Preferences for Processes: the Process/Product Distinction and the Regulation of Consumer Choice

TABLE OF CONTENTS INTRODUCTION I. THE PROCESS/PRODUCT DISTINCTION A. International Trade and "Products As Such" 1. Process-Based Trade Measures Under GATT/WTO Jurisprudence 2. The Special Case of Product Labeling B. Genetic Engineering and "Substantial Equivalence" 1. Modern Genetic Engineering Processes 2. U.S. Regulation of Genetically Modified Food Products 3. The Looming Trade War with Europe C. Commercial Speech and "Mere Consumer Concern" 1. International Dairy Foods Ass'n v. Amestoy: Mandatory Disclosure of Process Information 2. Nike, Inc. v. Kasky: Voluntary Disclosure of Process Information II. THE REGULATION OF CONSUMER CHOICE A. Comprehending Preferences for Processes 1. The Instrumental Account (a) Sovereignty of Consumers (b) Sovereignty of Nations 2. The Expressive Account (a) The Utility of Process (b) The Market for Expression 3. The Ethical Account B. Process Preferences in Global Civil Society 1. The Inevitability of Regulation 2. The Heroic Consumer CONCLUSION PREFERENCES FOR PROCESSES: THE PROCESS/PRODUCT DISTINCTION AND THE REGULATION OF CONSUMER CHOICE This Article examines a conceptual distinction between product-related information (such as whether a consumer good threatens to harm its user) and process-related information (such as whether a good's production harmed workers, animals, or the environment) that has appeared in various guises within international trade law; domestic environmental, health, and safety regulation; and constitutional commercial speech jurisprudence. This process/product distinction tends to dismiss information concerning processes as unworthy of attention from consumers or regulators, at least so long as the processes at issue do not manifest themselves in the physical or compositional characteristics of resulting end products. Proponents have offered the process/product distinction as a useful device for determining when consumer product regulations are likely to have drifted beyond the satisfaction of significant consumer interest into areas of unjustified alarm, disguised protectionism, or excessive encroachment onto competing interests, such as the speech concerns of product manufacturers or the domestic sovereignty of foreign nations. As this Article shows, however, the process/product distinction proves far too thin and formalistic of a conceptual device, once one examines the full panoply of reasons why consumers might express preferences for processes. Thus, rather than dismissing process preferences as especially likely to be ill-informed or otherwise objectionable, this Article argues in favor of acknowledging and accommodating such preferences within theoretical frameworks for policy analysis. Indeed, in view of several growing phenomena--including the cultural and political significance attached to the consumption function, the effort by regulatory cost-benefit analysts to ground public policies on the values revealed by individuals acting in their roles as market actors, and the integration of global product markets without similarly expansive integration of the global regulatory system --this Article concludes that, in the future, process preferences may serve as indispensable outlets for public-regarding behavior. INTRODUCTION Shortly after the terrorist attacks of September 11, 2001, U.S. Commerce Secretary Don Evans was quoted as saying, "People ask all the time, 'What can I do, what sacrifices can I make for my country?'" His answer: "Go back to the stores." (1) Although long present in political and popular discourse, (2) this conflation of patriotism with consumption, of civic life with market life, became unmistakably apparent in the wake of the World Trade Center and Pentagon disasters. Across the airwaves and in the newspapers, private consumer spending appeared as the primary, and at times the exclusive, avenue for citizen participation in the nation's effort to recover from 9/11. …