Page 301 - The Handbook of Persuasion and Social Marketing

Social Marketing and the Law 277

For example, the FTC ordered the Egg Commission to include a statement
in future advertising that many medical experts believe increased con-
sumption of dietary cholesterol, including that in eggs, may increase the
risk of heart disease. Although the court recognized that such a statement
could be necessary to refute longstanding past deception, it found little
past deception because the campaign was relatively new. Therefore, it re-
versed the FTC requirement that the statement be included. The court felt
a more narrowly tailored remedy was appropriate. Rather than requiring
the Egg Commission to present a counterargument to its position, the
court felt that merely requiring it to disclose that experts disagreed and it
was presenting its side of the controversy was sufficient to prevent decep-
tion (National Commission on Egg Nutrition v. FTC, 1977).
The U.S. Supreme Court has repeatedly noted that factual disclosure
requirements deserve less scrutiny than speech restrictions because factual
information disclosure is consistent with First Amendment interests in
protecting the flow of accurate information. Therefore, the court does not
apply the Central Hudson test to required disclosures but rather only re-
quires that such disclosures be reasonably related to the state’s interest in
preventing deception. This approach is intended to ensure that disclosure
requirements are not unduly burdensome and do not chill commercial
speech. For this reason, the court upheld a regulation requiring that at-
torneys advertising contingency fees disclose that the client would be lia-
ble for costs if the suit were not successful (Zauderer v. Office of Disciplinary
Counsel, 1985).
The U.S. Supreme Court reaffirmed these principles in 2010 when it
upheld a similar requirement that law firms advertising debt relief services
disclose that they also help people file for bankruptcy (Milavetz, Gallup &
Milavetz P.A. v. United States, 2010). The Second Circuit Court of Appeals
applied this reasoning to information disclosures not related to deception
in upholding a requirement that sellers of mercury-containing lights dis-
close that fact on their packaging and further disclose that consumers
should dispose of the lamps as hazardous waste. The court found that the
disclosure requirement was reasonably related to the state’s interest in pro-
tecting the environment (National Electrical Manufacturers Association v.
Sorrell, 2001).
Affirmative text and graphic information disclosures in the tobacco reg-
ulations proposed by the U.S. Food and Drug Administration (FDA) are
among the primary issues currently facing legal challenge by the tobacco
industry. The first appellate court to consider these proposals has upheld
both the text warnings and (with one dissent) the pictorial warnings that
together will cover about half the cigarette package as properly compelled