A lenient standard of First Amendment review applies when government requires companies to disclose factual information for the public interest.
The Issue: In a case brought by the meat industry to challenge a federal regulation requiring country-of-origin labeling on meat products offered for sale in the United States, the D.C. Circuit sitting en banc called for supplemental briefing on the proper standard of First Amendment review. Almost all courts reviewing First Amendment challenges to laws requiring disclosure of factual information in commerce have for decades applied a lenient “reasonable relationship” standard set forth in a 1985 United States Supreme Court decision. The panel of the D.C. Circuit reviewing this meat-labeling case agreed. However, three recent D.C. Circuit panel decisions (including one striking down new graphic warning labels on cigarette packages) had gone the other way, suggesting that the lenient standard applies only when the purpose of the disclosure is to prevent consumer deception. In all other instances, according to those three cases, heightened (i.e., difficult to survive) scrutiny would apply. The court reheard the case en banc to resolve the disagreement within the D.C. Circuit as to the applicable level of scrutiny.
Why It Matters: Mandatory disclosures play a central role in federal, state, and local regulations protecting public health and safety, protecting the environment, and protecting consumers in a wide variety of contexts, including critical financial transactions. While some mandated disclosures are squarely aimed at preventing consumer deception, others primarily serve other purposes, such as safety, or informed and empowered individual decision-making. To subject every mandated disclosure either to a showing that it is necessary to prevent deception or to a stringent standard of review that few laws and regulations have passed in recent years could drastically upend regulatory regimes on which the public depends. Under threat would be regulations requiring nutritional labeling, securities disclosures, reports of releases of toxic substances or effluent pollutants, postings notifying workers of workplace hazards, and other warnings of exposure to hazardous substances, to name just a few. An adverse decision by the D.C. Circuit would be particularly consequential, because that is the forum in which federal regulations are challenged.
Public Good’s Contribution: Public Good filed a brief in the D.C. Circuit on behalf of a broad spectrum of public health, environmental, and consumer protection organizations, in order to illustrate how wide the impact of the D.C. Circuit decision could be. The brief focused principally on the far-reaching potential consequences of applying more stringent review to all required disclosures serving purposes other than countering deception. The brief explained the many important and until now uncontroversial regulations that could be threatened. In addition, the brief specifically reviewed the reasoning of the D.C. Circuit’s earlier (erroneous) decisions, challenging their readings of crucial Supreme Court precedents, and emphasizing how out of step those decisions were with every other court to have considered the issue.
Amici joining Public Good: Public Good’s brief was filed on behalf of itself and a host of leading national public health, consumer protection, and environmental organizations: Tobacco Control Legal Consortium, Campaign for Tobacco-Free Kids, Advocates for Environmental Human Rights, American Cancer Society Cancer Action Network, American Lung Association, American Public Health Association, Americans for Nonsmokers’ Rights, Center for Health, Environment & Justice, Center for Science in the Public Interest, Essential Information, National Association of Consumer Advocates, National Association of County and City Health Officials, National Association of Local Boards of Health, and Public Health Law Center.
Outcome: The Court of Appeals for the D.C. Circuit sitting en banc affirmed the constitutionality of the meat labeling requirements, holding 9-2 that the lenient “reasonable relationship” standard applies also to mandatory factual disclosures imposed in commercial contexts for other reasons besides prevention of consumer deception, joining all the other Circuits that had considered the question. The Court directly repudiated earlier D.C. Circuit decisions holding otherwise, including a recent disturbing decision by Judge Brown on cigarette warning labels.
760 F.3d 18 (D.C. Cir. July 29, 2014).