Indiana Int’l & Comp. Law Review
Volume 30 Number 1 2019

ARTICLES

THE ROLE OF INTERNATIONAL CONSUMER POLICY IN

FOSTERING INNOVATION AND EMPOWERING CONSUMERS

TO MAKE INFORMED CHOICES

KARA D. NOTTINGHAM AND IZABEL CARDOZO*

TABLE OF CONTENTS

I. Introduction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. The Meaning of the Consumer Right to Information in the

Age of Innovation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. The Foundations of the Right to Information. . . . . . . . . . . . . . . . . . . . 2
B. Respect for Autonomy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. The Political Origins of Consumer Rights.. . . . . . . . . . . . . . . . . . . . . . 6
D. The United Nations Guidelines for Consumer Protection. . . . . . . . . . 7

1. Background.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2. Revision of the Guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

III. Different Policy Approaches to the Provision of Information
to Consumers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Comparative Law Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. Commercial Speech in the United States. . . . . . . . . . . . . . . . . . . 15
2. Commercial Speech in Canada. . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. Freedom of Speech in Germany.. . . . . . . . . . . . . . . . . . . . . . . . . . 19
4. Commercial Speech in the European Union. . . . . . . . . . . . . . . . . 20
5. Protection of Consumer Information in Brazil. . . . . . . . . . . . . . . 24

IV. Propelling Innovation Through Information.. . . . . . . . . . . . . . . . . . . . . . . . 26
A. Providing Scientific Information to Consumers. . . . . . . . . . . . . . . . . 26
B. Education Campaigns: A New Way of Communicating

with Consumers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
V. Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

* Kara D. Nottingham and Izabel Cardozo are Counsel and Assistant General Counsel,

respectively, at Philip Morris International in Lausanne, Switzerland. Kara holds a JD from William

& Mary School of Law in Williamsburg, Virginia (USA), and LLM in International Dispute

Settlement from the Graduate Institute – University of Geneva (Switzerland). Izabel holds a law

degree from the University of the State of Rio de Janeiro – UERJ and a LLM in Constitutional Law

from The Catholic University of Rio de Janeiro – PUC/RJ (Brazil). This paper represents the views

of the authors and not necessarily the organization where they work.



2 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

I. INTRODUCTION

This study addresses the topic of consumer policy from an international law
perspective; exploring the content and evolving meaning of the right to
information in the age of fast-paced scientific and technological advancement,
according to the United Nations Guidelines for Consumer Protection (“the
Guidelines”), which were adopted in 1985 and last revised in 2015.1

The revision of the Guidelines in 2015, and its new text, have attributed
enhanced responsibility for businesses and governments in building consumer
knowledge and education, so that consumers are equipped to make informed
choices. The “Principles for Good Business Practices”, now embedded in the
Guidelines, highlight the responsibility of businesses to provide truthful, relevant,
and non-misleading information concerning their products and services, while
also avoiding deceptive or abusive practices. Since its latest revision, the
Guidelines have established a role for businesses to upskill consumers’ awareness
and knowledge of risks, through consumer education initiatives.

As regulation often lags behind the speed of product development, the
Guidelines encourage businesses to educate consumers on product innovation and
new technologies. Where regulatory gaps exist, businesses should be able to
disseminate accurate and truthful information to avoid the risk of consumers
being left in the dark, unable to make an informed decision on whether or not to
consume a new product. The free flow of information, including relevant
scientific information provided from producers to consumers, contributes to more
innovation, enabling better and informed consumer choices.

This study is divided into three parts. Part I will address the meaning of the
consumer right to information in the age of innovation, using the Guidelines as
a framework. Part II will discuss how courts in different jurisdictions have
addressed the issue of the provision of information to consumers, based on
consumer rights and/or commercial speech theories. Part III will look at how the
provision of scientific information to consumers can propel innovation and
behavior change.

II. THE MEANING OF THE CONSUMER RIGHT TO INFORMATION IN

THE AGE OF INNOVATION

A. The Foundations of the Right to Information

At its core, the right to information is a corollary of freedom of expression,
which is embedded in the international human rights framework.2 The Universal

1. See, U.N. GUIDELINES ON CONSUMER PROTECTION (2016), https://unctad.org/en/

PublicationsLibrary/ditccplpmisc2016d1_en.pdf [https://perma.cc/EZ42-PQM4].

2.  The international human rights framework is composed of the UNIVERSAL DECLARATION

OF HUM.N RTS. (UDHR), adopted by the U.N. GEN. ASSEMBLY (UNGA) on 10 December 1948,

the Int’l Covenant on Civ. and Pol. Rts., adopted by the UNGA on 16 December 1966, and the Int’l

Covenant on Econ., Soc. and Cultural Rts. (ICESCR), adopted by the UNGA on 16 December

1966, which together form the “Int’l Bill of Hum. Rts.”; see also OFF. OF THE HIGH COMM’R FOR



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 3

Declaration of Human Rights (UDHR), in its Article 19, and the International
Covenant on Civil and Political Rights (ICCPR), in its Article 19 (2), state that
individuals have a right to freedom of expression, which includes the right to
receive information. This principle has also been incorporated into regional
human rights frameworks and enforced by regional human rights judicial
mechanisms, including the European Court of Human Rights (ECtHR), the
African Court of People and Human Rights, and the Inter-American Court of
Human Rights.3

In this connection, Article 10 of the European Convention on Human Rights
(ECHR) reiterates that the right to freedom of expression includes the right to
receive and impart information and ideas. This concept is similarly expressed in
Article 9 of the African Charter of Human and People’s Rights, and Article 13 of
the American Convention on Human Rights. Jurisprudence from the European
Court of Human Rights supports this proposition, in applying the principle that
Article 10 guarantees not only the freedom of the press to inform the public, but
also the right of the public to be properly informed.4 Information that is of the
public interest should be disclosed, to allow individuals to participate in public
governance and debates of legitimate public concern.5

The African Commission on Human and People’s Rights has declared that
the right of the public to receive information is a core tenet of a democratic
society,6 providing regional reinforcement for similar statements made by the
United Nations Human Rights Council and the General Assembly.7 The African
Court of Human Rights has determined that the right to freedom of expression,
including the right to receive information, can only be infringed if the

HUM. RTS., HUM. RTS. FRAMEWORK, https://www.ohchr.org/EN/Issues/Migration/Pages/

HumanRightsFramework.aspx [https://perma.cc/R2PG-7TU3]. (last visited on Apr. 15, 2019).

3.  The EUR. CONVENTION ON HUM. RTS. (ECHR) was opened for signature on 4 November

1950 and came into force on 3 September 1953. The Afri. Charter of Hum. and People’s Rts.was

adopted on 27 June 1981 and entered into force on 21 October 1986. The Am. Convention on Hum.

Rts. was signed on 22 November 1969 and entered into force on 18 July 1978,

https://www.ohchr.org/EN/Issues/ESCR/Pages/RegionalHRTreaties.aspx (last visited on Oct. 24,

2019) [https://perma.cc/XV3C-PWZP].

4. The Sunday Times v. The United Kingdom, Case No. 6538/74, 26 April 1979, Eur. Ct.

H.R., ¶ 66.

5. Magyr Helsinki Bizottsag v. Hungary, Case No. 18030/11, 8 November 2016, Eur. Ct.

of H.R. ¶ 161.

6.  Art. 19 v. Eritrea, Afr. Comm. on Hum. and People’s Rts. (SC) (May 30, 2007),

https://acjr.org.za/resource-centre/286-eritrea-article-19-v-eritrea-2007-ahrlr-73-achpr-

2007.pdf/@@download/file/286-eritrea-article-19-v-eritrea-2007-ahrlr-73-achpr-2007.pdf

[https://perma.cc/45RM-TBHV].     

7.  See United Nations, Report of the Special Rapporteur on the Promotion and Protection

of Freedom of Expression (SC) (Sept. 6, 2016), http://www.un.org/ga/search/view_doc.asp?symbol

=A/71/373 [https://perma.cc/B8VA-FVJ5]. The Human Rights Council and the General Assembly

have referred to freedom of expression as one of the essential foundations of a democratic society

and one of the basic conditions for its progress and development.



4 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

restrictions put in place are proportionate and for a legitimate public concern.8

The Inter-American Court of Human Rights has reiterated this concept.9

The international human rights framework is clear in delineating the right
of individuals to receive accurate information to allow them to make informed
decisions and to participate in public governance. Information accessibility also
entails the right to seek, receive, and impart information and ideas concerning
products. While within the human rights context, the scope of discussion
typically relates to political speech–commercial speech is another form of
communication which also receives varying levels of protection in various
jurisdictions. While each jurisdiction has a different approach, this paper posits
that consumers should be provided more, rather than less information, and
businesses should be able to engage in truthful non-misleading communications
as a means of informing the public. The more information the public receives,
the better equipped they are to make informed decisions.

Information accessibility, and the ability to communicate to consumers, are
key in the context of rapid technological innovation and advancement which
facilitates the creation of new products. The right to receive, seek, and impart
information takes on various dimensions, and understanding the foundational
basis for these principles is key to coming up with effective consumer policies.
The right to information also has roots in the principle of autonomy, which will
be explored in further detail below.

B. Respect for Autonomy

As an ethical principle, autonomy provides recognition for the fact that
individuals, i.e. consumers, should have the ability to freely express their will
and their choices. The term autonomy comes from the Greek phrase autos
which means self, in combination with the word nomos which means rule,
governance or law.10 In ethics and political philosophy, autonomy is the state
or condition of self-governance, or leading one’s life according to reasons,
values, or desires that are authentically one’s own.11

Autonomy, or personal autonomy, is one of the ethical foundations to many
moral and political rights and freedoms. Personal autonomy can be defined as
the ability to conduct life in a manner of one’s own choosing. Within the sphere
of human rights, the concept of personal autonomy is closely linked to the right

8.  Lohé Issa Konaté v. The Republic of Burkina Faso, The Afr. Ct. of Hum. and People’s

Rts., App. No. 004/2013, 5 December 2014, ¶ 133. The case is in the context of criminalization for

defamation.

