Commercial warnings and disclosures, from cigarette warnings to nutrition labels, have long been staples in the government’s regulatory toolkit. But the constitutional status of such warnings and disclosures appears to be unsettled after National Institute of Family and Life Advocates v. Becerra (NIFLA). The Supreme Court’s analysis in NIFLA relied in part on the Zauderer test, which courts have used to analyze the constitutionality of commercial warnings and disclosures. Although Zauderer has been described as similar to a rational basis test, the Court’s application of it in NIFLA was hardly deferential. This Note first argues that courts should distinguish NIFLA’s application of heightened scrutiny in the typical case involving a commercial warning or disclosure. NIFLA’s application of searching review should be limited to cases where there is concern that the government is regulating speech based on the speaker’s identity, or to cases where the speech at issue is not commercial. This Note then considers in detail what the government should have to prove to satisfy the Zauderer test.
* Law Clerk, U.S. Court of Appeals for the Ninth Circuit; J.D., Stanford Law School, 2019. My deepest thanks to Dan Ho for his enthusiastic encouragement and insightful guidance. I also wish to thank Yoni Pomeranz, who improved this Note by disagreeing with me (as always), and the editors of the Stanford Law Review, especially Julia Fine, Nicole Collins, and Ethan Amaker. Finally, I thank Matt Villarreal, whose generosity and support makes everything possible. This Note reflects only my personal views and not the views of the U.S. Court of Appeals for the Ninth Circuit or any member thereof.