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Can Climate Change Labels Be “Purely Factual and Uncontroversial”?

May 2021

Citation: 51 ELR 10380

Issue: 5

Author: Barak Kamelgard

With every passing day, the dangers of climate change are becoming more and more obvious. One of the myriad solutions proposed to combat this crisis is the addition of warning and informational labels to gas pumps, airline tickets, energy bills, and even food and drinks, detailing the effects our purchases have on the climate and quantifying the amount each purchase has in terms of emissions. Yet, any required labels would need to meet the First Amendment standard for government-compelled disclosures in commercial speech, set forth by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio. To be constitutionally permitted, such labels need to be “purely factual and uncontroversial.”If these labels get mandated at the state and federal levels, their legality will certainly be litigated. Yet, there has not been a single court decision, at any level, about any form of government-compelled disclosures regarding climate change under the Zauderer standard. Consequently, it is uncertain how any given court, including the Supreme Court, would rule on this issue. This Comment analyzes what it means to be “purely factual and uncontroversial” under the Zauderer standard, and what the answer means for prospective climate change-related disclosures thereunder.

Barak Kamelgard has a J.D. from University of California, Los Angeles School of Law, and is currently an L.L.M. candidate at Lewis & Clark Law School.

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