by Ted Mermin (guest blogger — pictured to the right)
Just a quick follow-up on Allison Zieve's post on the country-of-origin-labeling case decided yesterday by the DC Circuit.
As Allison notes, the case addresses the constitutional standard under which government-mandated disclosures should be reviewed. In particular, the decision will affect the manifold federal administrative regulations — requiring disclosures about everything from the risks of cigarette smoking to the number of calories in fast food to corporations' use of "conflict minerals" — that may come before the DC Circuit.
The en banc court's decision overruled several earlier decisions by panels of the DC Circuit that had suggested government has less leeway under the First Amendment to require disclosures — specifically, that more lenient review is appropriate only when government has acted to prevent consumer deception and confusion. Those decisions had created a split with the other Circuits that have addressed the issue. The en banc majority opinion brings the DC Circuit back in line with its sister Circuits: "[W]e answer affirmatively the general question of whether government interests in addition to correcting deception can be invoked to sustain a disclosure mandate under [the more lenient standard]…."
The majority opinion garnered the votes of 7 of the 11 participating judges. Two others wrote concurring opinions upholding the law, and two penned dissents. One of those dissents, by Judge Janice Rogers Brown, contains the following passage:
Of course the victors today [beef producers] will be the victims tomorrow, because the standard created by this case will virtually ensure the producers supporting this labeling regime will one day be saddled with objectionable disclosure requirements (perhaps to disclose cattle feed practices; how their cattle are raised; whether their cattle were medically treated and with what; the environmental effects of beef production; or even the union status or wage levels of their employees). Only the fertile imaginations of activists will limit what disclosures successful efforts from vegetarian, animal rights, environmental, consumer protection, or other as-yet-unknown lobbies may compel.
(Disclosure: both Public Citizen Litigation Group, which Allison directs, and the Public Good Law Center, where I am ED, authored amicus briefs in support of the government.)
