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Disclosures as substantive regulation

By Rebecca Tushnet

I have argued that regulating commercial speech and regulating commercial conduct are often intertwined, making application of the full force of the First Amendment to commercial speech a mistake in a post-New Deal world. I think this is most evident when it comes to disclosures. Slate's take on New York's new requirement of calorie disclosure on fast food menus provides a good example:

The law may have the salutary effect of getting restaurants to change their ways. Nonas uses the example of Starbucks, which has reacted to the debate over menu labeling by switching its default milk from whole to 2 percent. Margo Wootan, director of nutrition policy for the Center for Science in the Public Interest, said getting restaurants to change what they serve can be just as important as getting customers to change what they order. "Maybe McDonald's will rethink whether a large shake really needs to have 1,200 calories," she said. "Could people be happy with a 900-calorie shake?"

Full post as published by 43(B)log on July 04, 2008 (boomark / email).