Law and the Public’s Health What happens when free speech meets public health efforts to regulate commercial enterprises that potentially raise health and safety risks? This installment of Law and the Public’s Health explores this question, using the case of raw milk sales to illustrate the issues that can arise for public health policy-making and enforcement. Sara Rosenbaum, JD George Washington University, Milken Institute School of Public Health Department of Health Policy, Washington, DC
Raw Milk and the First Amendment: Implications for Public Health Policy and Practice Stephanie D. David, JD, MPH
With raw milk advocates continuing to push for state laws easing access to raw milk, health professionals (e.g., the American Academy of Pediatrics),1 public health officials, and foodborne illness victims continue to warn of its dangers. From 1998 to 2011, the United States experienced at least 148 outbreaks from raw milk and raw milk products, resulting in 2,384 illnesses, 284 hospitalizations, and two deaths.2 One recent study suggests that outbreak numbers alone understate the number of individuals who fall victim to foodborne illness from drinking raw milk.3 The raw milk debate raises myriad legal issues. A previous installment of Law and the Public’s Health discussed challenges as they relate to the exercise of federal and state regulatory powers under the U.S. Constitution Commerce Clause and state police powers.4 This installment considers the question of raw milk regulation in the context of the First Amendment Free Speech clause. Although raw milk is the immediate topic at hand, the First Amendment issues that have arisen are indicative of the extent to which free speech claims have begun to surface with regularity in cases involving efforts to place regulatory curbs on commercial enterprises. Background Raw milk is milk that has not been pasteurized. Pasteurization is a process that heats milk to temperatures high enough to kill harmful bacteria such as Escherichia coli O157, Listeria monocytogenes, Campylobacter, and Salmonella. The U.S. Food and Drug Administration (FDA) prohibits the interstate sale of raw milk, while states
retain the authority to permit raw milk sales within their borders. Currently, 30 states allow raw milk to be sold in intrastate commerce under various restrictions.5 U.S. Centers for Disease Control and Prevention (CDC) estimates from 2007 suggest that approximately 3% of the U.S. population drinks raw milk.6 Many raw milk advocates claim that the pasteurization process depletes milk of beneficial nutrients and that raw milk has therapeutic properties, such as reducing asthma and allergies; public health officials dispute these claims based on the absence of credible scientific evidence. Nonetheless, the consumer demand for raw milk continues, including among parents who believe in raw milk’s health qualities. Increased demand in turn has heightened pressure on states to either legalize raw milk sales or relax current regulatory restrictions. Instead of choosing to ban its sale, some states have sought a middle regulatory ground through measures that allow the sale of raw milk but with some disclosure of risks. Both a ban on sales and disclosure requirements through labeling are asserted to raise First Amendment free speech issues. Restrictions on advertising In November 2013, an Oregon dairy farmer sued the Oregon Department of Agriculture, arguing that its advertising ban on raw milk (although the sale of raw milk in Oregon is legal when sold onsite at the farm where it was produced) violated her First Amendment rights. The case settled before going to trial, with Oregon agreeing to relax its advertising restrictions.7 Raw milk advertising is banned in at least four other states where farm sales are otherwise permitted. Raw milk advertising (or any other type of advertising of food or health care for that matter) represents what the U.S. Supreme Court has characterized as commercial speech. The Court defines commercial speech as an “expression related solely to the economic interests of the speaker and its audience.” Under Court precedent, commercial speech is entitled to lesser First
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Amendment protection than political, social, and other types of protected speech.8 In determining if governmental restrictions on commercial speech violate the First Amendment, the Court has created a four-part test, originally set forth in Central Hudson Gas v. Public Service Commission. First, to warrant some protection under the First Amendment, the speech must be lawful and not misleading. Where the speech meets this standard, the government must show that its restriction on speech is justified by a substantial government interest, that the restriction will advance the state’s interest to a material degree, and that the regulation of speech is no more extensive than necessary (i.e., narrowly tailored) to achieve the government’s interest.8 While no court has yet had opportunity to issue a specific ruling on raw milk, other decisions applying Central Hudson shed light on how a total ban might be analyzed. In 44 Liquormart, Inc. v. Rhode Island, the Supreme Court struck down a complete ban on alcoholic beverage price advertising.9 The plurality opinion noted that complete bans on advertising truthful and non-misleading information about a lawful product must be reviewed with “special care,”9 and held that the ban failed prongs three and four of Central Hudson because the state could not show how such a ban materially advanced its interest in reducing alcohol consumption and was also excessive. A total ban on raw milk advertising could be expected to run into the same constitutionality problems, especially