Making Sense of Recent Legal History

by: Posted on: December 08, 2013

Editor’s Note: Did you know that our Supreme Court ruled—seventeen years ago—that corporations’ right to negative speech trumps citizens’/consumers’ right to know what they’re ingesting? Learn how it went down.

By Alex Valentine

The Story of a Vermont Labeling Law and a Corporation’s Claim to Free Speech


The First Amendment, in addition to being considered an essential right, has also been one of the most fiercely protected and legally disputed in America. Factors such as the proliferation of digital communications, growing corporate entities and the development of new technologies are bound to make protecting this right even more complicated in the years to come.

In fact, they already have. Exemplifying many of these factors is the 1996 federal Court of Appeals case International Dairy Foods Association v. Jeffrey Amestoy, Chief Justice of Vermont.

While the freedom to write, speak, and believe is regarded as a fundamental right and foundational to the Bill of Rights, fewer know that the First Amendment also protects negative free speech. Negative free speech was added by the Supreme Court as a provision to guarantee the freedom of those who wish to refrain from public speech. In the case of International Dairy Foods, this protection of negative free speech was evoked in a struggle between the free speech of corporations and the individuals’ right to know what they are consuming.  

In 1996 a labeling law was passed in Vermont that would require dairy products produced from cows treated with recombinant bovine somatotropin (rBST) to be labeled as such. rBST is a genetically engineered growth hormone. Currently the Monsanto Company is the only producer of rBST that is FDA-approved.

This law aimed to provide customers with factual information that would assist them in making informed buying decisions. The proposed labeling technique would have required producers and/or retailers to label rBST-containing milk products. In addition to the labeling, Vermont retailers would be responsible for displaying a sign explaining the labels and that the FDA had determined no significant difference between milk from rBST treated and non-treated herds.

Together the International Dairy Foods Association, Milk Industry Foundation, International Ice Cream Association, National Cheese Institute, Grocery Manufacturers of America Inc. and the National Food Processors Association appealed the law. Their legal teams argued that the labeling law infringed upon their rights to negative free speech. The court then was forced to choose whether consumers’ right to factual information trumped corporations’ rights to negative free speech.

The court ultimately ruled in favor of the dairy industry corporations, stating that the statute would mandate unconstitutional acts of speech. Regardless of if the Court was sympathetic to consumer interests, the desire of Vermont consumers to know which products originate from rBST-treated cows was ultimately insufficient.

The Court’s rationale was two-fold. First, because the FDA had already declared the use of rBST in dairy cows to be safe, the Court of Appeals ruled safety was not of concern. It should be noted that this logic assumes that the opinions of the FDA are not to be questioned. Second, the Vermont Labeling Law was struck down on the basis that if it were to be upheld, consumers’ interest in information related to production methods would continue to push further and eventually become unreasonable. The court justified this by saying that consumers genuinely interested in this type of information should seek products that are labeled voluntarily.

International Dairy Foods is a case that is a little old and perhaps a little unknown. However, it is worth pursuing an understanding of this case if only for a better understanding of one of our most principal and protected freedoms. In its essence, International Dairy Foods represents a conflict between corporate rights to negative free speech and the individual right to be an informed citizen. The outcome of this case marks a moment in which corporations’ constitutional rights chipped away at those of individual people. Despite the years that have passed since this decision in 1996, this case begs the very topical question: should corporate entities receive the same rights as humans?

Photo: Kathryn Kozowski


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