Cross-posted by at On the Docket

For cause-oriented crusaders in and outside of government, speech has long been a favorite means to an end.  Not a particularly effective means, but a means nonetheless.  Policy-makers can point to speech restrictions as proof that they are trying to “do something” about a perceived problem.  As free enterprise advocates, we are most troubled by those who seek limits on commercial speech as a proxy for addressing supposedly negative consumer conduct or “disfavored” products.  Commercial speech is quickly becoming the anointed fall guy in the national battle against obesity, a battle where, paradoxically, more information is one of consumers’ key weapons.  But that information, according to activists, must come from the government or be tightly controlled by the government.  Such nanny policy preferences, and a desire to advance broader agendas, are on display in activists’ opposition to voluntary efforts by the food industry to provide information on the front of food packages.

The front-of-package (FOP) labeling initiative, announced late last month by the grocery and food marketing trade groups, creates a uniform, distinctly placed image which must include calories, sugar, sodium, and saturated fats per serving.  It also allows two “nutrients to encourage” (such as fiber or vitamins).  Because the information is based on the government mandated nutrition label, it is verifiably truthful.  Facts plus national uniformity and clarity all adds up to positive change for everyone other than government and private activists, who cry obstruction and obfuscation.

Critics argue that the food industry is obstructing or trying to preempt long-pending Food and Drug Administration (FDA) front-of-package rules.  On its face, this criticism is absurd: if government wants to regulate, it can and will do so regardless of private actions.  But it also reflects activists’ instinctive distaste for self-regulation.  Such voluntary action can adapt and advance far more quickly than can government.  While FDA standards have been languishing for years, food companies have stepped up.  As 33-year veteran of the Federal Trade Commission, C. Lee Peeler of the Better Business Bureau’s National Advertising Review Council has written:

Self-regulation is inherently more agile and flexible than government rules which often adopt a “one-size-fits-all” approach to dealing with problems that may vary significantly from company to company and from industry to industry.

Activists also accuse the food and marketing industries of fomenting consumer confusion.  As former FDA Commissioner David Kessler told The Washington Post, “The failure of industry to come together with the administration and public health groups will only add to the existing confusion about what we should be eating.”  Or consider food industry gadfly Kelly Brownell of Yale, telling USA Today, “Just putting those numbers of the front packages could be confusing . . . People may not know how to use these numbers in the context of a day’s diet.”

In the world of Dr. Kessler, Professor Brownell, and other critics, when truthful nutritional information is added to packaged food products which contain (gasp!) positive and encouraging promotional wording and imagery, the packaging as a whole becomes misleading. Such an argument is vital to activists’ plans because First Amendment commercial speech jurisprudence holds that false or misleading promotional materials do not merit constitutional protection.

Would such a facile claim be enough to uphold bans or limits on front-of-package labeling?  It’s unlikely that even the most sympathetic judge would embrace this argument, thus moving a judicial analysis of labeling restrictions to such issues as whether the anti-speech measure advances a legitimate government interest, whether the measure is more extensive than necessary to advance that interest, and whether there are alternatives to speech restrictions.  As Albany Law School Professor Timothy D. Lytton wrote persuasively last year in Public Health Nutrition, government has an interest in encouraging people to eat whole or minimally processed foods, but “The First Amendment requires that . . . less restrictive means [be used] to achieve these important goals” than limits on truthful speech.   It’s no wonder, then, that activist Marion Nestle is encouraging “public interest lawyers” to pursue “reinterpretation and change” the way courts apply the First Amendment to industry speech.

So if what industry has offered for its packages is unacceptably misleading, what do proponents of government-mandated FOP labeling prefer?   Something that FDA is unlikely to embrace: Scarlett Letter-like green, red, and yellow symbols to indicate foods’ “healthiness.”  Special interest groups like CSPI have been urging this measure for years, but forcing food companies to put such stigmatizing images on their packages almost certainly runs afoul of the First Amendment.  What kind of message does that communicate to consumers? – Don’t ever eat this? Don’t eat this on a regular basis? Don’t eat this without other foods to created a “balanced meal?”

As noted at the outset, limits on speech are rarely an effective stand-in for preventing or reducing undesired conduct.  So when mandated FOP labels or gaudy stop-sign images don’t curb our national appetite, what’s next?  Don’t be surprised if we start hearing whispers of the need for “plain packaging” of processed foods: packages with the name of the product, the maker’s name, nutritional information, and nothing else.  Activists are trying out this profoundly anti-business policy idea on other disfavored products overseas.  Could food be next?