Lactose’s Intolerance: The Role of Manufacturers’ Rights and Commercial Free Speech in Big Dairy’s Fight to Restrict Use of the Term “Milk”

Authors

Kathleen Justis

Abstract

This note examines the relationship between restrictions on commercial speech and manufacturers’ First Amendment right to describe their products to consumers, with a focus on the DAIRY PRIDE Act. It argues that broad, content-based restrictions of commercial speech, like that proposed in the DAIRY PRIDE Act, likely impose unconstitutional limitations on manufacturers’ First Amendment right to freedom of speech. This note recommends that both Congress and the FDA should refrain from passing a statute or promulgating a regulation like the DAIRY PRIDE Act. Rather, it proposes that adding rules to control the proportions and location of disclaimers on product labels and in advertising would serve the government’s stated purpose without implicating the level constitutional scrutiny triggered by content-based speech restrictions.

Recommended Citation

Kathleen Justis, Lactose’s Intolerance: The Role of Manufacturers’ Rights and Commercial Free Speech in Big Dairy’s Fight to Restrict Use of the Term “Milk”, 84 Brook. L. Rev. (2019).
Available at: https://brooklynworks.brooklaw.edu/blr/vol84/iss3/7