In the four decades since the Supreme Court first held that the First Amendment provides some protection to commercial speech,1 it has struggled to explain how far that protection extends.2 While an intermediate scrutiny test introduced in Central Hudson Gas & Electric Corp. v. Public Service Commission3 provides a general, if highly flexible, framework for evaluating restrictions on commercial speech,4 it remains unclear how mandated disclosures should be assessed.5 In Zauderer v. Office of Disciplinary Counsel,6 the Court found it unnecessary to apply the full degree of Central Hudson scrutiny to a “purely factual and uncontroversial”7 disclosure required in order to correct an otherwise misleading advertisement.8 The D.C. Circuit declined to apply the “less exacting”9 Zauderer standard to disclosures mandated for purposes other than preventing consumer deception in R.J. Reynolds Tobacco Co. v. FDA,10 which struck down a rule requiring graphic warning labels on cigarette packages,11 and in National Ass’n of Manufacturers v. SEC12 (NAM), which struck down a rule requiring firms using “conflict minerals” to report links to the Congo.13
Recently, in American Meat Institute v. USDA14 (AMI), the en banc D.C. Circuit diverged from the trajectory set by those two cases and held that Zauderer applies to “factual and uncontroversial” disclosures mandated by the government for any purpose.15 AMI marks a welcome doctrinal departure from R.J. Reynolds and NAM. Factual and uncontroversial disclosure mandates are consistent with the principles underlying commercial speech jurisprudence, and the AMI majority was correct to hold that all such mandates should receive the more lenient review of Zauderer. However, AMI may not signal a significant departure from R.J. Reynolds and NAM in practice. The decision’s impact will depend on how the D.C. Circuit approaches the difficult question of whether a disclosure is “purely factual and uncontroversial.”
In May 2013, the Secretary of Agriculture promulgated a rule requiring that meat products carry labels identifying the country where each step of the production process took place.16 The American Meat Institute (AMI), relying on R.J. Reynolds, challenged the rule as an unconstitutional compulsion of speech.17 Judge Jackson of the U.S. District Court for the District of Columbia relied upon Zauderer in denying AMI’s motion for a preliminary injunction.18 She accepted that Zauderer applied only to disclosures intended to prevent deception,19 but reasoned that Zauderer review was proper because the old, less precise country-of-origin labels could have created “consumer confusion” about where the meat had been produced.20
The D.C. Circuit affirmed.21 Writing for a unanimous panel, Judge Williams22 advanced a more expansive reading of Zauderer. He held that Zauderer applies to disclosure mandates generally, not just those intended to prevent deception.23 To reach this conclusion, Judge Williams distinguished the controversial disclosure in R.J. Reynolds from the purely factual disclosure in the instant case.24 However, recognizing that some judges might disagree with his interpretation of Zauderer, Judge Williams recommended en banc review.25
On rehearing en banc, a divided D.C. Circuit affirmed.26 Writing for the majority, Judge Williams27 first considered the applicability of the Zauderer standard to the instant case.28 He acknowledged that all of the Supreme Court’s applications of Zauderer have concerned disclosures intended to remedy misleading advertising,29 but noted that the Court’s justification for its approach in Zauderer — that a company’s interest in withholding factual information from consumers is “minimal” — applies to all factual and uncontroversial disclosure mandates.30 To the extent that R.J. Reynolds and NAM conflicted with this broad application of Zauderer, the majority declared that they were overruled.31
The majority then evaluated the constitutionality of the country-of-origin requirement under Zauderer. In assessing disclosure mandates under Zauderer, the court applied a version of the Central Hudson test, which requires, among other things, (i) that the government’s asserted interest be substantial,32 and (ii) that the regulation “directly advance” that interest,33 such that there is “a ‘reasonable proportion’ between means and ends.”34
First, the majority analyzed the adequacy of the government’s interest. It disagreed with AMI’s claim that country-of-origin information merely satisfies consumers’ “idle curiosity.”35 Instead, it noted the long history of country-of-origin labels and the usefulness of such information to consumers concerned about production standards or contamination threats.36 The majority judged that these interests met the “substantial” standard of Central Hudson, and thus it had no need to decide whether a lesser interest would have satisfied Zauderer.37
Second, the majority assessed the relationship between the government’s regulatory goals and its chosen means. Because disclosure mandates self-evidently advance the government’s end of providing consumers with information and generally impose a negligible burden on a speaker, they will almost always stand up to this part of the analysis.38 For this reason, the majority suggested that Zauderer could be seen as “an application of Central Hudson, where several of Central Hudson’s elements have already been established.”39
Having found the country-of-origin requirement to satisfy Zauderer, the majority then ensured that the disclosure satisfied “the criteria triggering the application of Zauderer”40: whether the disclosure is of “purely factual and uncontroversial information.”41 AMI did not dispute that country-of-origin information is factual, though it did argue that the word “slaughter” could be considered controversial.42 The majority acknowledged the legitimacy of that concern, but noted that the rule allows retailers to use the more neutral word “harvested” instead.43 Accordingly, the majority found that the disclosure requirement was constitutional under Zauderer.
