CONSTITUTIONAL LAW—FREE SPEECH AND GENETICALLY MODIFIED FOOD LABELING: A PROPOSED FRAMEWORK FOR DETERMINING THE CONTROVERSIAL CHARACTER OF COMPELLED COMMERCIAL SPEECH

Authors

Richard W. Keidel

Abstract

Food is an inextricable ingredient of life. Today, food manufacturers use modes of genetic modification to produce foodstuffs. As a result of the citizenry’s increased awareness of this fact, states are requiring food manufacturers to disclose which of their products are genetically modified. However, within the context of the First Amendment to the United States Constitution, state-mandated labeling of genetically modified food stands on an infirm foothold. The constitutionality of these disclosure requirements turns on whether state-mandated, genetically modified food labels are uncontroversial. Moreover, under the commercial speech doctrine, it is unclear how a court should assess and what a court should examine to determine whether compelled commercial speech is controversial. This Note proposes that (1) a court should examine the speech’s tendency to advance a controversial ideology, and (2) a court can assess the speech’s tendency to advance a controversial ideology by determining if the speech is relevant to a normative value and whether the speech’s normative force outweighs its informative force. This Note concludes that state-mandated, genetically modified food labels are controversial; therefore, the commercial speech doctrine’s more lenient form of means-end scrutiny is inapposite in analyzing state disclosure requirements that concern genetically modified food.

Recommended Citation

Richard W. Keidel, CONSTITUTIONAL LAW—FREE SPEECH AND GENETICALLY MODIFIED FOOD LABELING: A PROPOSED FRAMEWORK FOR DETERMINING THE CONTROVERSIAL CHARACTER OF COMPELLED COMMERCIAL SPEECH, 38 W. New Eng. L. Rev. 47 (2016), https://digitalcommons.law.wne.edu/lawreview/vol38/iss1/2