Thursday, October 08, 2009

The interaction between commercial speech regulation and economic regulation

I've long been convinced that full First Amendment protection for commercial speech would unravel post-Lochner economic regulations (see, for example, the recent lawsuit against FDA labeling requirements, which affect both speech and availability of drugs). Here's another example, where calorie labeling is designed to--and does--affect food sellers' behavior as much or more than that of the consumers to whom it is ostensibly directed.
But getting individuals to recalculate calories at the cash register was never the main point of the rules ....

New York City was ridiculed when it banned trans fats .... But ... the real impact was on McDonalds and the other chains (yes, Dunkin Donuts) that, once they went to the expense of complying with New York's rules, would likely change production for the whole country or much of it.

Calorie labeling has already had remarkable impact on the foods that fast-food companies make and serve. Yuppie avatar Starbucks immediately changed its default milk from whole to 2 percent, so it wouldn't have to admit that a Frappuccino could amount to practically as many calories as you should eat in a whole day; it recently removed high-fructose corn syrup from its baked goods, though unfortunately didn't make them lower-calorie--that's said to be in the works--or better-tasting, which I hope is in the works too.

And the big players, the ones health departments hope will change, are in fact changing. Just this week, Nonas told me--the day after the Times story came out--Burger King began a new ad campaign telling how customers could eat a full meal for 600 calories or less. McDonalds took .7 ounces and 70 calories out of its standard portion of french fries. Dunkin Donuts introduced an egg-white breakfast. KFC put grilled skinless chicken on its menu--not something anyone expected to see at KFC.
Labeling requirements affect what gets offered for sale in the first place. Commercial speech and other economic regulations are inextricably intertwined.

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