because there is no evidence that raw milk advertising bans substantially reduce consumption or that such a ban would not be excessive. Although recent cases suggest the government does not need to employ the least restrictive alternative to satisfy Central Hudson, a complete ban could be viewed as more restrictive than necessary to achieve its goal in reducing raw milk consumption. Importantly, in 44 Liquormart, the Court rejected the notion that because the state had authority to prohibit the sale of alcohol entirely, it could therefore completely ban advertising. A similar analysis might come into play with raw milk in those states that legalize sales but prohibit advertising. Mandated warning labels and signage Another approach might be requiring warning labels either affixed to bottles or posted at the point of sale that identify the risks posed by raw milk to specific populations, such as children, pregnant women, the elderly, and people with compromised immune systems. South Dakota took such a step in late 2013 following a heated debate, becoming the eighth state to require health warnings on raw milk products.10
Product labeling is a long-standing public health intervention that at times has drawn intense criticism and charges that the intervention violates businesses’ free speech rights, an allegation based on the fact that the First Amendment protects both the right to speak and the right to refrain from speaking.11 Therefore, when the government regulates the content of a label, such content regulation arguably crosses the First Amendment line. Raw milk producers argue that requiring warning labels forces them to say something that implies that their product is unsafe, which may discourage sales. In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, the Supreme Court held that when government compels disclosure of factual and non-controversial commercial information in an effort to prevent consumer deception, such a requirement need satisfy only a lower “legitimate governmental interest” test as opposed to the higher Central Hudson test, as used for advertising restrictions.12 Under this lower standard of review, governments have generally been able to justify labeling requirements without running into free speech problems. The scientific evidence on raw milk would appear to be substantial enough to justify labeling regulation. A recent federal case examining the constitutionality of graphic warning labels for tobacco suggests that going forward, courts may insist on stronger justifications for some mandated product warning labels.13 However, at a minimum, text warning labels on raw milk that contain a purely factual and non-controversial statement about the safety of the product, such as “raw milk may contain pathogens harmful to human health,” should continue to fall within the constitutional bounds of governmentcompelled commercial speech. Implications for Public Health Policy and Practice Raw milk poses challenges similar to other products that carry health risks but that may be legally sold, such as alcohol, tobacco, raw oysters, and foods of low nutritional quality. Public health officials often impose advertising restrictions and require warnings to help limit sales and inform the public of the risks involved in consuming the product. The recent events in Oregon and South Dakota highlight a growing line of challenges to public health interventions that restrict or compel commercial speech. For example, prior to the passage of the Affordable Care Act (ACA), food service stakeholders fought to keep states from implementing calorie and nutrition menu labeling in restaurants, arguing in part
Public Health Reports / September–October 2014 / Volume 129
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that these requirements violated the First Amendment. Opponents ultimately agreed to menu labeling under the ACA for certain chain restaurants, on the grounds that any future state or local attempts to impose different labeling requirements would be preempted by the federal law.14 Efforts to require labeling of genetically modified foods and new FDA regulations surrounding nutrition labeling may raise similar concerns under the First Amendment. Although “rational basis” should remain the standard of review for most product labels providing consumers with factual and non-controversial information, public health authorities will need to keep a close eye on how the FDA proceeds with developing graphic warning labels for tobacco products, and if, in the face of another First Amendment challenge, federal courts will find a rational basis or a heightened standard of review to be appropriate. Where Central Hudson is deemed the appropriate test, public health officials will need to ensure that they are collecting data to support the efficacy of their interventions, and may need to consider advertising restrictions that are less stringent than they would like to fall within constitutional limits on regulations interfering with commercial speech. With regard to the future of raw milk, public health officials are between a rock and a hard place. In states where consumers demand it and legislators support it, there appear to be few options to ensure the safety of individuals (most concernedly children) who consume a product that is known to cause significant foodborne illness. Advertising restrictions and compelled warning labels provide two interventions to help limit sales and inform consumers of the risk in those states where raw milk is legal. However, if public health authorities lose these tools due to First Amendment complications, public health will need to find other strategies to help keep consumers informed and safe from the potential risks of drinking raw milk.
