Internation Dairy Foods Ass'n v. Amestoy

ALTIMARI, Circuit Judge:

Plaintiffs-appellants International Dairy Foods Association, Milk Industry Foundation (MIF), International Ice Cream Association, National Cheese Institute, Grocery Manufacturers of America, Inc. and National Food Processors Association (collectively “appellants” or “dairy manufacturers”) appeal from a decision of the district court (Murtha, C.J.), denying their motion for a preliminary injunction. 898 F.Supp. 246 (D.Vt.1995). The dairy manufacturers challenged the constitutionality of Vt. Stat. Ann. tit. 6, § 2754(c) which requires dairy manufacturers to identify products which were, or might have been, derived from dairy cows treated with a synthetic growth hormone used to increase milk production. The dairy manufacturers alleged that the statute violated the United States Constitution’s First Amendment and Commerce Clause.

Because we find that the district court abused its discretion in failing to grant preliminary injunctive relief to the dairy manufacturers on First Amendment grounds, we reverse and remand.

Background

The factual background to this case is capably described in the district court’s opinion, see 898 F.Supp. 246 (D.Vt.1995). We therefore summarize only those facts necessary to an understanding of bur disposition.

In 1993, the federal Food and Drug Administration (“FDA”) approved the use of recombinant Bovine Somatotropin (“rBST”) (also known as recombinant Bovine Growth Hormone (“rGBH”)), a synthetic growth hormone that increases milk production by cows. It is undisputed that the dairy products derived from herds treated with rBST are indistinguishable from products derived from untreated herds; consequently, the FDA declined to require the labeling of products derived from cows receiving the supplemental hormone.

In April 1994, defendant-appellee the State of Vermont (“Vermont”) enacted a statute requiring that “[i]f rBST has been used in the production of milk or a milk product for retail sale in this state, the retail milk or milk product shall be labeled as such.” Vt. Stat. Ann. tit. 6, § 2754(c). The State of Vermont’s Commissioner of Agriculture (“Commissioner”) subsequently promulgated regulations giving those dairy manufacturers who use rBST four labeling options, among them *70the posting of a sign to the following effect in any store selling dairy products:

rBST Information

THE PRODUCTS IN THIS CASE THAT CONTAIN OR MAY CONTAIN MILK FROM rBST-TREATED COWS EITHER (1) STATE ON THE PACKAGE THAT rBST HAS BEEN OR MAY HAVE BEEN USED, OR (2) ÁRE IDENTIFIED BY A BLUE SHELF LABEL LIKE THIS

[BLUE RECTANGLE]

• OR (3) A BLUE STICKER ON THE PACKAGE LIKE THIS. [BLUE DOT]

The United States Food and Drug Administration has determined that there is no significant difference between milk from treated and untreated cows. It is the law of Vermont that products made from the milk of rBST-treated cows be labeled to help consumers make informed shopping decisions.

(6 V.S.A. Section 2754)

Adopted Rules (rBST Notification and Labeling Regulations Relating to Milk and Milk Products) of Vermont Dep’t of Agriculture, Food and Markets, § 3.1b (“Vt.Regs.”). Failure to comply with the statute and companion regulations subjects manufacturers to civil, see Vt. Stat. Ann. tit. 9, ch. 63 (Consumer Fraud Act), § 2451 et seq. [Add. to Blue Br. 12-13], as well as criminal, see Vt. Stat. Ann. tit. 6, ch. 151 (Supervision, Inspection and Licensing of Dairy Operations), § 2671 et seq., penalties.

Appellants filed suit in April 1994, asserting that the statute was unconstitutional. In June 1995, the dairy manufacturers moved for preliminary injunctive relief, seeking to enjoin enforcement of the statute. The dairy manufacturers alleged that the Vermont statute (1) infringed their protected rights under the First Amendment to the Constitution and (2) violated the Constitution’s Commerce Clause, U.S. Const., Art. 1, § 8. Following an extensive hearing, the United States District Court for the District of Vermont (Mur-tha, C.J.), denied appellants’ motion. See 898 F.Supp. at 254. The dairy manufacturers now appeal.

Because we find that the dairy manufacturers are entitled to an injunction on First Amendment grounds, we do not reach their claims made pursuant to the Commerce Clause.

Discussion

Generally, preliminary injunctive relief is appropriate when the movant shows “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.” Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979) (per curiam); see also Union Carbide Agr. Prods. Co. v. Costle, 632 F.2d 1014, 1017 (2d Cir.1980) (“Before a preliminary injunction will be granted in this Circuit, it must pass one of two tests. Both require a showing of irreparable harm.”), cert. denied, 450 U.S. 996, 101 S.Ct. 1698, 68 L.Ed.2d 196 (1981). However, because the injunction at issue stays “government action taken in the public interest pursuant to a statutory ... scheme,” this Court has determined that the movant must satisfy the more rigorous “likelihood of success prong.” Able v. United States, 44 F.3d 128, 131-32 (2d Cir.1995); see Plaza Health Laboratories, Inc. v. Perales, 878 F.2d 577, 580 (2d Cir.1989).

