WLF Legal Backgrounder
"Voluntary" Speech Principles: High Court Offers Food For Thought On Advertising Regulatory Initiative
By John P. Feldman, Michael L. Sacks, and Keri Bruce
August 5, 2011 (Vol. 26 No. 17)
In late April of this year, the Federal Trade Commission (FTC), together with the Food and Drug Administration, the Centers for Disease Control and Prevention, and the U.S. Department of Agriculture, released "Food for Thought: Interagency Working Group Proposal on Food Marketing to Children." Presented to the public for comments in advance of submission to Congress, which ordered the report, the proposal calls for "voluntary" principles that restrict the types of food, times of day, kinds of media, and specific information advertisers may or may not utilize when engaging in commercial speech. These principles would apply to both children and adolescents and would essentially prohibit advertising in any medium for many of the most popular food and beverages. Scores of interested parties submitted comments, and many focus on the questionable constitutionality of the "voluntary" principles that the Interagency Working Group is proposing to promulgate.
David Vladeck, the FTC Director of the Bureau of Consumer Protection, has argued that the Interagency Working Group proposal cannot violate the First Amendment because it's "voluntary." But, he offers no citations and no real constitutional argument other than to say, "A report is not a law, a regulation, or an order, and it can't be enforced. While we hope companies voluntarily choose to adopt the principles (when finalized), there's no legal consequence if they don't. So there's no effect on their free speech rights." So, in the face of this articulated "hope," companies are expected to treat principles promulgated by the very agencies that regulate food and food advertising as optional? Not likely.
Professor Martin H. Redish of Northwestern University School of Law released a white paper entitled, "Childhood Obesity, Advertising and the First Amendment." In the white paper, commissioned by General Mills, Professor Redish argued that the proposed regulations, despite being labeled "voluntary," "unambiguously contravene the First Amendment's protection of commercial speech as currently established by clear Supreme Court doctrine." According to Professor Redish,
It is impossible to ignore the coercive effect imposed by these regulations, as well as their starkly restrictive impact on speech. The regulations will impose costly and impossible choices on those subject to the regulation. Food companies will be forced to choose between, on the one hand, abandoning marketing efforts central to the success of their businesses and, on the other hand, facing a parade of wholly untenable consequences, including: (i) risking even harsher regulation which will almost inevitably follow absent compliance with these regulations; (ii) risking enforcement actions; (iii) garnering the opprobrium of the agencies that have the greatest power over virtually every aspect of the food companies' businesses; (iv) subjecting themselves to continued, and more intrusive, investigations relating to advertising practices; (v) opening themselves up to class action lawsuits (which, in the current environment, are essentially a certainty in the event of noncompliance); and (vi) causing disastrous reputational consequences for food companies who choose to continue to market products that the government has formally deemed to be unworthy for consumption. This sort of "choice" is inherently coercive and thus not really a choice at all.1
So proving that such an inherently coercive governmental program is subject to justiciable constitutional challenges, Professor Redish put forward several reasons why the proposed regulations violate the First Amendment's protection of commercial speech. To start, the regulations possess "no requirement that the advertisements in question first be found false or misleading" in order to be banned under the Interagency Working Group's proposal. By disregarding the distinction between true and false or misleading commercial speech, the proposed regulations contravene the principle, backed by three and a half decades of Supreme Court precedent, that "the First Amendment prohibits government from suppressing truthful advertising for lawful products in an effort to keep consumers ignorant about their economic choices."
Even under the less categorical Central Hudson test, however, the proposed regulations still falter. The test requires the government seeking to restrict truthful commercial speech to prove that the regulation directly and materially (that is, beyond mere speculation) advances a substantial governmental interest, and is "no more extensive than necessary to serve" that interest. In a detailed analysis, Professor Redish found that the proposed regulations both "fail materially to advance the government's interest in reducing childhood obesity" and are "far more extensive than necessary to serve that interest." The proposed regulations fail the materiality requirement because,
(1) Strong evidence exists to support the proposition that reductions in exercise by children bears significant responsibility for the recent increase in childhood obesity; thus, even the total success of the proposed ban on advertising would leave substantial portions of the childhood obesity problem unaffected. (2) Whether or not reduced exercise is the primary cause, no persuasive evidentiary basis exists to support the view that advertising by the food industry aimed at children has contributed significantly to the increase in childhood obesity; thus, suppression of such expression would fail to materially advance the asserted governmental interest. (3) Ready-to-eat cereals represent the largest share of food advertised to children and therefore would be the category of products most affected by the regulations; yet the proposed regulatory restriction on the advertising of these cereals would fail miserably in advancing the interest in reducing childhood obesity, for the simple reason that cereals do not contribute to the obesity problem. Indeed, overwhelming evidence establishes that children who eat ready-to-eat cereals more often have far healthier body weights than those who eat cereal less often. Thus, far from materially advancing a government interest, banning the advertising of cereal would work directly against the governmental interest in reducing obesity. In and of itself, this fact sounds the death knell for the proposed regulations under Central Hudson's [materiality requirement].
In the unlikely event that this argument fails, then Professor Redish offers two reasons why the proposed regulations are far more extensive than necessary to serve the interest in reducing childhood obesity. First, "numerous less-invasive means of advancing the goal" are available, such as "increased provision of health care services," "improvement of nutritional value of school meals," and "increasing physical activity in schools while simultaneously encouraging a general increase in childhood physical activity." Second, the proposed regulations, which "extend their reach to advertising on shows where up to 80% or more of the audience is made up of adults" and sweep up children's products marketed to parents, "unduly impact the First Amendment right of commercial advertisers to communicate with adults."
