told the FTC that food corporations would be harmed if they could not freely label or advertise, or if they felt government pressure to include more nutritional information, such as how fatty, sugary or salty their products covered with cartoon wrappers truly were. Their FTC brief omits any mention of the millions of overweight American kids and teenagers, or the government’s legitimate interest in improving public health trends.
“Government action can constitute a ‘burden’ on speech even when it takes the form of ‘voluntary’ government speech standards,” WLF said. “The government seeks to change the dietary habits of children. There is no reason to believe that the only means of doing so is to suppress truthful speech.”
Tobacco and The Right Not To Speak
WLF’s arguments about corporate speech rights are not unique or limited to food labels.
Under its project entitled, “Criminalization of Free Enterprise – Business Civil Liberties Program,” it has filed briefs with the FDA opposing future nutritional labeling of food served in restaurants, required under the new federal health care reform law. It also filed briefs in federal appeals court arguing that shopkeepers in New York City should not be forced “to display signs conveying the city’s anti-smoking message, with which they disagree.” Their brief said signs, such as “Smoking Causes Lung Cancer,” accompanied by “one of three graphic, color images depicting the potential effects of tobacco use: a brain damaged by a stroke, decaying teeth and gums, or a diseased lung,” and a New York City seal, are “controversial, non-factual disclosures.”
This characterization—controversial and non-factual—is how the large tobacco firms described the accusations made by its critics in 1967, nearly four decades before the U.S. Department of Justice convicted them of racketeering by concealing science and other evidence that cigarettes severely harmed human health.
“The First Amendment protects not only the right to speak but also the right not to speak,” WLF’s website said, summarizing the New York City case. “Forcing someone to convey and associate with speech with which he disagrees violates the free speech protections of the U.S. Constitution… Many tobacco retailers object to the signs.”
Substitute ‘tobacco merchants’ for ‘milk producers’ in the following comment by Judge Leval in the 1996 Vermont milk labeling case, and consider how corporate lawyers have been pushing to not just protect profits, but also to expand constitutional protections.
“Notwithstanding their self-righteous references to free expression, the true objective of the milk producers is concealment. They do not wish consumers to know that their milk products were produced by use of rBST because there are consumers who, for various reasons, prefer to avoid rBST… The question is simply whether the First Amendment prohibits government from requiring disclosure of truthful relevant information to consumers.”
The Appeals Court majority, ruling against Vermont, disagreed, saying the labeling law was based on “consumer curiosity alone,” not science, because no federal agency had found rBST was unsafe. It said, “Strong consumer interest and the public’s ‘right to know’ … are insufficient to justify compromising protected constitutional speech.”
In other words, the public’s right-to-know is subordinate to private industry’s right to conceal information from consumers.
The federal court system is byzantine. Each federal circuit is a legal kingdom unto itself. Judges in one circuit can ignore what judges in other circuits do, until conflicting rulings work their way up to the Supreme Court – where they are settled until Congress passes new laws. (Or until those laws are challenged in lawsuits, restarting this cycle).
In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act, which, among other things, authorized the FDA to regulate warning labels on cigarette boxes. It was the biggest change in cigarette labels in 25 years. The agency published its rules describing the new warnings in June 2011. New text messages and photographic images would “bring Americans face to face with tobacco-related disease on every cigarette package and advertisement,” the FDA website said. Four of the five largest American tobacco companies sued the FDA in August in U.S. District Court in Washington, D.C.
In early November, U.S. District Judge Richard Leon ruled that the FDA’s regulations forcing the industry to put the same kind of graphic images as in the New York case on the outside of cigarette boxes would likely violate their constitutional speech rights. He ordered the mandatory labeling process stopped until the court fight was over, which could take years. But suspending the introduction of the FDA’s new labels was not Leon’s only gift to cigarette makers.
Leon also agreed with tobacco lawyers, finding the photographic images—not the printed warnings—would “confiscate the front and back portions of cigarette packaging” and went beyond “purely factual and uncontroversial information,” the legal standard that he cited for government-compelled speech such as warning labels. “The Court concludes that plaintiffs have demonstrated a substantial likelihood that they will prevail… and that they will suffer irreparable harm.”