We review the district court’s denial of a preliminary injunction for an abuse of discretion, see Coca-Cola Co. v. Tropicana Prods., Inc., 690 F.2d 312, 315 (2d Cir.1982), and will reverse the district court only if it relied on clearly erroneous findings of fact, misapprehended the law, or erred in formulating the injunction, see Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir.1994).

1. Irreparable Harm

Focusing principally on the economic impact of the labeling regulation, the district court found that appellants had not demonstrated irreparable harm to any right pro*71tected by the First Amendment. We disagree.

Irreparable harm is “injury for which a monetary award cannot be adequate compensation.” See Jackson Dairy, Inc., 596 F.2d at 72. It is established that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Bums, 427 U.S. 347, 373, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976); see Paulsen v. County of Nassau, 925 F.2d 65, 68 (2d Cir.1991) (“[sjince prohibitions on leafletting and dissemination of religious views contravene core First Amendment values” irreparable harm necessarily established); Deeper Life Christian Fellowship, Inc. v. Board of Ed., 852 F.2d 676, 679 (2d Cir.1988) (depriving church of location for religious services for substantial period of time constituted irreparable harm). Because the statute at issue requires appellants to make an involuntary statement whenever they offer their products for sale, we find that the statute causes the dairy manufacturers irreparable harm.

Quoting Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989), the district court rejected this claim, stating that:

“the assertion of First Amendment rights does not automatically require a finding of irreparable injury, thus entitling a plaintiff to a preliminary injunction if he shows a likelihood of success on the merits.” 868 F.2d at 72-73.
Ordinarily, it is the purposeful suppression of speech which constitutes irreparable harm. Compliance with the Vermont Labeling Law does not prohibit the plaintiffs from disseminating a message. Instead, it requires the plaintiffs to truthfully disclose the method used in producing their product. Under these circumstances, the Court does not find that the plaintiffs’ assertion of a First Amendment violation leads ineluctably to the conclusion that they will suffer irreparable harm.

898 F.Supp. at 251-52 (citations omitted).

We conclude, however, that the manufacturers have carried their burden of establishing irreparable harm. The wrong done by the labeling law to the dairy manufacturers’ constitutional right not to speak is a serious one that was not given proper weight by the district court. See Wooley v. Maynard, 430 U.S. 705, 714, 97 S.Ct. 1428, 1435, 51 L.Ed.2d 752 (1977) (“We begin with the proposition that the right of freedom of thought protected by the First Amendment against state action includes both the right to speak freely and the right to refrain from speaking at all.”); West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 633, 63 S.Ct. 1178, 1183, 87 L.Ed. 1628 (1943) (“involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence”); see also Harper & Row, Publishers, Inc. v. Nation Enter., 471 U.S. 539, 559, 105 S.Ct. 2218, 2230, 85 L.Ed.2d 588 (1985) (recognizing, along with freedom to express one’s views publicly, “‘concomitant freedom not to speak publicly’ ”) (quoting Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 348, 296 N.Y.S.2d 771, 778, 244 N.E.2d 250, 255 (1968)).

The right not to speak inheres in political and commercial speech alike, see Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651, 105 S.Ct. 2265, 2281-82, 85 L.Ed.2d 652 (1985); cf. National Comm’n on Egg Nutrition v. Federal Trade Comm’n, 570 F.2d 157, 160 (7th Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 86, 58 L.Ed.2d 113 (1978), and extends to statements of fact as well as statements of opinion, see Riley v. National Federation of the Blind, 487 U.S. 781, 797-98, 108 S.Ct. 2667, 2677-78, 101 L.Ed.2d 669 (1988). If, however, as Vermont maintains, its labeling law compels appellants to engage in purely commercial speech, the statute must meet a less rigorous test. See Central Hudson Gas & Elec. Corp. v. Public Serv. Commission, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980) (“The Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression.”). The dairy manufacturers insist that the speech is not purely commercial because it compels them “to convey a message regarding the significance of rBST use that is ‘expressly contrary to’ their views.” [Blue br. at 21] (quoting Pacific Gas & Elec. Co. v. Public Utilities *72Comm’n, 475 U.S. 1, 16 n. 12, 106 S.Ct. 903, 911 n. 12, 89 L.Ed.2d 1 (1986) (plurality)). Agreeing with Vermont, the district court found that the speech was commercial in nature. See 898 F.Supp. at 253.

