The Freedom to Not Disclose: A First Amendment Analysis of the National Bioengineered Food Disclosure Standard

Abstract

Abstract

On January 1, 2020, large food manufacturers will be required to disclose the presence in their products of ingredients produced with bioengineering. It is unclear how courts would resolve a First Amendment challenge to this requirement, or what standard of review they would apply. The Court established in Zauderer that rational basis scrutiny applies to disclosure requirements which cure deceptive or misleading speech. Federal circuits are currently split on whether the same level of scrutiny applies to disclosure requirements, like this one, that further different government interests. This article argues that rational basis should not apply in these cases because the Court's First Amendment jurisprudence provides for the unique treatment of deceptive speech and demands precise and well-reasoned regulations in the area of the First Amendment. This article concludes that courts should instead apply Central Hudson's intermediate scrutiny test to disclosure requirements, such as this one, that are not aimed at curing deceptive or misleading speech. Under this level of scrutiny, courts should hold that the Bioengineered Food Disclosure Standard violates the First Amendment.