9.  Inter-Am. Ct. H.R. , Gomes Lund et al. (“Guerrilha do Araguaia”) v. Brazil,  Inter-Am.

Ct. H.R., App. No. 004/2013, 24 November 2010, ¶¶ 197-202.

10.  Evanthia Sakellari, Patient’s autonomy and informed consent, 13 ICUS NURS WEB J.

(SC) 1 (Dec. 2002), https://www.researchgate.net/publication/241752332_Patient’s_autonomy_

and_informed_consent (last accessed on April 10, 2019).

11.  James Taylor, Autonomy, Ethics and Political Philosophy, ENCYCLOPEDIA BRITANNICA

(July 3, 2014), https://www.britannica.com/topic/autonomy, [https://perma.cc/WD5P-3WJ5].



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 5

to privacy12 and the freedom to make choices. This term relates to:

(. . .) a person’s ability to make his or her own rules in life and to make
decisions independently. The idea that people must be free to shape their
own lives is central to most accounts of autonomy. In general, autonomy
means that a subject is the best expert on his/her interests. It is the reason
why this subject should be able to make his/her own laws, particular
rules of conduct or follow the values that are acceptable to him/her in
practice. In general, any action or act can be described as autonomous
only if the agent gives preference to this action, and this decision is
independent and corresponds with his/her plan of action. In other words,
we can talk about autonomy only when the freedom to choose and to
make ethical decisions is guaranteed.13

In the field of bioethics, to respect an autonomous agent is to acknowledge
that person’s right to hold views, to make choices and to take actions based on
personal values and beliefs.14 This principle is the basis for the practice of
“informed consent” in the physician/patient relationship regarding health care.
Before any treatment can be given to a patient or procedure performed, patients
must give informed consent. The process of informed consent is an opportunity
for a doctor to provide information to their patients about the risks, benefits, and
alternatives of a certain procedure, so that they can take an informed decision
about the medical treatment they wish to follow.15

Respect for autonomy is also engrained in consumer laws and relates to the
right of consumers to make informed choices according to their own needs and
preferences. To ensure respect for consumers’ autonomy, governments should
provide a framework under which consumers can receive reliable, accurate and
non-misleading information about the choices of products that are available to
them. This is particularly true when products can have an impact on the health of
consumers. This information is usually supplied and provided by businesses, in
the form of commercial speech. The overlay between the principle of autonomy,
the right to information, and commercial speech, is even more relevant in the
context of new innovative or technological products on the market, which
consumers may be unfamiliar with and need information concerning the form of

12.  UNITED NATIONS, International Covenant on Civil and Political Rights, art. 17 (Dec. 16,

1966), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [https://perma.cc/VK9Y-

K7GN]. (“1. No one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone

has the right to the protection of the law against such interference or attacks.”).

13.  Jaunius Gumbis et al., Do Human Rights Guarantee Autonomy?, Cuadernos

Constitucionales de la Cátedra Fadrique Furió Ceriol (SC) (2011) 79-80, http://www.corteidh.or.cr/

tablas/r26750.pdf [https://perma.cc/PZ86-9M78].

14.  TOM L. BEAUCHAMP & JAMES F. CHILDRESS, PRINCIPLES OF BIOMEDICAL ETHICS 63 (5th

ed., Oxford University Press 2001).

15. John Coggon & Jose Miola, Autonomy, Liberty, and Medical Decision-Making, THE

CAMBRIDGE L. J. (2011) at 523-47.



6 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

usage, benefits and potential risks.
These two fundamental principles, the right to information and the concept

of autonomy (or the right to make informed choices), are embedded in the
modern notions of consumer rights and consumer protection. The next section
will explore the political origins of consumer policy, and the right to be informed
in relation to products, goods, and services.

C. The Political Origins of Consumer Rights

Many scholars believe that the modern concept of consumer protection first
appeared in a political declaration made by President Kennedy to the United
States Congress in 1962, entitled the Special Message to the Congress on
Protecting the Consumer Interest. In this speech, President Kennedy recognized
the importance of consumers as a political and economic group and called upon
Congress to take action to protect their interests. The historic speech recognized
that technological progress posed both opportunities and difficulties for
consumers. Consumers benefited from a much wider variety of consumer goods
but were rarely provided with the information they needed to make informed
choices. The following sections of the speech illustrate this point:

[t]he march of technology – affecting, for example, the foods we eat, the
medicines we take, and the many appliances we use in our homes – has
increased the difficulties of the consumer along with his opportunities;
and it has outmoded many of the old laws and regulations and made new
legislation necessary. The typical supermarket before World War II
stocked about 1,500 separate food items – an impressive figure by any
standard.

But today it carries over 6,000. Ninety percent of the prescriptions
written today are for drugs that were unknown 20 years ago. Many of the
new products used every day in the home are highly complex. The
housewife [or house husband] is called upon to be an amateur electrician,
mechanism, chemist, toxicologist, dietitian, and mathematician – but she
[or he] is rarely furnished the information she [or he] needs to perform
these tasks proficiently.

Nearly all of the programs offered by this Administration – e.g., the
expansion of world trade, the improvement of medical care, the reduction
of passenger taxes, the strengthening of mass transit, the development of
conservation and recreation areas and low-cost power – are of direct or
inherent importance to consumers. Additional legislative and
administrative action is required, however, if the federal Government is
to meet its responsibility to consumers in the exercise of their rights.16

16.  John F. Kennedy, Special Message to the United States Congress on Protecting

Consumer Interest, JOHN F. KENNEDY PRESIDENTIAL LIBR. & MUSEUM (Mar. 15, 1962), 

h t tps:/ /www.jfklibrary.org/asset-viewer/archives/JFKPOF/037/JFKPOF-037-028



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 7

Stemming from this declaration, four policy areas have been identified, which
shaped the basic rights of consumers: (i) the right to safety; (ii) the right to be
informed; (iii) the right to choose; and (iv) the right to be heard. The right to be
informed entails the right of consumers to be provided all the facts they need to
make informed choices, as well as the right to be protected against fraudulent,
deceitful, or misleading information, advertising, labeling, or other practices.

The right to information is essential to empowering consumer choice. A
delicate balance must exist between the rights of consumers, and the shared
responsibility of governments and businesses, to provide consumers with truthful
information on products and services.

Over the years, political support has grown globally for enhancing the rights
of consumers. The “right to be informed” has been tangibly furthered through the
implementation of national laws and development of court jurisprudence which
protect this right. The United Nations, through its Guidelines, established a global
framework and strong political will to encourage the adoption of laws around the
world which further the rights of consumers. These Guidelines, and relevant
revisions which have taken place over the years to reflect the reality of the
evolving rights of consumers due to technological innovation and advancement,
will be explored in detail below.

D. The United Nations Guidelines for Consumer Protection

1. Background

Prior to the issuance of the Guidelines in 1985, member states already started
to assess responsibilities for businesses in the context of consumer goods, through
issuing the United Nations Set of Principles and Rules on Competition, also
known as The Set of Multilaterally Agreed Equitable Principles and Rules for the
Control of Restrictive Business Practices (the “Set Principles”).17 The Set
Principles reflect a multilateral agreement on competition policy.18

On 9 April 1985 the General Assembly of the United Nations unanimously

[https://perma.cc/V24E-P3NW] (emphasis added).

17.  The Set of Multilaterally Agreed Equitable Principles and Rules for the Control of

Restrictive Business Practices, THE U.N. SET OF PRINCIPLES & RULES ON COMPETITION (2000)

https://unctad.org/en/docs/tdrbpconf10r2.en.pdf [https://perma.cc/D2UH-KV23].   Resolution 35/63

was adopted by the United Nations General Assembly at its thirty-fifth session on 5 December

1980, whereby the Set principles were pronounced. One of the stated objectives of the Set

Principles is “to attain greater efficiency in international trade and development, (. . .), such as

through: (. . .) (c) encouragement of innovation.”

18.  The United Nations Set of Principles of Competition, U.N. CONF. ON TRADE & DEV.,

https://unctad.org/en/Pages/DITC/CompetitionLaw/The-United-Nations-Set-of-Principles-on-

Competition.aspx [https://perma.cc/4XR5-FHM3]. (The Set Principles (i) provide a set of equitable

rules for the control of anti-competitive practices; (ii) recognize the development dimension of

competition law and policy; and (iii) provide a framework for international cooperation and

exchange of best practices).



8 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

adopted the Guidelines, which were then again revised in 1999 and 2015.19 The
Guidelines are an internationally recognized set of minimum objectives for
consumer protection. They are a form of policy advice for member states, with
flexibility to be imposed into national laws in a manner which respects local
circumstances and tradition.20

Given the international unanimous consensus with which the Guidelines were
adopted, some scholars believe “they have a chance of developing into customary
law and becoming binding laws in the future.”21 The Guidelines were one of the
first international documents explicitly recognizing the right of consumers to
make informed decisions in accordance with their individual wishes and
needs–placing a responsibility on member states to ensure these protections are
ingrained in their local laws.