Only three weeks after Professor Redish issued his white paper establishing the unconstitutionality of the Interagency Working Group's proposed regulations, the Supreme Court handed down two important decisions--Sorrell v. IMS Health and Brown v. Entertainment Merchants Association--that buttress advertisers' right to speak. The rulings cast doubt on marketing restrictions urged by would-be governmental regulators seeking to combat childhood obesity without any evidence that draws the causal link between watching advertising for food and becoming obese. Taken together, Sorrell and Brown support commercial speech rights by reaffirming heightened protection for truthful advertising, endorsing the efficacy of self-regulation, and refusing to rubber-stamp any governmental action that restricts protected speech without a convincing, scientific basis--even if protection of children is a stated goal.
In Sorrell, the Court struck down Vermont's Prescription Confidentiality Law, which banned pharmacies' sale, and drug companies' use, of prescriber-identifying information for marketing purposes without the prescriber's consent. Because the law imposed content- and speaker-based burdens on protected speech--namely, marketing--the Court, in a six-member majority opinion by Justice Anthony M. Kennedy, applied heightened scrutiny. In the commercial speech context, the First Amendment tolerates only incidental restrictions. For the majority, Vermont's law was presumed to be constitutionally suspect because it did more than incidentally abridge commercial speech. In addition to imposing content-and speaker-based burdens, the law also subjected speakers to "restraints on the way in which the information might be used or disseminated." Indeed, "[c]ommercial speech," Kennedy wrote, "is no exception" to the principle that the "First Amendment requires heightened scrutiny whenever the government creates a regulation of speech because of disagreement with the message it conveys."
Under heightened scrutiny, Vermont could not convince the Court that its law "directly advances a substantial governmental interest and that the measure is drawn to achieve that interest." According to Vermont, the law protected physicians' privacy in their prescription decisions and advances the state's important public policy goals by lowering the costs of medical services and promoting public health. The majority found these goals, however laudable, to be ill-served by the law itself. The privacy argument was undermined by the fact that under the law "pharmacies may share prescriber-identifying information with anyone for any reason save one: They must not allow the information to be used for marketing." And the nobility of public policy goals could not change the rule that "the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, non-misleading advertisements that contain impressive endorsements or catchy jingles." "That the State," the Court goes on, "finds expression too persuasive does not permit it to quiet the speech or to burden its messengers."
The Sorrell majority's decision strengthens advertisers' speech rights not only by subjecting infringements on those rights to heightened scrutiny, but also by trusting individuals to make commercial decisions in their best interests. Specifically, the Court refused to accept that the ban on targeted marketing to doctors was truly warranted when "[p]hysicians can, and often do, simply decline to meet with...[marketers] who use prescriber-identifying information." This principle--the individual that the law purportedly protects is perfectly capable of protecting him- or herself--is what animates industry self-regulation. And it is under this principle that Brown, a case involving the marketing to minors, intersects with Sorrell.
In Brown, the Court held that California's ban on the sale of violent video games to minors violated the First Amendment. The majority opinion, written by Justice Antonin Scalia for five members of the Court's 7-2 majority, rested largely on the fact that depictions of violence--unlike obscenity, defamation, fighting words, or incitement--have traditionally enjoyed First Amendment protection. Consequently, the majority subjected California's law to strict scrutiny, and found the restriction to be neither narrowly tailored nor advancing any compelling state interest.
The Court determined that the video game industry's self-regulation rendered non-compelling California's stated interest in helping parents protect their children from depictions of violence. As Justice Scalia wrote, the Entertainment Software Ratings Board's (ESRB) system "does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home." Accordingly, the Court held that California had no compelling interest in supplementing ESRB's successful system so to cover "the modest gap in concerned-parents' control" over the small percentage of minors who would inevitably get around any restrictions, whether legal or self-regulatory.
Scalia, in his controlling five-member majority opinion, rejected the argument that California had an interest in combating the harmful effects that some studies found violent video games have on children's development. The studies, stated the majority, did not "prove that violent video games cause minors to act aggressively" ... but "show at best some correlation between exposure to violent entertainment ... and children's feeling more aggressive or making louder noises in the few minutes after playing a violent game." Even when assuming a causal connection on children's behavior, the Court stated that those effects were about the same as those of other media, such as television cartoons like Bugs Bunny, non-violent video games, and images of guns.
When read together, Sorrell and Brown stand for the proposition that government-imposed restrictions on speech that are not backed up by convincing evidence that connects the speech to the ill that the Government seeks to regulate, even if that speech is commercial and directed toward minors, will be met with considerable resistance at the Supreme Court. This is a Court in which six members have endorsed rigorous First Amendment scrutiny of restrictions on truthful and non-misleading commercial speech. Majorities in both cases have supported successful self-regulation as superior to governmental intrusion on industry. And five members in Brown rejected California's child-protection interest as unfounded without definitive proof that the speech at issue actually caused the harm asserted.
These cases have direct relevance to the current debate regarding childhood obesity. The advertising community must hold fast to its First Amendment rights as the Interagency Working Group's Proposal, and other initiatives like it, seek to address social issues by suppressing or compelling speech. Governmentally proposed restrictions, "voluntary" or not, strike at the First Amendment's core purpose: to protect those speakers who seek to inform and persuade listeners in the "marketplace of ideas." The last few weeks of the Supreme Court's most recent term have highlighted an appreciation by this Court for the constitutional principles that advertisers hold most dear, and that, at least, should bolster the industry's courage in the area of children's advertising.
John P. Feldman, is a partner, and Michael L. Sacks is an associate, both in the Washington, D.C. office of the law firm Reed Smith LLP; Keri Bruce is an associate in the firm's New York City office.
1. Martin H. Redish, Childhood Obesity, Advertising and the First Amendment: A White Paper (2011), available at http://www.gmaonline.org/file-manager/Health_Nutrition/childhood_advertising__firstamendment.pdf.