Judge Rogers concurred in part, but objected to the majority’s suggestion that Zauderer is simply an application of Central Hudson.44 Instead, argued Judge Rogers, Central Hudson and Zauderer involve distinct standards — the latter is akin to rational basis review, while the former is more demanding.45
Judge Kavanaugh concurred in the judgment. Though he found the government’s interest to be substantial given the long history of supporting American industry through country-of-origin labeling,46 he emphasized that merely wishing to “giv[e] consumers information” is not a sufficient interest.47 Judge Kavanaugh also endorsed the majority’s suggestion that Zauderer is an application of Central Hudson.48
Judge Brown49 wrote a lengthy dissent defending the narrower approach to Zauderer that she had advanced in R.J. Reynolds. For Judge Brown, Zauderer simply made clear that the First Amendment does not protect deceptive commercial speech; it did not establish that commercial disclosures are categorically less deserving of constitutional scrutiny than restrictions.50 Judge Brown characterized the majority’s reformulated Zauderer standard as extremely lax: “rational basis review minus any legitimate justification.”51 She assailed the majority for looking beyond the interests identified by the government during the litigation and coming up with its own justifications for the statute.52 By finding that the government’s “amorphous” interest in country-of-origin information was substantial, the majority “effectively absolve[d] the government of any burden.”53 Now, as long as a disclosure can be characterized as “factual and noncontroversial,” a seller’s packaging is “the government’s billboard.”54
The majority’s consumer-oriented justification for the First Amendment’s protection of commercial speech is more faithful to the Court’s precedents than the speaker-oriented approach that underwrote R.J. Reynolds and NAM.55 The cursory Zauderer review conducted in AMI is appropriate for factual and uncontroversial disclosure mandates, which actually further the aims of the commercial speech doctrine. But disclosures like those in R.J. Reynolds and NAM are not obviously factual and uncontroversial, and the court left ample room for plaintiffs to challenge mandated disclosures on that basis.
The consumer-welfare approach of AMI is more consistent with commercial speech doctrine than the libertarian approach of R.J. Reynolds and NAM.56 When the Supreme Court first extended First Amendment protection to commercial speech, it focused on the “consumer’s interest in the free flow of commercial information.”57 The Court made this more explicit in Central Hudson, declaring that “[t]he First Amendment’s concern for commercial speech is based on the informational function of advertising.”58 In AMI, the majority rightly emphasized that Zauderer recognizes a broad consumer interest in product information.59 By contrast, R.J. Reynolds and NAM depicted Zauderer as a narrow exception to otherwise robust protection against compelled speech of any sort, citing cases involving compelled political speech to support their skepticism toward commercial disclosures.60 In R.J. Reynolds, Judge Brown even invoked the “individual freedom of mind protected by the First Amendment” to support her narrow construal of Zauderer.61 This focus on the expressive rights of commercial actors, as opposed to the informational interests of consumers, is at odds with the Supreme Court’s commercial speech jurisprudence.62
Under this consumer-oriented approach, the majority was correct to subject factual disclosure mandates to a less searching standard of review. By promoting “the robust and free flow of accurate information,” factual disclosure mandates further the interests protected by commercial speech doctrine.63 In this context, courts need not scrutinize the government’s purpose for imposing disclosure mandates especially intensely. The generous analysis of the majority suggests that any factual disclosure that could reasonably be construed to benefit American consumers or producers will withstand the first prong of Zauderer.64 And by declaring that most disclosure mandates “self-evidently” advance the government’s interest and exhibit a “reasonable fit” between means and ends,65 the court made it less likely that future disclosure requirements will be invalidated under Zauderer’s second prong.
Though AMI expanded the scope of Zauderer, a compelled disclosure must be found “purely factual and uncontroversial” before it receives Zauderer’s permissive review. This is a highly indeterminate criterion. As Judge Brown noted in dissent, “what is claimed as fact may owe more to faith than science,”66 and even if a disclosure is indisputably factual it may implicate a matter of public controversy and thus be scrutinized under a more exacting standard.67 Thus, AMI may not represent a significant practical departure from R.J. Reynolds and NAM because the disclosures in those cases were arguably not “purely factual and uncontroversial,” and would likely still receive heightened scrutiny.68 The panel in R.J. Reynolds remarked that the graphic warning labels the government wanted to affix to cigarette packages were “inflammatory” and could not “rationally be viewed as pure attempts to convey information to consumers.”69 The panel in NAM questioned whether the “conflict free” designation was truly “non-ideological,” since it “requires [a company] to tell consumers that its products are ethically tainted.”70 The AMI majority gave no indication that it disagreed with these analyses. In fact, the majority took seriously a more subtle “factual and uncontroversial” argument: that requiring companies to use the word “slaughter” — which “might convey a certain innuendo” — crosses the line into the controversial.71 The D.C. Circuit has shown sensitivity to the slightest hints of controversy, and thus future challenges to disclosure mandates will likely focus on the “factual and uncontroversial” question.72
Although the “factual and uncontroversial” criterion is malleable, it is of genuine First Amendment importance. If the government conscripts a private party to espouse a factually contested view or to disclose certain facts in the service of a controversial agenda, this raises concerns that the government is impermissibly interfering in “public discourse.”73 When the government compels the public display of an ideological message, the more forgiving review of commercial speech regulation is no longer appropriate, and the libertarian concerns of R.J. Reynolds gain traction.74 But as the AMI majority’s treatment of the word “slaughter” indicates, even the most innocuous disclosures may contain some element of controversy.75 The D.C. Circuit must now decide just how much controversy it is willing to tolerate.76