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The Health of Children and Consumers Is Threatened by Conservative Push for Corporate Speech Rights

Some pro-business federal judges have shockingly approved a constitutional right for big companies to avoid revealing product dangers on labels.

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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.”