The adoption of the Guidelines has reinforced the increasing recognition in
recent years that consumer policy can no longer be seen as being of purely local
concern and must be seen in an international context.22 In addition, given that
there is recognition that “consumer rights are sufficiently important and have
been unanimously accepted by UN member states as basic principles (. . .),” there
is a presumed universal need to ensure a stable and high level of protection.23  
The Guidelines are said to have shaped consumer laws in over 100 countries, and
thus can potentially be viewed as embodying universally recognized standards for
consumer-related legislation.24 This demonstrates direct acceptance of consumer
rights at an international level, and sets a framework to encourage governments
to promote consumer protection in the areas of consumer information, choice, and
education.25

Over time, the Guidelines have been adapted to take into consideration
innovations and advancements, like the internet and e-commerce, and were
revised in 1999 and 2015. Product innovation creates a new set of dynamics and

19.  As a general rule, guidelines and declarations issued by international organizations assist

countries in implementing their national laws. These soft law documents do not trigger binding

obligations on member states. Nevertheless, guidelines provide useful information and guidance

for member states to interpret and implement laws in their national jurisdictions.      

20.  Dan Wei, Consumer Protection in the Global Context: The Present Status and Some New

Trends, CONSUMER LAW AND SOCIOECONOMIC DEVELOPMENT NATIONAL AND INTERNATIONAL

DIMENSIONS, 10 (Claudia Lima Marques et al. eds., 2017).

21.  Handbook on Research of International Consumer Law: Consumer Protection and

Human Rights, 23 (2010), https://search-proquest-com.proxy.ulib.uits.iu.edu/central/docview/

761721226/D58E2056F5BE47A3PQ/1?accountid=7398 [https://perma.cc/SK2J-VUVY]

[hereinafter Handbook].

22.  David Harland, The United Nations Guidelines for Consumer Protection, J. OF

CONSUMER POL’Y (SC) (1987), https://doi.org/10.1007/BF00411533 [https://perma.cc/NEV4-

U9PU].

23.   Handbook, supra note 21, at 23.

24.  CONSUMER LAW AND SOCIOECONOMIC DEVELOPMENT NATIONAL AND INTERNATIONAL

DIMENSIONS, supra note 20.

25.  Id.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 9

responsibilities for businesses and governments. An analysis of the revisions to
the Guidelines shows that businesses now have more of a role to play in
upskilling the awareness of consumers through communication initiatives. The
evolution of the Guidelines to highlight the increased onus placed on businesses,
and the delicate balance that must be achieved between business and
governments, will be assessed below.

2. Revision of the Guidelines

The Guidelines were last revised in 2015 to reinforce one of the underlying
objectives of providing consumers with relevant information on products and
services, so they can make better and more informed choices.26 Over time, a
textual review and analysis of the Guidelines from 1985, to 1999, and then 2015,
shows that: (i) there is an emphasis on the empowerment of consumers to make
decisions for themselves, echoing the principle of autonomy; (ii) businesses have
an enhanced responsibility to educate consumers, and to provide truthful,
relevant, non-misleading information concerning their products, which should in
turn be allowed to reach consumers and be subject to government scrutiny and
enforcement; and (iii) effective policies require a delicate balance between the
roles of governments, businesses, and consumers themselves.

One of the most important changes made in the 2015 revision of the
Guidelines is to section III(5)(e). Instead of access “of” consumers to adequate
information, the Guidelines were changed to read access “by” consumers to
adequate information enabling informed choices according to their individual
wishes and needs.27 These changes were interpreted as follows:

What is the underlying philosophy of the Guidelines? They promote a
‘choice’ model of consumer protection tempered by information and
education, along with certain protection. A key aspect of this Revision
is the emphasis on knowledge. Information and knowledge complement
a choice model, for without information and the ability to use that
information there can be no informed choice, optimum or otherwise. In
addition to promoting global flows of knowledge, there is an interesting
change to the preposition in the General Principles concerning adequate
information for informed choices. Instead of access ‘of’ consumers, this

26.  Handbook, supra note 21; Gael Pearson, The UNGCP Guidelines: Some Comments, at

pp. 40-41.

27. GUIDELINES, supra note 1, §III(5)(e). (“4. Member States should develop, strengthen or

maintain a strong consumer protection policy, taking into account the guidelines set out below and

relevant international agreements. In so doing, each Member State must set its own priorities for

the protection of consumers in accordance with the economic, social and environmental

circumstances of the country and the needs of its population, and bearing in mind the costs and

benefits of proposed measures. 5. The legitimate needs which the guidelines are intended to meet

are the following: [. . .] (e) Access by consumers to adequate information to enable them to make

informed choices according to their individual wishes and needs.”).



10 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

now reads access ‘by’ consumers. ‘By’ connotes a more positive
involvement of consumers with information.28

Notably, the 2015 revision of the Guidelines also places enhanced emphasis
on the duty of businesses, through addition of the new “Principles for Good
Business Practices” section. Older versions of the Guidelines had fewer
references to direct business responsibilities. The previous versions primarily
addressed governments, to ensure that member states put the proper frameworks
in place to regulate the activities of businesses.

In the beginning, the 1985 version of the Guidelines included limited
references to responsibilities for businesses.29 The United Nations Economic and
Social Council adopted revisions to the Guidelines in 1999, with the primary
purpose of adding provisions on sustainable consumption. The 1999 revisions
slightly enhanced the reference to responsibilities on businesses, introducing a
new section II(7).30 Fast forwarding to the digital era of technological
advancement and the internet, the newly revised 2015 version of the Guidelines

28.  Handbook, supra note 21 (emphasis added).

29.  UNITED NATIONS, UNGA Resolution on Consumer Protection (Apr. 16, 1985),

https://www.un.org/documents/ga/res/39/a39r248.htm (last visited April 8, 2019) (“Section

IIIA(10): Appropriate policies should ensure that goods produced by manufacturers are safe for

either intended or normally foreseeable use. Those responsible for bringing goods to the market,

in particular suppliers, exporters, importers, retailers and the linked (hereinafter referred to as

‘distributors’) should ensure that while in their care these goods are not rendered unsafe through

improper handling or storage that while in their care they do not become hazardous through

improper handling or storage. Consumers should be instructed in the proper use of goods and

should be informed of the risks involved in intended or normally foreseeable use. Vital safety

information should be conveyed to consumers by internationally understandable principles

wherever possible. Section IIIB(20): Promotional marketing and sales practices should be guided

by the principle of fair treatment of consumers and should meet legal requirements. This requires

the provision of the information necessary to enable consumers to take informed and independent

decisions, as well as measures to ensure that the information provided is accurate. Section IIIB(22):

Governments should, within their own national context, encourage the formulation and

implementation by business, in co-operation with consumer organizations, of codes of marketing

and other business practices to ensure adequate consumer protection. Voluntary agreements may

also be established jointly by business, consumer organizations and other interested parties. These

codes should receive adequate publicity. Section IIIF(35): Business should, where appropriate,

undertake or participate in factual and relevant consumer education and information

programmes.”).

30. Department of Economic and Social Affairs, UN GUIDELINES FOR CONSUMER

PROTECTION (2003), https://unctad.org/en/PublicationsLibrary/UN-DESA_GCP1999_en.pdf

[https://perma.cc/PN5X-SGC4]. (“Section II(7) All enterprises should obey the relevant laws and

regulations of the countries in which they do business. They should also conform to the appropriate

provisions of international standards for consumer protection to which the competent authorities

of the country in question have agreed (Hereinafter references to international standards in the

guidelines should be viewed in the context of this paragraph.)”).



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 11

incorporate a whole section entitled “Principles for Good Business Practices.”
This section, in its entirety, provides as follows:

(11) The principles that establish benchmarks for good business practices
for conducting online and offline commercial activities with consumers
are as follows:

(a) Fair and equitable treatment. Businesses should deal fairly and
honestly with consumers at all stages of their relationship, so that it
is an integral part of the business culture. Businesses should avoid
practices that harm consumers, particularly with respect to
vulnerable and disadvantaged consumers:

(b) Commercial behaviour. Businesses should not subject consumers to
illegal, unethical, discriminatory or deceptive practices, such as
abusive marketing tactics, abusive debt collection or other improper
behaviour that may pose unnecessary risks or harm consumers.
Businesses and their authorized agents should have due regard for
the interests of consumers and responsibility for upholding consumer
protection as an objective.

(c) Disclosure and transparency. Businesses should provide complete,
accurate and not misleading information regarding the goods and
services, terms, conditions, applicable fees and final costs to enable
consumers to take informed decisions. Businesses should ensure easy
access to this information, especially to the key terms and conditions,
regardless of the means of technology used.

(d) Education and awareness-raising. Businesses should, as
appropriate, develop programmes and mechanisms to assist
consumers to develop the knowledge and skills necessary to
understand risks, including financial risks, to take informed
decisions and to access competent and professional advice and
assistance, preferably from an independent third party.

(e) Protection of privacy. Businesses should protect consumers’ privacy
through a combination of appropriate control, security, transparency
and consent mechanisms relating to the collection and use of their
personal data.

(f) Consumer complaints and disputes. Businesses should make
available complaints- handling mechanisms that provide consumers
with expeditious, fair, transparent, inexpensive, accessible, speedy
and effective dispute resolution without unnecessary cost or burden.
Businesses should consider subscribing to domestic and international
standards pertaining to internal complaints handling, alternative
dispute resolution services and customer satisfaction codes.31

The shared responsibility between business and governments in relation to the

31.  GUIDELINES, supra note 1, at § IV (emphasis added).



12 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

dissemination of information and education programs is highlighted in the
following sections:

42. Member States should develop or encourage the development of
general consumer education and information programmes, including
information on the environmental impacts of consumer choices and
behaviour and the possible implications, including benefits and costs, of
changes in consumption, bearing in mind the cultural traditions of the
people concerned. The aim of such programmes should be to enable
people to act as discriminating consumers, capable of making an
informed choice of goods and services, and conscious of their rights and
responsibilities. In developing such programmes, special attention should
be given to the needs of vulnerable and disadvantaged consumers, in both
rural and urban areas, including low- income consumers and those with
low or non-existent literacy levels. Consumer groups, business and other
relevant organizations of civil society should be involved in these
educational efforts”.