We need not resolve this controversy at this point; even assuming that the compelled disclosure is purely commercial speech, appellants have amply demonstrated that the First Amendment is sufficiently implicated to cause irreparable harm. See, e.g., Cal-Almond, Inc. v. United States Dep’t of Agriculture, 14 F.3d 429, 434, (9th Cir.1993) (First Amendment implicated by mandatory assessment on almond handlers to fund almond marketing program); United States v. Frame, 885 F.2d 1119, 1132-33 (3d Cir.1989) (federal Beef Promotion & Research Act implicated beef producer’s right to refrain from speaking because it required that producer help fund commercial message to which producer did not necessarily subscribe), cert. denied, 493 U.S. 1094, 110 S.Ct. 1168, 107 L.Ed.2d 1070 (1990). Cf. National Comm’n on Egg Nutrition, 570 F.2d at 164 (modifying remedial order provision that required egg producers “to argue the other side of the controversy, thus interfering unnecessarily with the effective presentation of the pro-egg position.”). The dairy manufacturers have clearly done more than simply “assert” their First Amendment rights: The statute in question indisputably requires them to speak when they would rather not. See 898 F.Supp. at 251-52. Because compelled speech “eontravene[s] core First Amendment values,” appellants have “satisfied the initial requirement for securing injunctive relief.” Paulsen, 925 F.2d at 68.

In our view, Hohe v. Casey, 868 F.2d 69, 69 (3d Cir.), cert. denied, 493 U.S. 848, 110 S.Ct. 144, 107 L.Ed.2d 102 (1989), relied on by the district court, is not to the contrary. There, the Third Circuit held that the collection of fair share fees from non-Union members did not constitute irreparable harm. 868 F.2d at 73. However, the constitutional injury alleged in Hohe bears little resemblance to the compelled speech at issue here; the nonUnion members alleged that the deduction of fees from their compensation deprived them “of money they might use to support their own political, ideological, or other purposes.” Id. As the Third Circuit found, monetary damages or restitution could remedy that ill. Id. More importantly, Hohe is distinct from the case at hand in that the Vermont statute certainly results in “the ‘direct penalization, as opposed to incidental inhibition, of First Amendment rights [which] constitutes irreparable injury.’ ” Hohe, 868 F.2d at 73 (quoting Cate v. Oldham, 707 F.2d 1176, 1188 (11th Cir.1983)).

Because the statute at hand unquestionably implicates the dairy manufacturers’ speech rights, we reject the district court’s conclusion that the disclosure compelled by Vt. Stat. Ann. tit. 6, § 2754(c), is not a “loss of First Amendment freedoms,” Elrod, 427 U.S. at 373, 96 S.Ct. at 2690, amounting to irreparable harm.

2. Likelihood of Success on the Merits

It is not enough for appellants to show, as they have, that they were irreparably harmed by the statute; because the dairy manufacturers challenge government action taken in the public interest, they must also show a likelihood of success on the merits. We find that such success is likely.

In Central Hudson, the Supreme Court articulated a four-part analysis for determining whether a government restriction on commercial speech is permissible. 447 U.S. at 566, 100 S.Ct. at 2351. We need not address the controversy concerning the nature of the speech in question — commercial or political — because we find that Vermont fails to meet the less stringent constitutional requirements applicable to compelled commercial speech.

Under Central Hudson, we must determine: (1) whether the expression concerns lawful activity and is not misleading; (2) whether the government’s interest is substantial; (3) whether the labeling law directly serves the asserted interest; and (4) whether the labeling law is no more extensive than necessary. See id.; see also Edenfield v. Fane, 507 U.S. 761, 766-67, 113 S.Ct. 1792, 1798, 123 L.Ed.2d 543 (1993). Furthermore, the State of Vermont bears the burden of justifying its labeling law. See Edenfield, *73507 U.S. at 770-71, 113 S.Ct. at 1800; Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 2882 n. 20, 77 L.Ed.2d 469 (1983). As the Supreme Court has made clear, “[t]his burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800; see also Ibanez v. Florida Dep’t of Business and Prof. Reg., Board of Accountancy, 512 U.S. 136, -, 114 S.Ct. 2084, 2089, 129 L.Ed.2d 118 (1994) (“State’s burden is not slight”).

