- - Wednesday, March 27, 2013

The U.S. Food and Drug Administration (FDA) made national headlines when, following legislation passed by Congress in 2009, it sought to compel cigarette manufacturers to devote half of the front and back of each pack to health warnings and graphic images of potential damage, such as diseased lungs. At first glance, many would argue that this is beneficial for people. Many countries have already adopted similar regulations, but are such regulations constitutional? Even if they are, is there any evidence that such speech regulations benefit consumers?

On the question of constitutionality, the verdict is in. In November 2011, a federal court struck down the FDA regulations as a violation of the First Amendment. On March 19, Attorney General Eric H. Holder Jr. said that the government would not appeal the decision to the Supreme Court.The government’s decision not to appeal the judgment is a welcome recognition that mandated speech is at odds with First Amendment concerns. There is no fine print in the First Amendment to the Constitution. No conditions impinge on freedom of speech, which includes the right to decide what not to say.Despite the First Amendment’s clear language, for nearly 80 years of the 221-year life of the Bill of Rights, lawmakers have restricted the speech of sellers. Moreover, courts have frequently acquiesced. Lawmakers and judges have nullified the First Amendment based only on their judgments that the benefits of speech restrictions will outweigh the costs.

This brings us to the second question. Is there evidence that mandatory disclaimers work? A recent issue of the Journal of Public Policy & Marketing published the results of an experiment we conducted to measure the effects of mandatory disclaimers on consumers’ decisions. Our fieldworkers showed two advertisements for dentists offering implant dentistry to 317 people who were recruited in a Florida shopping mall. All subjects were shown an ad for a dentist who made no claim to have credentials for performing implant dentistry and another ad for a dentist certified by the American Academy of Implant Dentistry (AAID). Half of the subjects were shown a version of the credentialed dentist’s ad that included a disclaimer that the state of Florida had mandated. The disclaimer stated that the American Dental Association did not recognize the AAID as “a bona fide specialty accrediting organization.”Our fieldworkers asked the subjects which dentist they would recommend to a friend in need of implant dentistry services. The subjects exposed to the mandatory disclaimer were more likely to recommend the dentist without implant dentistry credentials. Moreover, they drew false and damaging inferences about the credentialed dentist, apparently believing they were being warned that there was something suspect about the credentials. Our findings convinced a Florida court that the disclaimer was unjustified.Was the Florida disclaimer unusual in causing harm to consumers? No. Quite the opposite. Previously published experiments show that admonishments to change or avoid behaviors typically have effects opposite to the original intention. For example, in a laboratory experiment, 155 subjects exposed to an advertisement - a picture of a bottle or can containing an alcoholic beverage with a label - with the U.S. surgeon general’s warning displayed rated benefits as greater and risks as lower than subjects who were given the advertisement without the warning. In addition, male subjects exposed to the warning reported higher drinking intentions than those who were not.Indeed, all of the 18 experimental studies we found providing evidence relevant to the effects of mandatory disclaimers indicated they confuse people. Additionally, in all of the 15 studies that examined perceptions, attitudes or decisions, the disclaimers were either ineffective or harmful.Our examination of the evidence has found no support for the idea that governments can help consumers by imposing speech mandates. Subjecting the Bill of Rights to even properly conducted cost-benefit analysis is, however, surely contrary to the intentions of the Framers, who sought to protect hard-won rights in perpetuity. The Framers’ understanding of human nature has stood the test of time.Free speech is the right of every American. There is no reason - under the Constitution or the facts - to deny that right to sellers.

J. Scott Armstrong is a professor at the University of Pennsylvania and author of “Long-Range Forecasting” (Wiley-Interscience, 1985).

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