46. Businesses should, where appropriate, undertake or participate in
factual and relevant consumer education and information programmes.32

These additions put an enhanced responsibility on businesses to have a
proactive role in providing consumers with information to guide their decisions.
The new critical provisions, section 11(c), section 11(d), and section 42, show
that the responsibility for education and awareness-raising is split between both
government and businesses–representing a paradigm shift in the role of
businesses to upscale the knowledge of consumers. Section 11(d) now encourages
businesses to develop the knowledge and skills necessary for consumers to
understand risks associated with products.

The provisions outline a balance among the roles of all parties involved in
consumer policy. On the government side, frameworks should enable consumers
to access information which is provided in relation to the full range of products
and services available for consumption. Governments are also expected to
provide consumer education and adequate law enforcement to curb the potential
for any abusive practices. Businesses, in turn, have a responsibility to
communicate truthfully and accurately to ensure that they do not mislead
consumers. Consumers should then exercise their rights autonomously, making
informed decisions. This delicate balance among the different roles is illustrated
in the visual representation below:

32.  Id. at §§ 42 and 46.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 13

Figure 1: Information and the roles of governments, businesses and consumers

Under the current text of the Guidelines, approaches to consumer policy that
allow providing more (not less) information to consumers, should be encouraged.
Further support for this approach is found in Section 5 (k), which states that “the
global free flow of information” is one of the guiding principles and objectives
of the Guidelines. Section 28 also calls on Member States to “encourage all
concerned to participate in the free flow of accurate information on all aspects of
consumer products.”

This balanced policy approach proves to be more relevant in the case of
newly emerging technologies and product innovations, which may not be
explicitly covered by existing regulations. Ideally, regulation should indicate to
manufacturers which information standard they must comply with. However, as
regulation is always a few steps behind innovation, there is a legitimate case for
manufactures to provide such information despite regulatory gaps.

III. DIFFERENT POLICY APPROACHES TO THE PROVISION OF

INFORMATION TO CONSUMERS

A. Comparative Law Review

In some jurisdictions, businesses have a fair amount of discretion in
providing consumers with product related information. In the United States, for
instance, the Supreme Court has granted constitutional protection to “commercial
speech”, i.e. speech which communicates an economic interest and provides
information to consumers.33 Commercial speech protections can help facilitate the

Government Duties:

consumer education
+ enforcement
against abusive

practices

Consumer Rights:

information enabling
informed choices

Good Business
Practices:

accurate and truthful
information + consumer

education

33.  Oxana Gassy-Wright, Commercial Speech in the United States and Europe, Univ. of Ga.



14 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

dialogue between businesses and consumers, and allow for the free flow of
information to guide decision-making.

In the United States commercial speech is a relevant tool available for
businesses to keep consumers abreast of new products and services. As an
example, a 2012 decision by the Second Circuit Court of Appeals recognized as
commercial speech that merit protection the provision of truthful and non-
misleading information about unapproved off-label use of prescription drugs.34

Although commercial speech can be considered a constitutional feature
particular to the United States, other jurisdictions also protect commercial speech,
or have framed the concept in different ways – in some instances as a right or
freedom and in others as an obligation or duty – providing a certain degree of
protection to the information.

The next section will analyze how courts have approached the provision of
information to consumers by examining selected jurisprudence in the United
States, Canada, Germany, the European Union, and Brazil. As stated above, the
United States provides stronger safeguards for commercial speech.  Canadian
protections for commercial speech mirror the American approach but can be more
restrictive. In Germany, the Constitutional Court grants protection to commercial
speech and will not allow blanket bans on advertising or commercial information,
especially if it involves truthful and non-misleading content. In Europe, the Court
of Justice of the European Union (CJEU) recognizes a certain degree of
protection for commercial speech, but in concrete cases this protection does not
always fully materialize.35 The CJEU is willing to accept restrictions on
commercial speech justified on the basis of health, or other relevant public
interests. While Brazilian Courts have not developed their own “commercial
speech” doctrine, they have recognized a consumer right to receive adequate
information, which is considered an autonomous right that needs to be fulfilled
by businesses.

Of course, varied political, legal, and cultural traditions lead to varying
degrees of protection for information provided by businesses. With all due respect
for varied approaches, this paper contends that in order for businesses to fulfill
the “Principles for Good Business Practices” and inherent responsibilities
delineated in the newly revised Guidelines, the act of providing truthful non-
misleading information to consumers in relation to new and innovative products
should receive some level of protection, in order to spur product innovation and
equip consumers with the requisite knowledge to guide their decisions.

Sch. of L. LLM Theses & Essays (May 1, 2005), https://digitalcommons.law.uga.edu/cgi/

viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1016&context=stu_llm

[https://perma.cc/2H7A-KCDN]; see also Securities and Exchange Commission v. Wall Street

Publishing Institute Inc. dba Stock Market Magazine, 851 F.2d 365 (U.S.C.A. DC Cir. 1988);

Central Hudson Gas & Electric Corp. v. Public Service Commission (hereinafter Central Hudson),

447 U.S. 557 (1980).

34.  US v. Caronia, 703 F.3d 149, 163, 168-69 (2d Cir. 2012).

35.  Gassy-Wright, supra note 33, at 5.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 15

1. Commercial Speech in the United States

Free speech is viewed as one of the foundational tenets of a democratic
society, and can be used as an instrument for the achievement of truth through
knowledge.36 Commercial speech can be defined as speech that is “concededly
an advertisement and refers to a specific product and is motivated by commercial
interest,” or speech that is used for advertising or profit.37 The justifications for
protecting commercial speech include that commercial speech helps to influence
the free market economy, and the free market allows for the free flow of
information and free choice (autonomy).

Until the mid-1970s, however, the Supreme Court did not consider that
commercial speech was protected by the First Amendment. In a series of cases
culminating in Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council Inc (1976), the Supreme Court changed course and decided that the First
Amendment’s protections extended to purely commercial speech. In Virginia
Pharmacy, the Court struck down a Virginia regulation that prohibited
pharmacists from advertising the price of prescription drugs.

In that case, the rationale for First Amendment protection of commercial
speech was the interest both of the individual consumer and society generally in
the free flow of commercial information, which was viewed as indispensable to
informed economic choice.38 Justice Blackmun, writing for the Court, argued that
there was a listener’s right to receive advertising and also considered that an
alternative approach could be to assume that the information is not in itself
harmful – and that people will act in their own best interest if they are well
informed. Justice Blackmun suggested that the best approach is open the channels
of communication rather than to close them.

While commercial speech receives constitutional protection in the United
States, review and survey of jurisprudence from the Supreme Court shows that
there is an intermediate level of protection for the dissemination of truthful and

36.  Id. at 1.

37.  Id. at 15.

38. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S.

748 (1976); ERIC BARENDT, FREEDOM OF SPEECH, OXFORD UNIV. PRESS 400-1 (2d. ed. 2005). In

the course of the decision the Court provided three reasons why commercial speech should be

entitled to First amendment protections. (“The first focused on the interests of consumers in the free

flow of commercial information: ‘[T]hat interest may be as keen, if not keener by far, than his

interest in the day’s most urgent political debate.’ Secondly, society has a strong interest in the

unimpeded flow of commercial information, partly because that information may have a public

interest component, but more generally because the flow is important in enabling consumers to

make informed choices, which cumulatively are essential to the working of a free-enterprise

economy. Thirdly, for the state to justify its ban on the publication of drug prices with the argument

that otherwise consumers would be attracted to go to low-cost, low-quality pharmacist is

unacceptable paternalism.”).



16 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

non-misleading information about products and services.39 The Central Hudson
case laid out a four part test to determine whether or not commercial speech
should be protected.40 This test, articulated below, has been used consistently to
determine whether or not commercial speech will receive protection from the
Court:

For commercial speech to come within that provision, it at least must
concern lawful activity and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If both inquiries yield
positive answers, we must determine whether the regulation directly
advances the governmental interest asserted, and whether it is not more
extensive than is necessary to serve that interest.41

The test lies first in determining whether or not the communication could be
misleading. A check will also be done to ascertain if the government interest in
controlling or limiting the commercial speech is substantial and if the regulation
directly advances such interest. Finally, the Court will review whether the
restriction imposed extends further than necessary. This approach provides more
leeway to businesses to communicate. At the same time it ensures that misleading
statements do not receive protection under the First Amendment.

The 44 Liquormart (1999) case was critical in highlighting the rationale of
the Court in providing protections for commercial speech.42 In this case, liquor
retailers challenged Rhode Island statutes prohibiting advertising of liquor prices.
The Supreme Court held that a complete ban on such advertisements violated the
First Amendment. The Supreme Court gave deference to the ability of businesses
to provide truthful non-misleading information to the public.

The language of the Supreme Court in the 44 Liquormart case again reiterates
that there must be a delicate balance between businesses, governments, and
individuals, in shaping effective policies. This balance, along with an emphasis
on the principles of autonomy and the free flow of information, was expressed in
the following passage:

Precisely because bans against truthful, nonmisleading commercial
speech rarely seek to protect consumers from either deception or
overreaching, they usually rest solely on the offensive assumption that
the public will respond ‘irrationally’ to the truth. Linmark, 431 U.S., at
96, 97 S.Ct., at 1620. The First Amendment directs us to be especially
skeptical of regulations that seek to keep people in the dark for what the
government perceives to be their own good. That teaching applies
equally to state attempts to deprive consumers of accurate information
about their chosen products (. . .). 43

39.  Gassy-Wright, supra note 33 at 5.

40.  Central Hudson Gas & Electric v Public Service Commission, 447 U.S. 557 (1980).

41.  Id. at 566.

42.  44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996).

