Question: INTERNATIONAL DAIRY FOODS ASSOCIATION v. AMESTOY, 92 F.3D 67 (2D CIR. 1996)

FACTS In 1993, the FDA approved the use of recombinant Bovine Somatotropin (rBST), a synthetic growth hormone that increases milk production by cows. Because the FDA had found, "after exhaustive tests," that dairy products derived from herds treated with rBST were indistinguishable from products derived from untreated herds and that rBST posed no human safety or health concerns, the FDA declined to require labeling of products derived from cows treated with rBST. In 1994, the state of Vermont enacted a statute requiring that milk or milk products derived from treated herds be labeled as such. The state imposed its requirement "to help consumers make informed shopping decisions." International Dairy Foods Association, Milk Industry Foundation, International Ice Cream Association, National Cheese Institute, Grocery Manufacturers of America, Inc., and National Food Processors Association (collectively, the "plaintiffs") filed suit, arguing that the statute violated their First Amendment commercial free speech rights by compelling them to speak against their will. They requested a preliminary injunction. The trial court denied the injunction and the plaintiffs appealed. DECISION The U.S. Court of Appeals determined that a preliminary injunction should issue because the plaintiffs had shown:

(1) irreparable harm and

(2) a likelihood of success on the merits. Although First Amendment claims usually center on the purposeful suppression of speech, the First Amendment also encompasses the right not to speak. The court concluded that compelling the plaintiffs to label their products, albeit truthfully, caused them irreparable harm. The appellate court also found that the plaintiffs had shown a likelihood of success on the merits.

The court applied the Supreme Court's Central Hudson test for determining whether a restriction on commercial speech is constitutional:

(1) whether the expression concerns lawful activity and is not misleading;

(2) whether the government's interest is substantial;

(3) whether the disputed regulation directly serves that asserted interest; and

(4) whether the regulation is no more extensive than necessary. The appellate court found that the Vermont regulation failed the second prong of the test. The trial court had found that Vermont "does not claim that, health or safety concerns prompted the passage of the Vermont Labeling Law," but instead defended the statute on the grounds of "strong consumer interest and the public's ‘right to know' ...." The appellate court found these interests "insufficient to justify compromising protected constitutional rights." The court concluded that it was "aware of no case in which consumer interest alone was sufficient to justify requiring a product's manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product." Consumers interested in such information should, in the court's view, "exercise the power of their purses by buying products from manufacturers who voluntarily reveal it." The appellate court thus remanded the case to the trial court for entry of a preliminary injunction enjoining enforcement of the statute.