What standard of First Amendment review applies to compelled disclosures of factual information that the government requires for reasons other than consumer deception?


Two panels of the DC Circuit in recent years (including one striking down new graphic warning labels on cigarette packages) have caused great concern by holding that rational basis review under Zauderer v. Office of Disciplinary Affairs applies to required factual disclosures (“Contains formaldehyde”; “Ingredients: Water, Sugar, …”; “May cause cancer in rats”) only when the purpose of the disclosure is to prevent consumer deception. In all other instances, those panels would apply heightened (i.e., difficult to survive) review under the Central Hudson test. The panel opinion here, however, disagreed, holding that other reasons (for example, in this case, permitting consumers to exercise a preference for American beef, or to act on their concerns about food safety abroad) are equally legitimate and should trigger no more than rational basis scrutiny.  The First and Second Circuits agree with the panel here; the earlier DC Circuit opinions were the first in the country to go the other way. The Supreme Court has never decided the issue. Because of the split now present in the DC Circuit, the en banc court called for supplemental briefing about the applicable standard of First Amendment review. 

On April 21, the Tobacco Control Legal Consortium, joined by fifteen national public health, consumer advocate and environmental organizations, filed an amicus brief at the U.S. District Court, D.C., supporting the U.S.D.A. in this case. Our brief details the far-reaching potential consequences of narrowing the scope of Zauderer and explains the many important and heretofore uncontroversial regulations that could be threatened (such as tobacco product graphic warnings requirements, as well as any other disclosures of factual information for public health / consumer protection educational purposes). It emphasizes how at odds the narrow reading of Zauderer is with the holdings of every other court to have considered the issue and with the reasoning of Zauderer itself. It also specifically reviews the reasoning of the D.C. Circuit’s earlier holdings going the wrong way, challenging the misreadings in those cases of a number of Supreme Court precedents. 


On July 29, 2014, the en banc U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of the U.S. Department of Agriculture’s rules requiring country-of-origin labeling on meat products. The court held 9-2 that mandatory disclosures required for educational purposes should be evaluated under the test set forth by Zauderer v. Office of Disciplinary Counsel, rather than the more stringent test required under Central Hudson.

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