43.  Id. at 503.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 17

Also crucial is the impact commercial speech may have on broader societal
changes. In Bigelow v. Virginia, the Supreme Court is said to have recognized,
for the first time, the correlation between commercial speech and social
development, in upholding the ability to make available to the public abortion
services and daily rates.44

An interesting evolution of the commercial speech doctrine can also be
evidenced in a 2012 decision by the Second Circuit Court of Appeals in Caronia
v. United States. In this case the Court extended the First Amendment protection
to the diffusion of truthful and non-misleading information on unapproved off-
label use of prescription drugs. The court held that a salesperson who promoted
unapproved off-label—yet scientifically justified— uses of a drug (in this case,
the anti-narcolepsy drug Xyrem®) could not be held liable for violating the Food,
Drug, and Cosmetics Act (FDCA).

According to the Second Circuit Court of Appeals ruling, the particular
FDCA restrictions imposed on such speech violated the First Amendment.45 In
this ruling the Court noted that prohibiting the promotion of off label drug use,
while simultaneously allowing off-label drug use, would interfere with the ability
of patients to receive relevant information. The Court reasoned that “such barriers
to information about off-label use could inhibit, to the public’s detriment,
informed and intelligent treatment decisions.”46 The Court gave deference to the
free flow of information and revealed a policy approach which gave heightened
protection to the value of truthful and non-misleading communication.

2. Commercial Speech in Canada

The Canadian Charter of Rights and Freedoms (the Charter) is the supreme
law of Canada and the main source of constitutionally guaranteed rights and
freedoms.47 In Ford v. Quebec (A.G.) (1988), the Supreme Court of Canada stated

44.  Bigelow v. Virginia, 421 U.S. 809 (1975); NARAIN BATRA, THE FIRST FREEDOMS AND

AMERICA’S CULTURE OF INNOVATION, THE CONSTITUTIONAL FOUNDATIONS OF THE ASPIRATIONAL

SOCIETY 116-7 (2013).

45.  US v. Caronia, 703 F.3d 149 (2012). (“[O]ff-label drug usage is not unlawful, and the

FDA’s drug approval process generally contemplates that approved drugs will be used in off-label

ways. In effect, even if pharmaceutical manufacturers are barred from off-label promotion,

physicians can prescribe, and patients can use, drugs for off-label purposes. As off-label drug use

itself is not prohibited, it does not follow that prohibiting the truthful promotion of off-label drug

usage by a particular class of speakers would directly further the government’s goals of preserving

the efficacy and integrity of the FDA’s drug approval process and reducing patient exposure to

unsafe and ineffective drugs.”).

46.  Id.

47. Canadian Charter of Rights and Freedoms (1982), https://laws-lois.justice.gc.ca/eng/

const/page-15.html. (“Everyone has the following fundamental freedoms: (...) (b) freedom of

thought, belief, opinion and expression, including freedom of the press and other media of

communication.”).



18 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

that the freedoms guaranteed in the Charter “should be given a large and liberal
interpretation” and that there is “no sound basis on which commercial expression
can be excluded from the protection of s. 2(b) of the Charter.”48 The Supreme
Court based its opinion on the welfare enhancing argument that individuals were
able to make improved economic choices, as well as the proposition that the
making of market choices was “an important aspect of individual self-fulfillment
and personal autonomy”:

Over and above its intrinsic value as expression, commercial expression
which, as has been pointed out, protects listeners as well as speakers
plays a significant role in enabling individuals to make informed
economic choices, an important aspect of individual self-fulfillment and
personal autonomy. The Court accordingly rejects the view that
commercial expression serves no individual or societal value in a free
and democratic society and for this reason is undeserving of any
constitutional protection.49

In Irwin Toy Ltd. v. Quebec (A. G.) (1989), the majority decision begins with
an analysis of what constitutes “expression” under section 2(b) of the Charter. In
this case, the Supreme Court gave “expression” a very broad scope and decided
that “if the activity conveys or attempts to convey meaning, it has expressive
content and prima facie falls within the scope of the guarantee.”50 After deciding
that expression is to be defined broadly, the majority restated and summarized the
reasons for protecting freedom of expression as set out in Ford v. Quebec.51

These cases show that the Supreme Court of Canada proclaimed recognition
for commercial speech protections, recognizing benefits to both speakers and
listeners.52 The Canadian approach, however, is different from the doctrine in the
United States, as the Supreme Court of Canada usually assesses the value of the
expression at issue as part of the justification process under the Charter. Based on
this assessment, restrictions on commercial speech, due to their content, are more

48.  La Chaussure Brown’s Inc., Valerie Ford, McKenna Inc., Nettoyeur et Tailleur Masson

Inc. and La Compagnie de Fromage Nationale Ltée A.G. v. Quebec (Attorney General), [1988] 2

S.C.R.712, para. 59 (Can.) (hereinafter Ford v. Quebec).

49.  Id.

50.  Irwin Toy Limited v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (Can.)

51. Id. (“We have already discussed the nature of the principles and values underlying the

vigilant protection of free expression in a society such as ours. They were also discussed by the

Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth

is an inherently good activity; (2) participation in social and political decision-making is to be

fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human

flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not

only for the sake of those who convey a meaning, but also for the sake of those to whom it is

conveyed.”).

52.  See Kent Roach & David Schneiderman, Freedom of Expression in Canada, 61 SUP. CT.

L. REV. 429, 430 (2013);  Richard Cullen & Kevin Tso, Commercial Free Speech - A Critical

Reconsideration, 17 Australian J. Asian L., 2016, at 1, 7.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 19

easily justified.53

3. Freedom of Speech in Germany

Germany is one jurisdiction within the European Union that also provides for
strong protections for freedom of speech, including commercial statements,
typically upholding the right of businesses to provide essential, non-misleading
information to consumers.

For example, in the case Nuklearmedizin im Briefkopf, the German
Constitutional Court recognized the interest of third parties in receiving truthful
and non-misleading information as a factor to be considered in the balancing test
required by constitutional law. This case involved advertising signs placed by a
doctor. The German Constitutional Court annulled restrictions on the ability of
a radiologist to make certain statements in his letterhead. In making its decision,
the German Constitutional Court held that:

The legally protected interest [Rechtsgut] of public health and the
resulting advertising ban to avoid the commercialization of the
profession of doctors, which is undesirable from the point of view of
health policy, do not justify the general prohibition of information on the
specifics of the exercise of the profession, irrespective of its intent and
purpose or its informative value for third parties (. . .) Insofar as the
references are fact-based and non- misleading, they are permitted (. . .)
This follows from Art. 12(1)GG.54

In another case, the German Constitutional Court (BVerfG) overruled the
civil court decision prohibiting the dissemination of three publications by a
physician who sold vitamin supplements.55 The complainant published books and
brochures and engaged in a public debate with the pharmaceutical industry stating
that many diseases are caused by a lack of vitamins, which could easily be
avoided through consumption of vitamin supplements.56 In issuing its judgment
and allowing the dissemination of the information, the Constitutional Court
recognized the general importance of the consumers’ interest in receiving
information about publicly discussed health issues.57

In general, business communications will receive protection in Germany if

53.  Cullen, supra note 52.

54. BVerfG, 1 BvR 166/89, Apr. 21, 1993, https://research.wolterskluwer-online.de/

document/04a5e9aa-931a-4d0d-8cba-3df853c02335?searchId=47777636 [https://perma.cc/23L5-

XMRG], , and subsequently BVerfG, 1 BvR 1147/01, Jan. 8, 2002, https://research.wolterskluwer-

online.de/document/8d09742b-074e-4175-a5bb-c7f2a9e9447b?searchId=47777593

[https://perma.cc/4C2S-QTC7] (emphasis added).

55.  Id.

56.  Id.

57. BVerfG, 1 BvR 2041/02, July 12, 2007, https://research.wolterskluwer-online.de/

document/cba39fb1-18e3-4bc4-af2b-ad8b502850c1?searchId=47777289 [https://perma.cc/SRN2-

RQR2].



20 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

they aim to contribute to a debate of public interest, like health.58 The German
Federal Court for private and criminal law (“Bundesgerichtshof”) has also
recognized the interests of the majority of consumers in the dissemination of
truthful information, in showing that objectively correct information is worthy of
a higher level of protection.59

In the medical context, recognition has been given for the ability of a
charitable foundation whose purpose is to provide consumer information and
advice on health issues, to provide information on doctors in its patient
information services, specifying special treatment options, therapy facilities, and
the specialist title.60 In upholding its justifications, the Court noted that it is in the
essential interest of patients to be informed about special treatment methods, and
also that the “guiding model of the autonomous citizen and patient, would be also
undermined by a corresponding ban on information (. . .).”61

4. Commercial Speech in the European Union

Jurisprudence at the level of the European Union shows recognition of some
degree of protection to “commercial speech,” although both the ECtHR and
CJEU give deference to member states in determining the restrictions deemed
necessary to protect other relevant values, like public safety, health, or security,
which may conflict with commercial speech. 62

For state interference with commercial speech to be considered legitimate by
the ECtHR, it has to: (i) be prescribed by law; (ii) pursue one or more of the
legitimate aims set out in Article 10, paragraph 2, ECHR; and (iii) be necessary
in a democratic society to achieve such aims.63

A review of jurisprudence of the ECtHR shows that the necessity test is less
strict with regard to commercial statements than in the case of political speech.
This means that member states enjoy a wider “margin of appreciation” to regulate
commercial matters, which implies that they may interfere with commercial
speech to a greater extent than would be allowed with regard to other kinds of

58.  Id.

59.  BGH Feb. 15, 1996, I ZR 9/94, https://research.wolterskluwer-online.de/document/

a588c907-13a0-49d8-8741-e4eee0e0109e?searchId=47776599 [https://perma.cc/F9ZW-T8LD].

