There should be no viable First Amendment objection to a requirement for an issuer to disclose the country of origin of a product’s materials—including, say, whether the product contains specified minerals from the [DRC] or an adjoining country, the site of a longstanding conflict financed in part by trade in those minerals. Such a requirement provides investors and consumers with useful information about the geographic origins of a product’s source materials. Indeed, our court, sitting en banc, recently relied on ‘the time-tested consensus that consumers want to know the geographical origin of potential purchases’ in upholding a requirement for companies to identify the source country of food products.
In American Meat Institute v. FDA, the full court split down largely ideological lines, with the court’s four active conservative judges dissenting over the majority’s application of a key 1986 Supreme Court precedent to provide a more relaxed First Amendment review of disclosure mandates.
Randolph and Sentelle, however, said that precedent, from the case Zauderer v. Office of Disciplinary Counsel attaches only to advertising and therefore “has no application to this case.” SEC disclosures, however important for investors, do not amount to advertising, the majority concluded.
The majority also inserted a couple acerbic literary references. To respond to Srinivasan’s argument, Randolph deployed a quote from Charles Dickens’ “A Tale of Two Cities”: “‘Whatever is is right’; an aphorism that would be as final as it is lazy, did it not include the troublesome consequence, that nothing that ever was, was wrong.”
Later in the opinion, the majority likens the SEC’s labeling to “governmental redefinition” such as “WAR IS PEACE” that litters George Orwell’s novel 1984.
The D.C. Circuit Decision in National Association of Manufacturers v. SEC is posted below.
Read More:
