The “Uncontroversial” Controversy in Compelled Commercial Disclosures
By Lauren Fowler
Federal and state administrative agencies increasingly advance public health goals through the use of mandatory disclosures, like warning labels on cigarettes, that are intended to both inform and influence consumer decisions. However, the standard for determining whether these requirements violate a commercial speaker’s First Amendment rights is unsettled. In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court adopted a test that defers to the government’s determination that the compelled disclosure of “factual and uncontroversial information” is justified. Since Zauderer was decided, lower courts have disagreed about the meaning of “uncontroversial.” A recent Supreme Court case, National Institute of Family & Life Advocates v. Becerra (NIFLA), may have resolved the debate by treating “uncontroversial” as a requirement that a disclosure not relate to a controversial subject matter. In doing so, the Court diverged from two interpretations commonly adopted by lower courts: that “uncontroversial” refers to the factual accuracy of the disclosed information or to the underlying ideology.
This Note illustrates the public health implications of these various interpretations in the context of an ongoing international debate over the benefits of breastfeeding and mandatory disclosures with respect to infant formula. It argues that the Court’s position in NIFLA poses a significant obstacle to government efforts to protect public health and ignores Zauderer’s firm grounding in listeners’ informational interests. Factual accuracy more appropriately limits Zauderer’s scope. Heightened scrutiny should only apply if the government compels a commercial speaker to convey opinion. While concerns about the overuse of warnings for remote or unsubstantiated risks are well-founded, this issue may be addressed by evaluating whether a particular disclosure fails Zauderer review as “unjustified or unduly burdensome.” This framework for compelled disclosures is more strongly supported by the text of Zauderer itself, and it would grant proper deference to a legislature’s policy determination that potential health risks justify a disclosure.