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By Jon Coupal
Everyone knows that the Constitution protects free speech under the First Amendment.
But many may not realize that the First Amendment also protects commercial speech, such as advertisements. Even though the level of protection afforded to commercial speech is less than that given to other kinds of speech, especially political speech, businesses still have rights about what they say.
The First Amendment is also implicated when laws require labeling for commercial enterprises. For example, it is entirely legal for government to require fast food businesses to post the calorie count on the products they serve to the public. There are innumerable other examples of required disclosures, such as gas mileage and safety ratings for automobiles and whether a newly constructed home is subject to Mello-Roos taxes.
One infamous example of “forced speech” in California was imposed via Proposition 65, passed by voters in 1986. Commercial enterprises are required to post warning labels that their products or place of business may contain substances known to cause cancer. But Prop. 65 warnings are so ubiquitous in California that they have become meaningless. They are found on everything from bread to potato chips to chocolate chip cookies. In California, it appears, everything causes cancer.
But a recent court ruling over acrylamide, a naturally occurring substance that is formed in the process of baking goods, may have reined in the absurdity of Prop. 65 warnings just a bit. The Ninth Circuit Court of Appeals ruled that because scientific evidence couldn’t come to a single conclusion over whether acrylamide in food and beverages can cause cancer in humans, the Prop. 65 warning signs for these products were “likely misleading.”
Turns out that government itself was violating “truth in advertising” laws.
To read the entire column, please click here.
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