REFERENCES 1. American Academy of Pediatrics, Committee on Infectious Diseases and Committee on Nutrition. Consumption of raw or unpasteurized milk and milk products by pregnant women and children. Pediatrics 2014;133:175-9. 2. Centers for Disease Control and Prevention (US). CDC features: raw (unpasteurized) milk [cited 2014 Mar 8]. Available from: URL: http://www.cdc.gov/features/rawmilk 3. Robinson TJ, Scheftel JM, Smith KE. Raw milk consumption among patients with non-outbreak-related enteric infections, Minnesota, USA, 2001–2010. Emerg Infect Dis 2014;20:38-44. 4. David SD. Raw milk in court: implications for public health policy and practice. Public Health Rep 2012;127:598-601. 5. Hendrick S, Farquhar D. Summary of raw milk statutes and administrative codes. Denver: National Conference of State Legislatures; 2013. Also available from: URL: http://www.ncsl.org/documents /agri/RawMilk13.pdf [cited 2014 Feb 28]. 6. Centers for Disease Control and Prevention (US). Foodborne Diseases Active Surveillance Network (FoodNet) population survey, atlas of exposures, 2006–2007. Atlanta: CDC; 2007. Also available from: URL: http://www.cdc.gov/foodnet/surveys/FoodNetExposure Atlas0607_508.pdf [cited 2014 Mar 9]. 7. Oregon backs off ban on raw milk advertising. Oregon Herald 2014 Feb 15 [cited 2014 May 16]. Available from: URL: http://www .oregonherald.com/oregon/local.cfm?id=5931 8. Central Hudson Gas & Electric Corp v. Public Service Commission of New York, 447 U.S. 557 (1980). 9. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 10. Mercer B. State proceeds with new rules requiring labeling of raw milk. Capital J 2013 Nov 26 [cited 2014 Mar 1]. Available from: URL: http://www.capjournal.com/news/state-proceeds-with-newrules-requiring-labeling-of-raw-milk/article_ffe9fdb2-5661-11e3b096-001a4bcf887a.html 11. Wooley v. Maynard, 430 U.S. 705, 714 (1977). 12. Zauderer v. Office of Disciplinary Counsel, Supreme Court of Ohio, 471 U.S. 626 (1985). 13. R.J. Reynolds Tobacco Company v. Food and Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012). 14. Pub. L. No. 111-148, §4205, 124 Stat. 119 (2010).
Stephanie David is an Assistant Research Professor with The George Washington University, Milken Institute School of Public Health, Department of Health Policy in Washington, D.C. Address correspondence to: Stephanie D. David, JD, MPH, The George Washington University, Milken Institute School of Public Health, Department of Health Policy, 2175 K St. NW, Washington, DC 20052; tel. 202-994-4249; e-mail . ©2014 Association of Schools and Programs of Public Health
Public Health Reports / September–October 2014 / Volume 129
Raw Milk and the First Amendment: Implications for Public Health Policy and Practice Stephanie D. David, JD, MPH
With raw milk advocates continuing to push for state laws easing access to raw milk, health professionals (e.g., the American Academy of Pediatrics),1 public health officials, and foodborne illness victims continue to warn of its dangers. From 1998 to 2011, the United States experienced at least 148 outbreaks from raw milk and raw milk products, resulting in 2,384 illnesses, 284 hospitalizations, and two deaths.2 One recent study suggests that outbreak numbers alone understate the number of individuals who fall victim to foodborne illness from drinking raw milk.3 The raw milk debate raises myriad legal issues. A previous installment of Law and the Public’s Health discussed challenges as they relate to the exercise of federal and state regulatory powers under the U.S. Constitution Commerce Clause and state police powers.4 This installment considers the question of raw milk regulation in the context of the First Amendment Free Speech clause. Although raw milk is the immediate topic at hand, the First Amendment issues that have arisen are indicative of the extent to which free speech claims have begun to surface with regularity in cases involving efforts to place regulatory curbs on commercial enterprises. Background Raw milk is milk that has not been pasteurized. Pasteurization is a process that heats milk to temperatures high enough to kill harmful bacteria such as Escherichia coli O157, Listeria monocytogenes, Campylobacter, and Salmonella. The U.S. Food and Drug Administration (FDA) prohibits the interstate sale of raw milk, while states
retain the authority to permit raw milk sales within their borders. Currently, 30 states allow raw milk to be sold in intrastate commerce under various restrictions.5 U.S. Centers for Disease Control and Prevention (CDC) estimates from 2007 suggest that approximately 3% of the U.S. population drinks raw milk.6 Many raw milk advocates claim that the pasteurization process depletes milk of beneficial nutrients and that raw milk has therapeutic properties, such as reducing asthma and allergies; public health officials dispute these claims based on the absence of credible scientific evidence. Nonetheless, the consumer demand for raw milk continues, including among parents who believe in raw milk’s health qualities. Increased demand in turn has heightened pressure on states to either legalize raw milk sales or relax current regulatory restrictions. Instead of choosing to ban its sale, some states have sought a middle regulatory ground through measures that allow the sale of raw milk but with some disclosure of risks. Both a ban on sales and disclosure requirements through labeling are asserted to raise First Amendment free speech