Clarifying Standards for Compelled Commercial Speech

Abstract

This article identifies and analyzes unsettled areas in compelled commercial speech doctrine, especially those critical to identifying the appropriate level of scrutiny to be applied to mandated warnings and disclosures. Looking back to the original purpose of the commercial speech doctrine, this article suggests that communities should have considerable flexibility to mandate warnings geared towards protecting the public’s health. Mandated warnings may not always be the most effective policy option, but as a matter of First Amendment doctrine, communities should be given broad leeway to decide whether and how to use warnings in order to better inform the public about potential dangers. Part I provides the factual and legal background necessary to explore this issue. After briefly discussing the use of mandated warnings and disclosures as public health tools, it reviews the Zauderer test, which is the prevailing standard for analyzing compelled commercial speech under the First Amendment. It then discusses the 2012 D.C. Circuit Court of Appeals opinion striking down graphic health warnings for cigarette packs and advertisements, which exemplifies the courts’ increasingly aggressive review of compelled commercial speech requirements. Part II identifies some of the core doctrinal questions in need of clarification. It also considers how these questions might best be resolved, keeping in mind the government’s interest in promoting and protecting public health. Finally, Part III concludes the article by discussing a pending legal challenge to San Francisco's warnings for sugar-sweetened beverage advertisements.