In Int’l Dairy Foods Ass’n v Boggs, Nos 09-3515, 09-3526 (6th Cir Sept 30, 2010).pdf the Sixth Circuit entered the fray surrounding the use of the artificial hormone recombinant bovine somatotropin (rbST) in connection with the production of dairy products. While the safe use of rbST has been a subject of much debate of late, the Sixth Circuit’s foray into the issue concerned not whether products from rbST-treated cows pose health risks, but whether recently adopted Ohio Department of Agriculture (“ODA”) regulations run afoul of the Free Speech and Dormant Commerce Clause aspects of the First Amendment (only the former will be discussed here).

Due to a growing interest in dairy products made from non-rbST-supplemented cows, several dairy processors began advertising their nonuse of rbST in conjunction with the sale of their products within and outside of Ohio. To ensure that these claims did not leave consumers with the allegedly erroneous impression that products made from rbST-treated products are less safe than their rbST-free counterparts, the ODA enacted prophylactic bans on dairy processors’ “composition claims” relative to their nonuse of rbST (“rbST Free”) and requirements that, where “production claims” are made (“this milk is from cows not supplemented with rbST”), contiguous disclosures be included to inform consumers that the FDA has determined that “no significant difference has been shown between milk derived from rbST-supplemented and non-rbST-supplemented cows.” Groups of dairy processors filed suit to challenge the regulations alleging, among other claims, that the regulations violated their First Amendment right to Free Speech. After the district court ruled largely in favor of the State and against the processors, the Sixth Circuit weighed in.

In analyzing the dairy processors’ Free Speech claims, the Sixth Circuit distinguished the frameworks applicable to the two types of speech regulations at issue: the all-out prohibition on the dairy processors’ composition claims and the requirement that the processors’ production claims include a contiguous disclosure about the FDA’s findings. In regards to the former, the Court emphasized that, where commercial speech is not unlawful or misleading but is subject to prohibition, a three-part inquiry must be undertaken pursuant to Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 566 (1980).rtf. The Central Hudson inquiry asks 1) whether the asserted government interest is substantial; 2) whether the regulation directly advances that interest; and 3) whether the regulation is narrowly tailored. Each of the Central Hudson factors must be satisfied for a regulation to pass Constitutional muster. After applying the Central Hudson factors to the ODA prophylactic ban on composition claims, the Boggs Court reversed the district court’s grant of summary judgment in favor of the State on the basis that the prohibition was not narrowly tailored to further the State’s goals since the addition of a disclosure to the processors’ advertisements would dispel any confusion about the effects of rbST while causing minimal intrusion into the processors’ speech rights.

The Sixth Circuit next analyzed the constitutionality of the ODA disclosure regulations under the “reasonableness” standard set out in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 637 (1985).rtf. In doing so, the Court followed the lead of the Second and Tenth Circuits, see, e.g., Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113 (2d Cir. 2001); United States v. Wenger, 427 F.3d 840, 849 (10th Cir. 2005), and rejected the approach taken by the Eleventh Circuit, which had evaluated disclosure requirements under the tougher standard set forth in Central Hudson. See, e.g., Borgner v. Brooks, 284 F.3d 1204, 1210-13 (11th Cir. 2002). In applying Zauderer, the Court explained that disclosure requirements pose less risk to free speech than outright bans on speech and thus should be subjected to a more lenient review than called for by Central Hudson. Indeed, under Zauderer, disclosure regulations targeting inherently or potentially misleading speech should be upheld if they are reasonable, not unjustified, and not unduly burdensome. Under this framework, the Sixth Circuit affirmed the district court’s finding that the ODA disclosure regulations are reasonably related to the State of Ohio’s interest in preventing consumers from being deceived, but also held that the ODA’s requirement that the disclosures be contiguous to the production claims lacks a rational basis since the processors’ use of an asterisk would suffice to alert consumers to the disclosure without overburdening the processors.