1ST AMDT and Marketing - USDA required disclosures of facts, for reasons unrelated to misleading consumers

Adler @ Volokh:

The question in AMI should no be whether the USDA gets to avail itself of an easier constitutional test but whether the government has any interest that is substantial enough to justify this labeling requirement — interests that go beyond simply satisfying consumer curiosity.  For reasons I discuss in this essay on GMO labeling and this book chapter on nanotechnology labeling (and an as-yet-to-be-completed article manuscript on “Compelled Commercial Speech and the Consumer Right to Know”) consumer curiosity or some asserted “right to know” is insufficient to satisfy Central Hudson, not least because such a standard is infinitely malleable and would justify any potential disclosure requirement, effectively eliminating constitutional protection for compelled commercial speech. But many other government interests, such as protecting consumers from harm, protecting public health, or facilitating other regulatory goals, are often sufficient.

One issue Adler identifies is whether disclosure requirements must simply be non-frivolous, or if there must be something more. 

Adler highlights the below from the D.C. Circuit opinion, and questions whether this is sufficient to uphold the federal government disclosure requirement:

we can see non-frivolous values advanced by the information. Obviously it enables a consumer to apply patriotic or protectionist criteria in the choice of meat. And it enables one who believes that United States practices and regulation are better at assuring food safety than those of other countries, or indeed the reverse, to act on that premise.