Fed decision, Vermont can't require label rGBH (8/96)
Hi all -
Was cruisin' the Web and found this - thought it might be of interest, re:
prior conversation on this list. Is a discussion on the unsuccessful
attempt in Vermont to require labelling of the GE cow hormone rGBH. Has
important (negative) implications for other kinds of labelling.... From
"The Multinational Monitor" site. P. Dines
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[The Multinational Monitor]
OCTOBER 1996 =B7 VOLUME 17 =B7 NUMBER 10
E D I T O R I A L
Corporate Rights, and Wrongs
CAN U.S. FIRST AMENDMENT FREE-SPEECH RIGHTS prevent consumers from finding
out what is in their milk?
Yes, according to a federal appellate court. A three-judge panel of the
U.S. Court of Appeals for the Second Circuit held in August that
implementation of a Vermont law requiring milk produced with bovine growth
hormone to be specially labeled would violate dairy manufacturers'
constitutional right not to speak.
The ruling provides further confirmation of the wrong-headedness of the
legal doctrine by which corporations are afforded protection under the U.S.
Bill of Rights substantially equal to that provided real human beings.
The ruling came on a motion from the International Dairy Food Manufacturers
and a range of other milk-product manufacturing associations asking for a
preliminary injunction preventing the state from implementing a law
requiring dairy manufacturers to identify products made with recombinant
bovine somototropin (rBST) with a blue dot.
In the wake of the federal appellate court ruling, Vermont Attorney General
Jeffrey Amestoy decided to give up defending the state law, reasoning that
further court action would be futile.
Amestoy's decision, though perhaps premature, was understandable. The
court's decision was particularly distressing because, having found an
infringement on the manufacturers' right not to speak, the court also had
to consider the state's countervailing interest. Under the prevailing
commercial speech doctrine, if Vermont's labeling law advanced a
substantial state interest, and was no more extensive than necessary, it
would be upheld.
The appellate court, however, found that the state interest in
disseminating information to consumers was negligible. Since the U.S. Food
and Drug Administration (FDA) has concluded that rBST poses no threat to
human health, the court stated, demonstrated consumer interest amounted to
nothing more than "curiosity."
"Were consumer interest alone sufficient, there is no end to the
information that states could require manufacturers to disclose about their
production methods," the court wrote. "For instance, with respect to
cattle, consumers might reasonably evince an interest in knowing which
grains herds were fed, with which medicines they were treated, or the age
at which they were slaughtered." This is indeed so; it is not clear,
however, why such disclosure requirements, if a state democratically
decided to impose them, are excessive.
In dissent, Circuit Judge Leval disputed both prongs of the majority's
Under the constitution, corporations' commercial speech rights, he wrote,
primarily concern truthful disclosure the very goal the milk producers
sought to undermine. "Notwithstanding their self-righteous references to
free expression, the true objective of the milk producers is concealment,"
Leval wrote. "They do not wish consumers to know that their milk products
were produced by use of rBST because there are consumers who, for various
reasons, prefer to avoid rBST."
Moreover, Leval argued, Vermont citizens had a legitimate interest in
desiring information as to rBST use. Despite the FDA "clean bill of
health," consumer concerns about rBST effects on human health are
legitimate, he asserted, noting that many products approved for use later
prove to pose health risks. He also concluded that consumer interests in
both the rBST effect on cows' health and in the economic impact of
rBST-generated increased milk production were legitimate.
Judge Leval's arguments are compelling, and they demonstrate how the case
could have been decided differently, even under current doctrine. But the
fact that two out of the three judges on the panel supported the perverse
outcome highlights the need for a full-fledged reconsideration of the
entire body of law awarding constitutional speech rights to corporations.
The commercial speech rights doctrine affords valuable protection to
citizen interests in obtaining marketplace information. The doctrine has
been used, for example, to force states to permit advertisements of
prescription drug prices. Price information empowers consumers and helps
keep overall prices down.
That same result could be achieved, however, by grounding a narrow
protection of advertising in citizens' -- real people's, not corporations'
-- right to know, a right to receive information that can be read as
implicitly based in the First Amendment. Such a citizen right to know could
never give rise to a decision like the one in the rBST case.
Constitutional protections for corporations' political speech yield even
more antidemocratic results. Citing corporate political speech rights, the
U.S. Supreme Court has invalidated a state regulation requiring a public
utility, at no expense to the utility, to allow a non-profit consumer
ratepayer advocacy organization to enclose inserts in the utility's billing
envelopes asking ratepayers to join the consumer group. As in the rBST
case, forcing acceptance of the insert was held a violation of the
utility's right not to speak. The Supreme Court has also relied on
corporate political speech rights to hold that corporations must be
permitted to make campaign contributions through political action
committees, thus ensuring that big money will distort the democratic
Again, a more prudent approach to the corporate speech rights issue is to
ground protections for corporations in the public's right to know. Where
categories or types of corporate speech advance the public interest -- that
is, the interest of real people -- by providing truthful information, they
should be protected; where they do not, they should not.
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