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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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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.