60. District Court Kiel, judgment of 10 November 1998- 16 O 19/98-

Patienteninformationsdienst.

61.  Id.

62.  The European Convention on Human Rights, supra note 3, at art. 10, § 2. (“The exercise

of these freedoms [freedom to hold opinions and to receive and impart information and ideas], since

it carries with it duties and responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the

interests of national security, territorial integrity or public safety, for the prevention of disorder or

crime, for the protection of health or morals, for the protection of the reputation or rights of others,

for preventing the disclosure of information received in confidence, or for maintaining the authority

and impartiality of the judiciary.”).

63.  Casado Coca v. Spain, 15450/89 Eur. Ct. H.R. ¶¶ 35-51 (1994).



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 21

expression. In other words, the ECtHR is usually more willing to accept the
regulation of advertising than it is to accept the regulation of noncommercial
speech.64

In Casado Coca vs. Spain, the ECtHR examined whether the Barcelona Bar
Association violated Article 10 of the ECHR in sanctioning a lawyer for
advertising his practice in the local newspapers, which was considered in breach
of an advertising ban imposed by the Bar regulation.65 The Court provided in
depth reasoning for how Article 10 guarantees freedom of expression and also
covers some forms of communications in a business context.66

The dicta in Casado Coca v. Spain implied recognition of the notion that
restrictions on the provision of truthful information to consumers will be subject
to close scrutiny by the ECtHR. According to the reasoning of the Court, attempts
to ban or restrict purely factual business communications may be challenged,
based on a potential violation to Article 10, as it impinges on freedom of
expression and the free flow of information.67 However, in the end the ECtHR
found that a violation of Article 10 had not occurred and that local authorities
were better placed to regulate the advertising of legal services.68

64.  Bruce E. H. Johnson & Kyu Ho Youm, Commercial Speech and Free Expression: The

United States and Europe Compared, 2 J. Int’l Media & Ent. 159, 180 (2009);  (“The doctrine of

“margin of appreciation” allows the governments of the Party States some discretion, subject to the

[European Court of Human Rights] supervision, in balancing freedom” of speech “with conflicting

interests such as reputation, privacy, and the right to a fair trial.”) See, e.g., Church of Scientology

v. Suede (Sweden), 7805/77 Eur. Ct. H.R. (1979). (“[T]he level of protection must be less than that

accorded to the expression of ‘political’ ideas, in the broadest sense, with which the values

underpinning the concept of freedom of expression in the Convention are chiefly concerned[.]”)

65.  Casado Coca v. Spain, 15450/89 Eur. Ct. H.R. ¶¶ 35-51 (1994).

66.  Id. at ¶¶ 35, 49, and 51. (“For the citizen, advertising is a means of discovering the

characteristics of services and goods offered to him. Nevertheless, it may sometimes be restricted,

especially to prevent unfair competition and untruthful or misleading advertising. In some contexts,

the publication of even objective, truthful advertisements might be restricted in order to ensure

respect for the rights of others or owing to the special circumstances of particular business activities

and professions. Any such restrictions must, however, be closely scrutinized by the Court, which

must weigh the requirements of those particular features against the advertising in question; to this

end, the Court must look at the impugned penalty in the light of the case as a whole.” [. . .]”The

Court would first point out that Article 10 guarantees freedom of expression to ‘everyone’. No

distinction is made in it according to whether the type of aim pursued is profit-making or not. [. .

.]”In the Commission’s view, banning practically all advertising by members of the Bar appeared

to be excessive and scarcely compatible with the right to freedom of expression, which includes

the freedom to impart information and its corollary, the right to receive it. The applicant’s notice

set out particulars that were wholly neutral (his name, occupation and business address and

telephone number) and did not contain information that was untrue or offensive to fellow members

of the Bar. He was therefore entitled to impart that information, just as his potential clients were

entitled to receive it.”).

67.  Id. at ¶¶ 35-51.

68.  Id.



22 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

The ECtHR allows for a broader “margin of appreciation” or discretion when
reviewing national policies that restrict commercial advertising.69 In practice, this
leads to an overall weaker level of protection of commercial speech.70 This
weaker scope of protection implies that the ability of businesses to communicate
with consumers in the European Union can be more easily restricted.71

Alongside the ECtHR, the CJEU also has a significant body of jurisprudence
addressing issues related to commercial speech. This study focuses on selected
cases where consumer protection was included in the rationale of the decisions.

In GB-INNO-BM v. Confederation du Commerce Luxembourgeois, the CJEU
addressed a question of commercial advertising and the free movement of
goods.72The case involved the advertising of sales offers with reduced prices
through leaflets, with information on the duration of the offer and the prices
previously charged.  This was prohibited by the Luxembourg legislation but
permitted by the regulations in force in Belgium. The CJEU decided that the
restrictions imposed by the Luxembourg legislation were unjustified and did not
protect consumer interests.73 The Court stated that community law establishes a
link between consumer protection and providing information to consumers, which
implies providing more, rather than less, information.74 The Court stated that by
providing information, the consumer is given a voice in decisions which involve
him (or her).75

In Neptune Distribution Snc v. Ministre de l’Economie et des Finances
(France), a request was made for a preliminary ruling concerning the prohibition
to label and advertise natural mineral waters, suggesting characteristics which the

69.  Johnson & Youm, supra note 64, at 198.

70.  Gassy-Wright, supra note 33.

71.  Case 362/88, GB-INNO-BM v. Confederation du Commerce Luxembourgeois, 1990

E.C.R. I-667.

72. Id.

73.  Id.

74.  Id.

75.  Id. at ¶¶ 13-15, 18. (“The question thus arises whether national legislation which

prevents the consumer from having access to certain information may be justified in the interest of

consumer protection. . . . It should be observed first of all that Community policy on the subject

establishes a close link between protecting the consumer and providing the consumer with

information. . . . The existence of a link between protection and information for consumers is

explained in the introduction to the second programme [of the European Economic Community for

a consumer protection and information policy]. There it is stressed that measures taken or scheduled

in accordance with the preliminary programme contribute towards improving the consumer’s

situation by protecting his health, his safety and his economic interest, by providing him with

appropriate information and education, and by giving him a voice in decisions which involve him.

. . . It follows from the foregoing that under Community law concerning consumer protection the

provision of information to the consumer is considered one of the principal requirements. Thus

Article 30 cannot be interpreted as meaning that national legislation which denies the consumer

access to certain kinds of information may be justified by mandatory requirements concerning

consumer protection.”).



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 23

water did not possess.76 In this case, the CJEU reaffirmed the need to provide
accurate and transparent product information to consumers, which would be
“closely related” to the protection of human health. Through using this reasoning,
the Court found that the message at issue could mislead consumers, so the Court
accepted the restrictions on speech that had been imposed by the French
government.77

In another case, MSD Sharp & Dohme GmbH v. Merckle GmbH, involving
the alleged advertisement of prescription drugs, the CJEU made a clear
distinction between “information” content versus “advertising” content of
commercial communications. The Court stated that “material which is purely
informative, without promotional intent, is not covered by the provisions of [the]
directive relating to advertising of medicinal products.”78 The Court found that
in order for a communication to be qualified as an advertisement, it must bear a
promotional purpose; information which is purely informative does not amount
to advertising.79

In the food context, the CJEU has considered disproportionate and unjustified
in light of consumer protection arguments, a general prohibition of health claims,

76.  Case 157/14, Neptune Distribution SNC v. Ministre de l’Économie et des Finances

(Minister for Economic Affairs and Finance), 2015, https://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=CELEX:62014CJ0157 [https://perma.cc/2MLG-QPDA].     

77.  Id. at ¶¶ 65, 74 (“The need to ensure that the consumer has the most accurate and

transparent information possible concerning the characteristics of goods is closely related to the

protection of human health and is a question of general interest . . . which may justify limitations

on the freedom of expression and information of a person carrying on a business or his freedom to

conduct a business.”). (“Since the freedom of expression and information laid down in Article 11

of the Charter has, as is clear from Article 52(3) thereof and the Explanations Relating to the

Charter as regards Article 11, the same meaning and scope as the freedom guaranteed by the

ECHR, it must be held that that freedom covers the use by a business, on packaging, labels and in

advertising for natural mineral waters, of claims and indications referring to the sodium or salt

content of such waters.”).

78.  Case 316/09, MSD Sharp & Dohme GmbH v. Merckle GmbH, 2011 E.C.R. I-03249 ¶

32.

79.  See id. at ¶ 48. (“Having regard to all of the foregoing, the answer to the question

referred is that Article 88(1)(a) of Directive 2001/83 must be interpreted as meaning that it does

not prohibit the dissemination on a website, by a pharmaceutical undertaking, of information

relating to medicinal products available only on medical prescription, where that information is

accessible on the website only to someone who seeks to obtain it and that dissemination consists

solely in the faithful reproduction of the packaging of the medicinal product, in accordance with

Article 62 of that directive, and in the literal and complete reproduction of the package leaflet or

the summary of the product’s characteristics, which have been approved by the authorities with

competence in relation to medicinal products. On the other hand, the dissemination, on such a

website, of information relating to a medicinal product which has been selected or rewritten by the

manufacturer, which can be explained only by an advertising purpose, is prohibited. It is for the

referring court to determine whether and to what extent the activities at issue in the main

proceedings constitute advertising within the meaning of that directive.”).



