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VOLUME 118 DECEMBER 2004 NUMBER 2 ARTICLES PREFERENCES FOR PROCESSES: THE PROCESS/PRODUCT DISTINCTION AND THE REGULATION OF CONSUMER CHOICE Douglas A. Kysar TABLE OF CONTENTS INTRODUCTION ...............................................................................................................................526 I. THE PROCESS/PRODUCT DISTINCTION ...................................................................................535 A. International Trade and “Products As Such” ...................................................................540 1. Process-Based Trade Measures Under GATT/WTO Jurisprudence.........................541 2. The Special Case of Product Labeling..........................................................................548 B. Genetic Engineering and “Substantial Equivalence” ......................................................553 1. Modern Genetic Engineering Processes........................................................................554 2. U.S. Regulation of Genetically Modified Food Products............................................558 3. The Looming Trade War with Europe .........................................................................562 C. Commercial Speech and “Mere Consumer Concern” .......................................................569 1. International Dairy Foods Ass’n v. Amestoy: Mandatory Disclosure of Process Information...................................................................................................569 2. Nike, Inc. v. Kasky: Voluntary Disclosure of Process Information............................574 II. THE REGULATION OF CONSUMER CHOICE ...........................................................................579 A. Comprehending Preferences for Processes.........................................................................580 1. The Instrumental Account .............................................................................................582 (a) Sovereignty of Consumers.......................................................................................584 (b) Sovereignty of Nations ............................................................................................596 2. The Expressive Account.................................................................................................601 (a) The Utility of Process...............................................................................................604 (b) The Market for Expression .....................................................................................610 3. The Ethical Account.......................................................................................................615 B. Process Preferences in Global Civil Society......................................................................624 1. The Inevitability of Regulation .....................................................................................625 2. The Heroic Consumer.....................................................................................................632 CONCLUSION ...................................................................................................................................640 525 PREFERENCES FOR PROCESSES: THE PROCESS/PRODUCT DISTINCTION AND THE REGULATION OF CONSUMER CHOICE Douglas A. Kysar∗ 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 hortly after the terrorist attacks of September 11, 2001, U.S. Com- S merce Secretary Don Evans was quoted as saying, “People ask all ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ Visiting Associate Professor of Law, Harvard Law School. Associate Professor of Law, Cor- nell Law School. For helpful comments and suggestions, I thank Robert Ahdieh, John Applegate, Vicki Been, William Buzbee, Eric Freyfogle, Daniel Greenwood, Marc Miller, Trevor Morrison, Jeffrey Rachlinski, Eric Rasmussen, Steven Shiffrin, Jeffrey Stake, Buzz Thompson, and Tom Ulen, as well as participants in workshops at the University of Illinois College of Law, the Indi- ana University School of Law, Bloomington, the University of British Columbia Faculty of Law, the Cornell University Department of Science and Technology Studies, the University of Con- necticut School of Law, the Cornell Law School, the S.J. Quinney College of Law at the Univer- sity of Utah, the Chicago-Kent College of Law, the Emory University School of Law, and atten- dees of presentations at the 2003 Harvard Environmental Law Conference, the 2004 Stanford Law School Environmental Workshop Seminar, and the 2004 Stanford-Yale Junior Faculty Fo- rum. All misjudgments, errors, and omissions are my own. 526 2004] PREFERENCES FOR PROCESSES 527 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 politi- cal and popular discourse,2 this conflation of patriotism with consump- tion, 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 ap- peared as the primary, and at times the exclusive, avenue for citizen participation in the nation’s effort to recover from 9/11.3 A similar collapsing of citizen values and market values appears in the work of proponents of regulatory cost-benefit analysis. These thinkers argue that public safeguarding of endangered species, air quality, worker safety, and a host of other noncommodified goods should be derived not from the willingness of citizens to support pro- tective legislation through political activity, but from the willingness of individuals to reveal a “vote” in favor of such goods through their de- cisions as consumers, laborers, or other private market actors.4 These choices, the argument goes, are untarnished by voter irrationality, agency capture, paternalistic overreaching, bureaucratic inefficiency, or any of the numerous other ills often associated with government ac- tion.5 In a particularly dramatic illustration of this stance, John Gra- ham, head of the Office of Information and Regulatory Affairs for President George W. Bush’s Office of Management and Budget, sug- gested that revealed-preference methodologies could capture even the monetized value of liberty.6 For better or worse, then, the market and the consumer are central to public policy at the beginning of the twenty-first century. Indeed, Mark Sagoff’s careful effort to distinguish between the values that in- dividuals express in their capacities as citizens and those that they ex- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 Brandon Loomis, Commerce Secretary Urges Shopping, AP ONLINE, Nov. 19, 2001, 2001 WL 30246793 (internal quotation marks omitted). 2 See generally LIZABETH COHEN, A CONSUMER’S REPUBLIC: THE POLITICS OF MASS CONSUMPTION IN POSTWAR AMERICA (2003). 3 Cf. Martha T. McCluskey, Efficiency and Social Citizenship: Challenging the Neoliberal At- tack on the Welfare State, 78 IND. L.J. 783, 786 n.8 (2003) (“Another example of the neoliberal transformation of citizenship is the idea that Americans should express their patriotism in re- sponse to the attacks of September 11, 2001 by going shopping.”). 4 Such “votes” can occur either through the “revealed preferences” of actual individual market behavior or through the observed responses of subjects to experimental techniques, such as con- tingent valuation surveys, that

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