McGeorge School of Law

Jacobs: A Commercial Speech Dichotomy

January 21, 2011

In What Abortion Disclosure Cases Say About the Constitutionality of Persuasive Government Speech on Product Labels, Professor Leslie Gielow Jacobs addresses the uncertain constitutional status of government compelled disclosure requirements imposed on commercial speech.

At the same time that members of the Supreme Court of the United States have suggested that disclosure requirements imposed on commercial speech for purposes other than preventing consumer deception may be constitutionally suspect, in the analogous context of the abortion service, the Court has applied deferential rational basis review to uphold selective and persuasive disclosure requirements that were imposed for purposes other than correcting potentially misleading speech.

This article identifies the symmetry between the two lines of cases, and points out that, so long as the informed consent to abortion precedent remains unchanged, it is controlling in the context of commercial speech disclosures. Deferential rational basis scrutiny applies to judicial evaluations of information disclosure mandates imposed on product labels and other types of commercial speech, even if the government's purpose is something other than preventing consumer deception and even if the information is obviously selected and presented to persuade.