24 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

combined with a prior authorization system for the labelling and presentation of
foodstuffs, imposed by food regulations in Austria. Such a requirement resulted
in a failure to fulfill obligations on the approximation of the laws of member
states relating to the labeling, presentation, and advertising of foodstuffs.80 In this
case, Republic of Austria v. Commission, the CJEU noted that the Austrian
government did not produce any evidence that a system of ex post control of
foodstuffs is ineffective.81 The Court also clarified that, in case of doubt as to
whether the message can mislead consumers or not, the national authorities
should take “into account the presumed expectations of an average consumer who
is reasonably well informed and reasonably observant and circumspect.”82

5. Protection of Consumer Information in Brazil

Brazil is another jurisdiction which favors the free flow of information
enabling individuals to make better consumer choices. While not through the use
of the doctrine of “commercial speech,” consumer information receives a high
level of protection in Brazil.83 The Courts clearly place an obligation on
businesses to give more, rather than less, information to consumers in order to
guide their decisions. Similar to other freedom of expression provisions around
the world, Article 5 of the Brazilian Constitution provides as follows:
“[M]anifestation of thought is free, but anonymity is forbidden;”84 “expression
of intellectual, artistic, scientific, and communication activity is free, independent

80.  Joined Cases C-421/00, C-426/00, and C-16/01, Republic of Austria v. Commission,

2003 E.C.R. I-1068 ¶¶ 37-38. (“While Article 2(1) of Directive 79/112 prohibits, first, all

statements relating to the preventing, treating and curing of a human disease, even if they are not

liable to mislead the purchaser, and, second, misleading statements relating to health, it is clear that

the protection of public health, assuming that risks relating thereto are nevertheless conceivable in

a particular situation, cannot justify a system as restrictive of the free movement of goods as that

which results from a procedure of prior authorisation for all health-related information on the

labeling of foodstuffs, including those which are manufactured lawfully in other Member States and

are in free circulation.. . . Less restrictive measures exist for the prevention of such residual risks

to health, such as, for example, an obligation on the manufacturer or distributor of the product in

question, in the event of any uncertainty, to furnish evidence of the accuracy of the facts mentioned

on the labelling (see, to that effect, Commission v. Austria, paragraph 49).”)

81.  Joined Cases C-421/00, C-426/00, and C-16/01, Republic of Austria v. Commission,

2003 E.C.R. I-1068 ¶¶ 37-38.

82. Id. at ¶ 43.

83.  With respect to the consumer right to information, see Código de Proteçao e Defesa do

Consumidor [C.D.C.], art. 6 §§ II, III (Braz.) (“The following are basic consumer rights . . . II -

education and information about the adequate level of consumption for products and services,

ensuring freedom of choice and equality in hiring processes; III - adequate and clear information

about different products and services, with correct specification of quantity, characteristics,

composition, quality, price and taxes, as well as the risks presented.”) (unofficial translation).

84.  Constituição Federal [C.F.] [Constitution] art. 5(iv) (Braz.) (discussing Freedom of

Thought).     



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 25

of any censorship or license;”85and “access to information is assured to everyone,
protecting the confidentiality of sources when necessary for professional
activity[.]”86 

In 2007 the Superior Court of Justice handed down an important ruling
determining the level of information that a business should provide to consumers
in order to fulfill its obligation under the Consumer Protection Code.87 The
Superior Court of Justice case involved the labeling of a food product that
contained gluten. Brazilian food regulations required standard labeling for
products containing gluten (i.e. this product “contains gluten”). Although the
producer had complied with the labeling requirements set by the food regulation,
in a legal action filed by the Federal Public Prosecutor’s Office, the Superior
Court of Justice understood that such requirements were insufficient to provide
the consumer with the level of information they needed to protect their health,
placing a higher burden on businesses.88

The Superior Court of Justice ruled that manufacturers should always strive
to go beyond labeling requirements established under food law (special law) if
this proves to be necessary to meet their general duty to inform under the
Consumer Protection Code (consumer law.) The Superior Court of Justice
highlighted that, under the consumer protection law, the right to information was
an autonomous right that posed an autonomous obligation on businesses.89 The
decision went further stating that labeling requirements provided under food
regulation set minimum standards, which did not replace the general information
obligations set forth by the consumer protection law.90

Stating that the product “contains gluten,” as required by the existing food
regulation, was not enough to keep consumers well informed. Businesses were

85.  Constituição Federal [C.F.] [Constitution] art. 5(ix) (Braz.) (discussing Freedom of

Expression).     

86. Constituição Federal [C.F.] [Constitution] art. 5(xiv) (Braz.) (discussing Access to

Information).     

87.  See T2, Ap. Civ. No. Resp 586316 MG 2003/0161208-5,; Relator: Ministro Herman

Benjamin, 17.04.2007, https://stj.jusbrasil.com.br/jurisprudencia/4092403/recurso-especial-resp-

586316 [https://perma.cc/UTJ6-YF8W] (Braz.). (“The duty of information requires a positive and

active behavior[.] . . . Positive and active behavior means that the consumer protection microsystem

is not compatible with half-information, semi-information, proto-information or partial information,

regardless of the term being chosen. Information is either given in full, or is not information in the

legal (and practical) sense attributed to it by the CDC. . . . If the requirements of the special

legislation that governs a specific product or service are not sufficient to properly inform the

consumer, it is up to the manufacturer – the most knowledgeable about the products and services

on sale – to offer complementary information . . . Only the well informed consumer may in fact

fully enjoy the economic benefits of the product or service it has been provided, as well as to

adequately protect itself from risks arising thereof. . . . Strictly speaking, the obligation to inform,

nowadays has a true autonomous nature . . . “ (unofficial translation).

88.  Id.

89.  Id.

90. Id.



26 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

required to add an additional message that “gluten is harmful for people with
celiac disease,” even though this message was not prescribed by the existing food
regulation.91 The Court acknowledged that “if the requirements of the special
legislation that governs a specific product or service are not sufficient to properly
inform the consumer, it is up to the manufacturer – the most knowledgeable about
the products and services on sale – to offer complementary information.”92 This
ruling demonstrates that businesses are encouraged to complement labeling
information prescribed by special regulations, if necessary to fulfill the
consumer’s right to information.

IV. PROPELLING INNOVATION THROUGH INFORMATION

A. Providing Scientific Information to Consumers

Communication of scientific information presents unique opportunities in the
context of consumer policy. One of the first studies analyzing the effects of
disseminating scientific information to consumers in relation to consumer
behavior and product development/innovation was produced in 1990.93 The
objective of the study was to assess advantages and risks of allowing producers
to provide consumers with scientific information that could help them make better
dietary choices, as well as the effects this policy approach could have in terms of
fostering product innovation.94 The study also identified policy approaches that
could help deter consumer deception, while not inhibiting the dissemination of
truthful science-based claims.95 It provided a number of examples where this
approach proved to be advantageous for consumers, highlighting that “[t]he gain
to consumers from incorporating evolving scientific discoveries into basic
decisions about food and product choices can be enormous.”96

One case study confirming the proposition that providing scientific
information to consumers could have a positive impact on consumption behavior
and product development involved the ready-to-eat cereal market in the United
States.97 Prior to 1984, health claims were not allowed on the labeling of food in
the United States.98 However, upon a change in the food legislation, the Kellogg

91.  Id.

92.  Id.

93.  Pauline M. Ippolito & Alan D. Mathios, The Regulation of Science-Based Claims in

Advertising, 13 J. CONSUMER POL’Y 413 (1990).      

94.  Id.

95.  Id.

96.  Id. at 413.     

97.  Before the Department of Health and Human Services Food and Drug Administration:

In the Matter of Request for Comment on First Amendment Issues, Docket No. 02N-0209 at 24

(2002), https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-

food-and-drug-administration-concerning-first-amendment-issues/fdatextversion.pdf

[https://perma.cc/T4ZJ-AGPD].

98.  Id.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 27

Company started to claim that All Bran cereal was high in fiber and that diets
high in fiber could benefit consumers by reducing health risks.99 Other cereal
companies then responded with similar claims for their own high fiber cereals,
while producers not using high fiber cereals in their portfolio were nudged to
reformulate their products to match consumer expectation and competitors’
offers.100

By the year 1987 consumers substantially increased their consumption of
high-fiber cereals, with the greatest increase occurring in the groups that
previously consumed the least amount of fiber cereal.101  The profile of the cereal
market then correspondingly changed. Market shares for high fiber cereals
increased and more cereals with high fiber content were circulating on the market
and being purchased.102  This study also noted that when information is provided
by producers, it can be more effective and far-reaching than non-producer
information disseminated by state educational campaigns, which may typically
benefit segments of society with higher education.103 Another finding was that
producers have higher incentives to innovate and introduce better products to the
market if they can highlight certain aspects of their products, while consumers
can use the information provided to make better choices.104

Another case study showing that the provision of scientific information to the
consumer through food labeling can positively impact product development and
innovation is related to industry “trans fatty acid” (TFA). Consumption of TFA
increases the risk of coronary heart disease, and possibly also the risk of sudden
cardiac death and diabetes according to public health studies.105 In 2002, Canada
passed regulations requiring mandatory TFA food labeling, which came into
force on most packaged foods by 2005.106 A study published by the European
Journal of Clinical Nutrition assessed both grocery and restaurant foods likely to
contain TFA in Canada in 2005–2007, the period following mandatory labeling
of TFA content.107 The conclusions were that food manufacturers and restaurants
took the opportunity to reformulate their products, to reduce TFA content,
increasing content of unsaturated fats, which could provide health benefits to

99.  Id.

100.  Id.

101.  Id.

102.  Ippolito & Mathios, supra note 93, at 417.

103.  Before the Department of Health and Human Services Food and Drug Administration:

In the Matter of Request for Comment on First Amendment Issues, Docket No. 02N-0209 at 24

(2002), https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-

food-and-drug-administration-concerning-first-amendment-issues/fdatextversion.pdf

[https://perma.cc/T4ZJ-AGPD].

104.  Id.

105.  WMN Ratnayake et al., Nationwide Produce Reformulations to Reduce Trans Fatty

Acids in Canada: When Trans Fat Goes out, what Goes in?, 63 EUR. J. CLINICAL NUTRITION 808

(2009).

