Can the Federal government (Congress/agency) mandate that private firms offer a specific product?
Example: Seller of wood tables MUST also offer plastic table.
OR...
All hardware stores (defined properly) must sell hammers.
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1Non-US examples: In Sweden, there is AFAIK a law that grocery stores that shelf non-organic versions of certain goods must also offer an organic variant. In Germany, there is a law that restaurants must offer a non-alcoholic beverage that's not more expensive than the least expensive alcoholic beverage.– Philipp ♦Commented Nov 11, 2022 at 8:46
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1There is a subtle but important difference between actually exchanging items for money and offering to do so. The word "sell" is used in both senses, but the government's ability to mandate the two is not necessarily the same. I think you're asking about the latter sense, but your one answer so far is focused on the former sense.– John BollingerCommented Nov 11, 2022 at 14:42
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Good clarification, JB. The question means to ask whether private entities can be mandated to offer products (for sale) when they enter the stream of commerce. The mandate to offer non-alcoholic beverage, above, is a good example.– Rodrigo A.Commented Nov 11, 2022 at 20:39
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Maybe you could clarify if you mean if they have the means or if it's constitutional. The two are unfortunately distinct.– Andris BirkmanisCommented Nov 11, 2022 at 23:59
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@Phillip - In Germany, is water generally more expensive than alcohol? I would not have imagined that such a law would even be necessary.– Obie 2.0Commented Nov 12, 2022 at 2:58
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1 Answer
Yes, under the current interpretation of the Commerce Clause, the Federal Government can regulate (in the sense of control rather than "make regular") commerce.
It can, for example,
- mandate that all gasoline which is commercially sold must have a certain non-gasoline ingredient added to it. And it did so with ethanol until a few years ago.
- it can mandate that all cars which are sold have certain safety features (such as seat belts).
- it can mandate that all telephone services, offered to the general public by the for-profit telephone companies, must also provide access to the 911 "emergency services" numbers.
The government cannot do this arbitrarily. There are certain requirements which these mandates must pass, but they (for the most part) boil down to having a good reason for doing it.
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Does this address the case where the gov't wants to mandate, say, that any dealer selling cars must also offer to sell bicycles? I think that case would be closer to the OP's question. These cases seem to be more regulating a single sold product, not compelling the offer of other related products.– user2164Commented Nov 11, 2022 at 14:29
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2@Undo It's address a little bit, wrod does mention that the gov't cannot do this in a manner that is (to quote the specific case law) "arbitrary or capricious." So if they tried to make an auto-seller also sell bicycles, they'd get sued and would lose in court. But if they wanted to force a dealership that was selling SUVs also sell higher fuel-economy options like sedans, that would probably fly. Commented Nov 11, 2022 at 14:50
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Isn't this the principle that allows laws like the Defense Production Act?– BarmarCommented Nov 11, 2022 at 17:09
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@Undo the situation with the 911 service actually matches what you describe when it comes to land-line phone service. The land-line local phone service acts as a reseller of other company's long-distance services. So it's analogous to a retailer selling others' products. But the government also mandates that they must provide access (for free) to a yet another product as part of what they sell.– wrodCommented Nov 12, 2022 at 1:08