That’s one of the many issues raised by Seth Frotman & Brad Lipton’s short article in the California Law Review Online, The Greatest Trick John Roberts Ever Pulled: Convincing the World that Rigged Courts Are Neutral. Here’s some of what they say about disclosures:
[T]he Roberts court has destroyed any justification for a disclosure-based consumer protection regime. Across decisions, courts have found that people lack standing—and let companies escape accountability—for failing to provide required information, or even for providing false information, if each and every consumer who tries to hold the company to account cannot show that they acted on the incorrect information. This has dramatically reduced any incentive companies have to actually comply with Congress’s mandates to provide accurate information to consumers.
Neoliberal economists, not to mention well-funded conservative groups and lawmakers, have lectured policymakers for years about the virtues of interventions that create markets where well-informed consumers rationally choose products or services. This has led to the creation of requirements for notices and other disclosures to inform consumers, who supposedly will be best served by making their own informed choices, rather than restrictions on what is allowed in the marketplace. Now the federal courts are rendering these rules basically worthless by making it impossible for people to sue for violations of them. Companies can fail to make appropriate disclosures or even provide false or misleading information with little consequence. If courts reject the proposition that consumers are harmed by a marketplace with insufficient or even incorrect information, it makes little sense to write laws and regulations built around disclosures and notices. Policymakers and regulators have no choice but to outright ban harmful practices.