106.  Id.

107. Id.



28 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

consumers.108

As evidenced by the cereal and TFA case studies, improvements to health can
be achieved through the introduction of new and innovative consumer goods on
the market, or by reformulation of existing products. In both cases, a change in
the regulatory frameworks, which allowed consumers to receive more
information about products, also encouraged producers to improve their
respective product offerings. In the cereal case, researchers were also able to
detect a change in consumption patterns related to high fiber cereals.109  For those
behavior and market changes to happen, it was key that consumers received the
essential information they needed on new products, via labeling, education
campaigns, or other means. In these cases, regulatory policies which encourage
the provision of information, can have the effect of “[t]apping [into] the resources
of the private sector to promote products based on scientific relationships[.]”110

This type of fact-based dissemination of information can inform decision-making
and product innovation in parallel.

Scientific innovation may create what can be categorized as “imperfect
information”.111 Unlike the case of asymmetric information, where producers
know relevant information about the product that consumers do not, in cases of
imperfect or missing information, relevant product information does not exist or

108.  Id. at 809-11 (“Among the major grocery and restaurant food products in Canada that

might contain TFA in 2005–2007, nearly half (42%) contained [greater than or equal to] 5% TFA

on initial assessment. Many were subsequently discontinued or reformulated to reduce TFA; in

those assessed more than once, nearly three-quarters had undergone reformulation, with average

reduction to [less than or equal to] 2% TFA. Following reformulation, only one product had

unchanged content of cis unsaturated fats; all others had increased cis unsaturated fats, most with

absolute increase [greater than or equal to] 10% of fatty acids and half with absolute increase

[greater than or equal to] 20%. The total fat content was generally unchanged. . . . [T]his first large-

scale contemporary assessment of TFA contents and reformulations suggests that, at least in

industrialized nations with food labeling, rather than replacing TFA with SFA or increasing total

fat content, food manufacturers/restaurants are generally taking advantage of costs and efforts of

reformulation as an opportunity to not only reduce TFA but also increase the content of cis

unsaturated fats. Such reformulation may provide additional health benefits beyond those due to

lower TFA content. Most of the assessed food manufacturers and restaurants have global reach, and

these findings should encourage food and restaurant industries in other regions that it is possible

to reformulate foods to both eliminate industrial TFA and improve overall fatty acid

composition.”).

109.  Before the Department of Health and Human Services Food and Drug Administration:

In the Matter of Request for Comment on First Amendment Issues, Docket No. 02N-0209 at 24

(2002), https://www.ftc.gov/sites/default/files/documents/advocacy_documents/ftc-staff-comment-

food-and-drug-administration-concerning-first-amendment-issues/fdatextversion.pdf

[https://perma.cc/T4ZJ-AGPD].

110.  Ippolito & Mathios, supra note 93, at 440.

111.  Mandatory Labeling, U.S. DEP’T AGRIC., ECON. RES. SERV., https://www.ers.usda.gov/

webdocs/publications/41203/18890_aer793d.pdf?v=0 (last visited Oct. 17, 2019) [https://perma.

cc/SG86-WDZA].



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 29

is contradictory.112 This situation could arise when the long term health effects of
a product are unknown, or when scientific opinions differ about the health
consequences of consumption.113 Even in those cases, the government can take
a policy stance to provide consumers with the fullest information possible. This
situation was described in more detail by the United States Department of
Agriculture as follows:

Another type of information problem that may occur in food markets is
that of imperfect information. Unlike the case of asymmetric information,
where producers know relevant information about the product that
consumers do not, in cases of imperfect or missing information, relevant
market information does not exist or is contradictory. This situation
could arise when the long-term health effects of a food or food attributes
are unknown, or when scientific opinions differ about the health
consequences of consumption. In these cases, the government might
require full disclosure of even preliminary or contradictory information
to provide consumers with the fullest information possible. Hadden
(1986, p. 263) argues ‘It is a perversion of the intent of information
provision to wait until full knowledge is available before labeling
products.’ Indeed, if such information is valuable to consumers, it could
improve market efficiency as in the case of asymmetric information.114

If a policy standard is adopted which requires absolute certainty before any
claims or communications on products are allowed, consumers will lose the
potential benefits of receiving the information earlier.115 Keeping consumers in
the dark about scientific developments will lead consumers to use outdated
information on which to base their decisions.116

In the context of tobacco, this raises questions about what level of
information should be provided to consumers on innovative and emerging
nicotine containing products, such as e-cigarettes and heated tobacco, which may
potentially be less harmful alternatives to conventional cigarettes. Recognizing
that alternative nicotine containing products may have the potential to reduce
public health harms associated with smoking, some governments have adopted
regulatory frameworks that allows information to be provided to adult legal aged

112.  Id.

113.  Id.

114.  Id.     

115.  See Ippolito & Mathios, supra note 93, at p. 432-33.

116.  Id. at 438-39.



30 INDIANA INT’L & COMP. LAW REVIEW [Vol. 30:1

smokers about those alternatives.117 
The fact that these products are subject to stringent regulations, including

mandatory disclosure regimes, should not keep adult legal aged consumers from
being properly informed and updated on scientific advancement and innovation
that concerns new products.

B. Education Campaigns: A New Way of Communicating with Consumers

Making consumers aware of the latest scientific evidence will help inform
their decisions. To ensure that the information on new and innovative products
gets to consumers, governments and businesses should use appropriate means of
communication, including education campaigns.

Section 11(c), section 11(d), and section 42 of the Guidelines indicate that the
responsibility for consumer education and awareness-raising is split between both
government and businesses.118 Section 11(d) now calls on businesses to develop
the knowledge and skills necessary for consumers to understand risks associated
with products.119 Interestingly, businesses are now engaging in more education
campaigns with consumers, especially for new technological products that
consumers may not be familiar with.

In this connection, revisions to the Vienna Convention on Road Traffic have
paved the way for automated vehicles.120 In 2017 Waymo (formerly part of
Google) was the first company to create “the world’s first public education
campaign for self-driving cars,” which sought to increase knowledge regarding
self-driving technology.121 The campaign partnered with “Mothers Against Drunk
Driving,” attempting to raise awareness on the possibilities to reduce drunk
driving crashes through the use of autonomous vehicles.122 The campaign entitled
“Let’s Talk Self-Driving” was geared towards educating the public about this new
technology.123

117.  See, e.g., Towards a Smoke-Free Generation: A Tobacco Control Plan for England, U.K.

Dep’t Health (July 2017) https://assets.publishing.service.gov.uk/government/uploads/system/

uploads /a t t ach m en t_ da t a / f i le /6 3 0 2 1 7 /T ow ards_ a_ Sm oke_ f ree_ Gen erat ion_-

_A_Tobacco_Control_Plan_for_England_2017-2022__2_.pdf [https://perma.cc/6DBT-CC4D]; see

also Vaping and Smokeless Tobacco, N.Z. Ministry Health, (Oct. 2017) https://www.health.govt.nz/

our-work/preventative-health-wellness/tobacco-control/vaping-and-smokeless-tobacco (last visited

Oct. 23, 2019) [https://perma.cc/NPR2-UK4Z].

118.  GUIDELINES, supra note 1.

119.  GUIDELINES, supra note 1.

120.  See UNECE paves the way for automated driving by updating UN international

convention, UNECE (Mar. 23, 2016), https://www.unece.org/?id=42459 [https://perma.cc/N4U4-

A3YJ].

121.  See Mallory Locklear, Waymo ad campaign aims to get the public behind self-driving

cars, ENGADGET (Oct. 9, 2017), https://www.engadget.com/2017/10/09/waymo-ad-campaign-get-

public-behind-self-driving-cars/?guccounter=1 [https://perma.cc/U7LV-3LUC].

122.  Id.

123.  Id.



2019] THE ROLE OF INTERNATIONAL CONSUMER POLICY 31

Other companies such as Intel and Uber were also slated to release statements
and advertisements concerning the new technology. Driverless cars may have the
ability to reduce accidents significantly.124 When commercialized, consumers
need to be aware of the potential risks and benefits, and also how to use them. A
parallel can be drawn to recent education campaigns which are informing
consumers about better options than smoking, such as quitting or switching to
less harmful alternatives.125 Communication efforts and education campaigns
discussing new technologies are aligned with the spirit and letter of the
Guidelines.

V. CONCLUSION

The theoretical foundations for freedom of expression, respect for autonomy,
and consumer protection support the notion that individuals should be provided
with truthful non-misleading information, in order to guide their autonomous
decisions. The newly revised version of the Guidelines places an enhanced
responsibility on businesses to provide information to consumers.

Reviewing the jurisprudence pertaining to commercial speech and consumer
protection in selected jurisdictions around the world shows that, while approaches
are different and there is a spectrum of communication restrictions and freedoms,
overall there is recognition of the benefit of providing essential information to
consumers. This benefit must be considered and weighed against potential risks
underlying the product and broader public concerns. The delicate balance
between businesses and governments, envisioned in the Guidelines, can be
achieved through allowing communication and simultaneously encouraging
substantiation of claims and effective enforcement measures to quell deceptive
practice.

In order to fulfill responsibilities under the “Principles for Good Business
Practices” section of the Guidelines, while in parallel propel product innovation
forward, businesses should be able to communicate science-based information to
consumers. As science and technology continues to evolve, approaches which
open the gateways of communication to consumers will encourage product
innovation, development, and advancements, which may ultimately have a
positive impact on society.

124.  UNECE paves the way for automated driving by updating UN international convention,

supra note 119.

125.  See, e.g., Unsmoke Your World, https://www.pmi.com/unsmoke (last visited Aug. 16,

2019) [https://perma.cc/PZ52-2W9F].