In our view, Vermont has failed to establish the second prong of the Central Hudson test, namely that its interest is substantial. In making this determination, we rely only upon those interests set forth by Vermont before the district court. See Edenfield, 507 U.S. at 766-67, 113 S.Ct. at 1798 (“[T]he Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions.”). As the district court made clear, Vermont “does not claim that health or safety concerns prompted the passage of the Vermont Labeling Law,” but instead defends the statute on the basis of “strong consumer interest and the public’s ‘right to know’....” 898 F.Supp. at 249. These interests are insufficient to justify compromising protected constitutional rights.1

Vermont’s failure to defend its constitutional intrusion on the ground that it negatively impacts public health is easily understood. After exhaustive studies, the FDA has “concluded that rBST has no appreciable effect on the composition of milk produced by treated cows, and that there are no human safety or health concerns associated with food products derived from cows treated with rBST.” 898 F.Supp. at 248. Because bovine somatotropin (“BST”) appears naturally in cows, and because there are no BST receptors in a cow’s mammary glands, only trace amounts of BST can be detected in milk, whether or not the cows received the supplement. Id. Moreover, it is undisputed that neither consumers nor scientists can distinguish rBST-derived milk from milk produced by an untreated cow. Id. at 248-49. Indeed, the already extensive record in this case contains no scientific evidence from which an objective observer could conclude that rBST has any impact at all on dairy products. It is thus plain that Vermont could not justify the statute on the basis of “real” harms. See Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800.

We do not doubt that Vermont’s asserted interest, the demand of its citizenry for such information, is genuine; reluctantly, however, we conclude that it is inadequate. We are aware of no case in which consumer interest alone was sufficient to justify requiring a product’s manufacturers to publish the functional equivalent of a warning about a production method that has no discernable impact on a final product. See, e.g., Ibanez, 512 U.S. at -, 114 S.Ct. at 2090 (invalidating state requirement that Certified Financial Planner (“CFP”) disclose in advertisement that CFP status was conferred by unofficial private organization despite unsubstantiated claim that public might otherwise be misled by CFP’s advertisement). Cf. Riley, 487 U.S. at 797-98, 108 S.Ct. at 2677-78 (holding unconstitutional state requirement that professional fundraisers disclose to prospective donors factual information concerning the percentage of contributions actually passed on to charities notwithstanding the fact that prospective donors might find the *74truthful information relevant and persuasive).

Although the Court is sympathetic to the Vermont consumers who wish to know which products may derive from rBST-treated herds, their desire is insufficient to permit the State of Vermont to compel the dairy manufacturers to speak against their will. Were consumer interest alone sufficient, there is no end to the information that states could require manufacturers to disclose about their production methods. For instance, with respect to cattle, consumers might reasonably evince an interest in knowing which grains herds were fed, with which medicines they were treated, or the age at which they were slaughtered. Absent, however, some indication that this information bears on a reasonable concern for human health or safety or some other sufficiently substantial governmental concern, the manufacturers cannot be compelled to disclose it. Instead, those consumers interested in such information should exercise the power of their purses by buying products from manufacturers who voluntarily reveal it.

Accordingly, we hold that consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement, see Riley, 487 U.S. at 797-98, 108 S.Ct. at 2677-78 (compelled disclosure of “fact” is no more acceptable than compelled disclosure of opinion), in a commercial context. See, e.g., United States v. Sullivan, 332 U.S. 689, 693, 68 S.Ct. 331, 334, 92 L.Ed. 297 (1948) (upholding federal law requiring warning labels on “harmful foods, drugs and cosmetics”) (emphasis added); see also Zauderer, 471 U.S. at 651, 105 S.Ct. at 2282 (disclosure requirements are permissible “as long as [they] are reasonably related to the State’s interest in preventing deception of consumers.”); In re R.M.J., 455 U.S. 191, 201, 102 S.Ct. 929, 936, 71 L.Ed.2d 64 (1982) (“warning[s] or diselaimer[s] might be appropriately required ... in order to dissipate the possibility of consumer confusion or deception.”); Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977) (state bar association could not ban advertising that was neither misleading nor deceptive); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-72, 96 S.Ct. 1817, 1830-31, 48 L.Ed.2d 346 (1975) (regulation aimed at preventing deceptive or misleading commercial speech would be permissible). Because Vermont has demonstrated no cognizable harms, see Edenfield, 507 U.S. at 770-71, 113 S.Ct. at 1800, its statute is likely to be held unconstitutional.

Conclusion

Because appellants have demonstrated both irreparable harm and a likelihood of success on the merits, the judgment of the district court is reversed, and the case is remanded for entry of an appropriate injunction.

. Although the dissent suggests several interests that if adopted by the state of Vermont may have been substantial, the district court opinion makes clear that Vermont adopted no such rationales for its statute. Rather, Vermont’s sole expressed interest was, indeed, "consumer curiosity.” The district court plainly stated that, "Vermont takes no position on whether rBST is beneficial or detrimental. However," the district court explained, “Vermont has determined that its consumers want to know whether rBST has been used in the production of their milk and milk products.” 898 F.Supp. at 252 (emphasis added). It is clear from the opinion below that the state itself has not adopted the concerns of the consumers; it has only adopted that the consumers are concerned. Unfortunately, mere consumer concern is not, in itself, a substantial interest.