issues. Restrictions on advertising In November 2013, an Oregon dairy farmer sued the Oregon Department of Agriculture, arguing that its advertising ban on raw milk (although the sale of raw milk in Oregon is legal when sold onsite at the farm where it was produced) violated her First Amendment rights. The case settled before going to trial, with Oregon agreeing to relax its advertising restrictions.7 Raw milk advertising is banned in at least four other states where farm sales are otherwise permitted. Raw milk advertising (or any other type of advertising of food or health care for that matter) represents what the U.S. Supreme Court has characterized as commercial speech. The Court defines commercial speech as an “expression related solely to the economic interests of the speaker and its audience.” Under Court precedent, commercial speech is entitled to lesser First
Public Health Reports / September–October 2014 / Volume 129
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456 Law and the Public’s Health
Amendment protection than political, social, and other types of protected speech.8 In determining if governmental restrictions on commercial speech violate the First Amendment, the Court has created a four-part test, originally set forth in Central Hudson Gas v. Public Service Commission. First, to warrant some protection under the First Amendment, the speech must be lawful and not misleading. Where the speech meets this standard, the government must show that its restriction on speech is justified by a substantial government interest, that the restriction will advance the state’s interest to a material degree, and that the regulation of speech is no more extensive than necessary (i.e., narrowly tailored) to achieve the government’s interest.8 While no court has yet had opportunity to issue a specific ruling on raw milk, other decisions applying Central Hudson shed light on how a total ban might be analyzed. In 44 Liquormart, Inc. v. Rhode Island, the Supreme Court struck down a complete ban on alcoholic beverage price advertising.9 The plurality opinion noted that complete bans on advertising truthful and non-misleading information about a lawful product must be reviewed with “special care,”9 and held that the ban failed prongs three and four of Central Hudson because the state could not show how such a ban materially advanced its interest in reducing alcohol consumption and was also excessive. A total ban on raw milk advertising could be expected to run into the same constitutionality problems, especially because there is no evidence that raw milk advertising bans substantially reduce consumption or that such a ban would not be excessive. Although recent cases suggest the government does not need to employ the least restrictive alternative to satisfy Central Hudson, a complete ban could be viewed as more restrictive than necessary to achieve its goal in reducing raw milk consumption. Importantly, in 44 Liquormart, the Court rejected the notion that because the state had authority to prohibit the sale of alcohol entirely, it could therefore completely ban advertising. A similar analysis might come into play with raw milk in those states that legalize sales but prohibit advertising. Mandated warning labels and signage Another approach might be requiring warning labels either affixed to bottles or posted at the point of sale that identify the risks posed by raw milk to specific populations, such as children, pregnant women, the elderly, and people with compromised immune systems. South Dakota took such a step in late 2013 following a heated debate, becoming the eighth state to require health warnings on raw milk products.10
Product labeling is a long-standing public health intervention that at times has drawn intense criticism and charges that the intervention violates businesses’ free speech rights, an allegation based on the fact that the First Amendment protects both the right to speak and the right to refrain from speaking.11 Therefore, when the government regulates the content of a label, such content regulation arguably crosses the First Amendment line. Raw milk producers argue that requiring warning labels forces them to say something that implies that their product is unsafe, which may discourage sales. In Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, the Supreme Court held that when government compels disclosure of factual and non-controversial commercial information in an effort to prevent consumer deception, such a requirement need satisfy only a lower “legitimate governmental interest” test as opposed to the higher Central Hudson test, as used for advertising restrictions.12 Under this lower standard of review, governments have generally been able to justify labeling requirements without running into free speech problems. The scientific evidence on raw milk would appear to be substantial enough to justify labeling regulation. A recent federal case examining the constitutionality of graphic warning labels for tobacco suggests that going forward, courts may insist on stronger justifications for some mandated product warning labels.13 However, at a minimum, text warning labels on raw milk that contain a purely factual and non-controversial statement about the safety of the product, such as “raw milk may contain pathogens harmful to human health,” should continue to fall within the constitutional bounds of governmentcompelled commercial speech. Implications for Public Health Policy and Practice Raw milk poses challenges similar to other products that carry health risks but that may be legally sold, such as alcohol, tobacco, raw oysters, and foods of low nutritional quality. Public health officials often impose advertising restrictions and require warnings to help limit sales and inform the public of the risks involved in consuming the product. The recent events in Oregon and South Dakota highlight a growing line of challenges to public health interventions that restrict or compel commercial speech. For example, prior to the passage of the Affordable Care Act (ACA), food service stakeholders fought to keep states from implementing calorie and nutrition menu labeling in restaurants, arguing in part
