Apparently it is possible for consumers to know too much about the products they buy and use everyday. After all, that is precisely the message being sent by a growing number of restrictions and lawsuits that target advertisements for stating — wait for it — just the facts. That’s right, for products ranging from food and drugs to alcohol and tobacco, companies are increasingly being forced not to tell the public the truth for fear of being hit with draconian penalties simply because those facts are packaged in a 30-second television spot or a glossy magazine layout.
In an age when consumers are faced with more choices than ever at their local supermarkets, pharmacies and restaurants, those same consumers are, all too often, prevented from ever learning useful information that could help them make educated decisions about what to buy and why to buy it. Instead, special interest groups and even the government, itself, are hiding these facts after deeming them too dangerous for public consumption based on the fear that individuals might actually be persuaded to make, what the supposed defenders of the "public interest" consider to be, "ill-advised" purchases based on "politically incorrect" medical and scientific evidence.
Take, for example, the pharmaceutical industry. It is hardly a revelation that many medications can be and often are used to treat ailments beyond the scope of their original approvals from the federal Food and Drug Administration. These "off-label" applications are frequently supported by extensive medical research demonstrating their effectiveness, but the drug companies cannot promote these "unapproved" uses to either physicians or the general public because the FDA has banned such advertisements. According to the FDA, even when scientific evidence demonstrates the advantages of "off-label" treatments, it is simply impermissible to fully inform patients and their doctors of those new and innovative medical methods because consumers might actually want to put the drugs to use for those tried and tested purposes.
The same suppression of truthful information frequently occurs with respect to facts about any number of products singled out as unhealthy "vices." Most recently, even food has become a vice — with lawsuits hinging on the advertising of what exactly is in the foods we eat.
McDonald’s is the prime example. In a lawsuit brought by overweight teenagers, who consumed frequent and excessive amounts of fast food fare, the amended complaint faulted the Golden Arches for telling consumers what ingredients were in the "billions" of hamburgers — not to mention the fries and shakes — Ronald and friends served worldwide. According to the lawsuit, informing consumers about those facts, such as the fat content of the beef and the use of vegetable oil for frying, had the effect of duping the teens into believing they could eat fast food often and still maintain a healthy lifestyle. In other words, following the lawsuit’s logic, consumers are better off knowing nothing about what they eat because, at least, then they can’t be led toward the "wrong" nutritional conclusion — the reason for keeping consumers totally in the dark.
The same rationale has been used over and over again with tobacco. Even today, despite evidence that the adverse health effects of tobacco vary widely depending upon what product is used and how it is consumed, tobacco companies cannot promote "lower-risk" tobacco products and compare the safety of smoking versus chewing or high tar versus low tar for fear of huge liability to consumers who decided to take a chance — albeit a "lower" one — by buying and using a "safer" tobacco product.
All this means that, too often, scientific facts aren’t making their way into America’s consumer consciousness. What’s worse, many times the government has been a willing co-conspirator in the push to prevent companies from distributing truthful information about products that are legally sold but still considered taboo.
A decade ago, it took a decision from the U.S. Supreme Court before brewing companies were allowed to inform consumers about the alcohol content of beer through labeling. All the while, the federal government argued that consumers shouldn’t be able to know how strong or weak different beers really were because such admittedly factual information could promote alcohol strength wars and lead to increased drunkenness and alcoholism.
This belief that consumers have to be protected from learning facts that could lead them to make the "wrong" choices is an anathema to both the First Amendment and our free market system. So long as the information is truthful, it is inconceivable that consumers should be entitled to less information, rather than more. After all, not only are sound economic choices premised on an individual’s knowledge of the available alternatives and his or her informed calculation as to the costs and benefits of the purchase, but the Constitution, through the First Amendment, is also supposed to protect the availability of that important truthful speech about lawful products.
This fundamental right to inform others about the facts does not depend on whether that information is revealed through a front-page news story or in a national advertising campaign. Instead, in a market system, where "the buyer must beware," it only matters that the consumers can learn the facts, not where or how they learned them.
There can be no other answer in a free and open society. For as the Supreme Court stated nearly three decades ago, "[i]t is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us." Thanks to the First Amendment, we should all be able to make our own individual, fully informed consumer decisions — based on the facts we learn through "uninhibited, robust, and wide open" debate.
If the special interests and our government will only let us.