Who is Harmed?
Courts often look for middle ground balancing interests—often frustrating advocates on either side of a fight. The question of who is being harmed—and harmed more, the public or private commercial interests—shows how citizens have lost ground to corporations as fervent federal judges have expanded and elevated corporate speech.
Judge Leon’s order suspended a political process that included state attorneys general from both political parties, Congress, the Justice Department under a Democratic and Republican president, and other federal court rulings from judges appointed by three presidents. None of that mattered to Leon. “I would remind the Government that even decisions from other district courts in our Circuit have no binding effect on this Court,” the activist judge wrote.
In Judge Leon’s discussion of the “harm that is more than simply irretrievable,” he said that the tobacco companies will have to spend “tens of millions of dollars” redesigning cigarette packaging to comply with the FDA rules. He said the FDA-required images would use too much space on cigarette boxes, which also was unconstitutional.
“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury,” he wrote, quoting the 1971 Supreme Court ruling that protected the New York Times and Washington Post from retaliation from the federal government after they published the Pentagon Papers, which detailed the military’s failures in the Vietnam War.
Think about that comparison: the tobacco companies’ rights to avoid putting photographs on cigarette box warning labels—after losing a major racketeering case and being ordered to change their labels by Congress—are comparable in Leon’s courtroom to the media’s right to print information about an unpopular war that killed 45,000 Americans by 1971.
An Uphill Fight
Another recent federal ruling where public-interest concerns have been thwarted concerns the first-in-the nation’s cell phone radiation labeling law.
In late October, U.S. District Judge William Alsup suspended a San Francisco ordinance requiring cell phone makers to include health warnings about radiation from the devices. These were to include an in-store poster and sticker, and fact-sheet given to buyers. The national trade association for the wireless industry sued to block the law, arguing that it violated their First Amendment rights to not speak about their products.
Like Judge Leval’s dissent in the Vermont milk labeling case, Judge Alsup found “that a government may impose, out of caution, at least some disclosure requirements based on nothing more than the possibility that an agent may (or may not) turn out to be harmful.” That statement appeared to be a public interest victory; but was not the end of the Court’s remarks. Judge Alsup found the fact-sheet was “misleading and must be corrected.”
He said the city’s fact-sheet could easily prompt buyers to “misunderstand this as more dangerous than it really is.” Like Judge Leon in the FDA tobacco case, he also rejected images that the city wanted to use in its poster. Further, Alsup ruled the poster was “not reasonably necessary and would unduly intrude on the retailers’ wall space.” The judge also said that the “sticker requirement is also unconstitutional” because “stickers will unduly intrude upon the retailers’ own message.”
Judge Alsup ordered the city to rewrite its fact sheet, which is to be submitted to his court for approval. Those revisions will undoubtedly be weaker than health officials wanted. But buried in the Court’s interim ruling was wording that was less militant than other activist judges who have recently ruled in corporate First Amendment rights.
“There really will be little irreparable injury in complying with the fact-sheet so long as the corrections are included to mitigate the nonfactual, misleading and alarmist tenor of the fact-sheet,” Alsup wrote. “The San Francisco program is not aimed at slowing sales. It is aimed at precautions for consumer use and presupposes that all sales will flow unabated. Industry profits will not sag.”
Taken alone, that wording was dangling a carrot before the city in a ruling where Alsup gave the wireless industry almost everything it wanted. But the CTIA-The Wireless Association, the national trade group that sued the city, responded by saying it still was not enough. “CTIA respectfully disagrees with the Court's determination,” its press release said, and “is considering its options regarding further proceedings.”
In other words, in yet another corporate speech versus the public interest fight, corporate lawyers—with virtually bottomless corporate checkbooks behind them—are betting they will find an even more business-friendly courtroom, completely censoring the public’s right to know any health information about radiation when buying a cell phone.
Steven Rosenfeld covers democracy issues for AlterNet for is author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).
Wednesday, December 14, 2011