Public Health Reports / September–October 2014 / Volume 129
Law and the Public’s Health 457
that these requirements violated the First Amendment. Opponents ultimately agreed to menu labeling under the ACA for certain chain restaurants, on the grounds that any future state or local attempts to impose different labeling requirements would be preempted by the federal law.14 Efforts to require labeling of genetically modified foods and new FDA regulations surrounding nutrition labeling may raise similar concerns under the First Amendment. Although “rational basis” should remain the standard of review for most product labels providing consumers with factual and non-controversial information, public health authorities will need to keep a close eye on how the FDA proceeds with developing graphic warning labels for tobacco products, and if, in the face of another First Amendment challenge, federal courts will find a rational basis or a heightened standard of review to be appropriate. Where Central Hudson is deemed the appropriate test, public health officials will need to ensure that they are collecting data to support the efficacy of their interventions, and may need to consider advertising restrictions that are less stringent than they would like to fall within constitutional limits on regulations interfering with commercial speech. With regard to the future of raw milk, public health officials are between a rock and a hard place. In states where consumers demand it and legislators support it, there appear to be few options to ensure the safety of individuals (most concernedly children) who consume a product that is known to cause significant foodborne illness. Advertising restrictions and compelled warning labels provide two interventions to help limit sales and inform consumers of the risk in those states where raw milk is legal. However, if public health authorities lose these tools due to First Amendment complications, public health will need to find other strategies to help keep consumers informed and safe from the potential risks of drinking raw milk.
REFERENCES 1. American Academy of Pediatrics, Committee on Infectious Diseases and Committee on Nutrition. Consumption of raw or unpasteurized milk and milk products by pregnant women and children. Pediatrics 2014;133:175-9. 2. Centers for Disease Control and Prevention (US). CDC features: raw (unpasteurized) milk [cited 2014 Mar 8]. Available from: URL: http://www.cdc.gov/features/rawmilk 3. Robinson TJ, Scheftel JM, Smith KE. Raw milk consumption among patients with non-outbreak-related enteric infections, Minnesota, USA, 2001–2010. Emerg Infect Dis 2014;20:38-44. 4. David SD. Raw milk in court: implications for public health policy and practice. Public Health Rep 2012;127:598-601. 5. Hendrick S, Farquhar D. Summary of raw milk statutes and administrative codes. Denver: National Conference of State Legislatures; 2013. Also available from: URL: http://www.ncsl.org/documents /agri/RawMilk13.pdf [cited 2014 Feb 28]. 6. Centers for Disease Control and Prevention (US). Foodborne Diseases Active Surveillance Network (FoodNet) population survey, atlas of exposures, 2006–2007. Atlanta: CDC; 2007. Also available from: URL: http://www.cdc.gov/foodnet/surveys/FoodNetExposure Atlas0607_508.pdf [cited 2014 Mar 9]. 7. Oregon backs off ban on raw milk advertising. Oregon Herald 2014 Feb 15 [cited 2014 May 16]. Available from: URL: http://www .oregonherald.com/oregon/local.cfm?id=5931 8. Central Hudson Gas & Electric Corp v. Public Service Commission of New York, 447 U.S. 557 (1980). 9. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). 10. Mercer B. State proceeds with new rules requiring labeling of raw milk. Capital J 2013 Nov 26 [cited 2014 Mar 1]. Available from: URL: http://www.capjournal.com/news/state-proceeds-with-newrules-requiring-labeling-of-raw-milk/article_ffe9fdb2-5661-11e3b096-001a4bcf887a.html 11. Wooley v. Maynard, 430 U.S. 705, 714 (1977). 12. Zauderer v. Office of Disciplinary Counsel, Supreme Court of Ohio, 471 U.S. 626 (1985). 13. R.J. Reynolds Tobacco Company v. Food and Drug Administration, 696 F.3d 1205 (D.C. Cir. 2012). 14. Pub. L. No. 111-148, §4205, 124 Stat. 119 (2010).
Stephanie David is an Assistant Research Professor with The George Washington University, Milken Institute School of Public Health, Department of Health Policy in Washington, D.C. Address correspondence to: Stephanie D. David, JD, MPH, The George Washington University, Milken Institute School of Public Health, Department of Health Policy, 2175 K St. NW, Washington, DC 20052; tel. 202-994-4249; e-mail . ©2014 Association of Schools and Programs of Public Health
Public Health Reports / September–October 2014 / Volume 129
