Category Archives: Commercial Free Speech

by

Here We Go Again? Mandatory Biotech Food Labeling Initiative Moves Forward in Washington (State)

Genetically-enhanced wheat

Genetically-enhanced wheat

Cross-posted at WLF’s Forbes.com contributor page

Not even a year after fighting a bruising and costly battle over the “California Right to Know Genetically Engineered Food Act” (Proposition 37), proponents and opponents of mandatory biotech food labeling are poised for a rematch in the state of Washington. In February, the Secretary of State’s office certified ballot initiative I-522, The People’s Right to Know Genetically Engineered Food Act, and forwarded it to the legislature.

Under Washington law, the legislature can either enact it into law, reject it or refuse to act on it, or approve an amended initiative. If lawmakers don’t act on, it goes to a public vote in November. If the legislature alters it, then both the altered version and the original version go on the November ballot. The likeliest scenario is no legislative action, which puts I-522 in the voters’ hands.

The similarities between the defeated California initiative and the impending Washington proposal go beyond their titles. The Washington proposal, authored by an advertising executive, embraces the spirit, if not the letter, of many of Prop 37′s provisions. One provision it did not borrow from Prop 37 was that initiative’s prohibition of “Natural” and “All-Natural” on food labels.

Some initial thoughts on I-522: Continue reading →

by

Federal Government Abandons Defense of Graphically Unconstitutional FDA Tobacco Warnings

nosmokingAfter obtaining extension after extension from the U.S. Supreme Court (something our Rich Samp criticized here a few weeks ago), the time had come this week for the federal government to “fish or cut bait,” as it were, on whether it would urge reversal in one case involving the FDA’s graphic tobacco warnings, and oppose certiorari in another case.

As reported by several news outlets this morning, the Department of Justice announced that it would not seek Supreme Court review of the U.S. Court of Appeals for the D.C. Circuit’s R.J. Reynolds Tobacco Co. v. FDA decision. There, the court held in a facial challenge that the tobacco warnings violated the companies’ First Amendment rights. DOJ’s decision not to pursue reversal leaves in place a powerful precedent which businesses in other industries might deploy in situations where government labeling or warning requirements go beyond disclosure of pure, noncontroversial facts. The Washington Post story noted that FDA said it would “go back to the drawing board and ‘undertake research to support a new rulemaking consistent with the Tobacco Control Act.’” So that’s the end of the controversy for now, right?

Not necessarily. The government has until Friday to respond to a petition in the Supreme Court that it review another challenge to the graphic warnings, this one an “as applied” challenge rather than a “facial” challenge. The Sixth Circuit upheld the graphic warnings in American Snuff Co. v. United States. No doubt, the Solicitor General will argue that its decision not to appeal R.J. Reynolds Tobacco Co. obviates the need for the Court to grant certiorari in American Snuff. Will the justices take the government at its word that it now realizes the warnings can’t survive First Amendment scrutiny and that FDA will “go back to the drawing board”? If one were to look at the FDA web page on the graphic health warnings, one might question FDA’s interest in giving up the fight.

by

Another Grocery Basket Full of Lawsuit Claims for The Food Court

Heading to The Food Court?

Heading to The Food Court?

Cross-posted at WLF’s Forbes.com contributor page

Gum, crackers, granola, fruit punch, cheese, nuts and nut mixes, lemonade, stuffing mix, gelatin, easy bake mac-and-cheese.

A good day’s shopping for most, but for some, such as California resident Susan Ivie, this basket full of goods represents a lawsuit in the making. Ms. Ivie purchased these products, produced by Kraft Foods, Cadbury, and Back to Nature, over a four-year period. Upon discovering that those companies had, in her opinion, duped her into making those purchases through false or misleading statements, Ms. Ivie contacted some lawyers, and volunteered to be the lead plaintiff in a class action lawsuit.

Well, we’re not sure if Ivie v. Kraft Foods Global et. al actually came about that way, but a recent decision in the suit provides us another opportunity to opine about the proliferation of food labeling lawsuits and the preferred venue for these claims: The Food Court (aka the U.S. District Court for the Northern District of California). To learn more about this litigation trend and why the Northern District is so popular, read a recent story from The Recorder, coincidentally called “Welcome to Food Court“, or read our numerous past posts which use that moniker.

State-level enforcement of federal labeling rules. Ivie pleads her case under, among other laws, California’s “Sherman Laws.” Those laws explicitly adopt all federal food labeling laws and regulations. This tactic allows plaintiffs, and federal judges, to do what federal law explicitly reserves to the FDA — interpret and enforce food labeling rules. Defendants, such as Kraft, Cadbury, and Back to Nature, have tried to get such claims dismissed by arguing the “primary jurisdiction doctrine” and federal preemption. In Ivie, Judge Ronald Whyte went through Ms. Ivie’s shopping cart, item by item, and examined the defendants’ arguments. Continue reading →

by

Expert Speakers at WLF Program Address Promise and Perils of FTC “Green Guides”

ecofriendlyAt a February 21 WLF Web Seminar, Sustainable “Green Advertising”: Implications of FTC’s Guidelines for Public, Private, and Self-Regulation, two private attorneys and a forestry trade association environmental expert offered a revealing tour through the provisions and pitfalls of the Federal Trade Commission’s (FTC) guidelines for “green advertising.” The Commission issued the third edition of its “Green Guides” in October 2012.  The Guides inform FTC’s use of its “unfair advertising” authority under Section 5 of the FTC Act and are also specifically incorporated by reference in numerous state consumer protection acts, most prominently California’s.

The presenters at this hour-long program, which can be viewed for free by clicking the title above, were Crowell & Moring partner Christopher Cole and associate Natalia Medley, along with American Forest & Paper Association Senior Director of Energy and Environmental Policy Jerry Schwartz.

The speakers organized their remarks with a Powerpoint presentation, which is available visually to those who view the program.  The slide deck is also available here.

Some of the interesting insights that you will hear from our speakers include:

  • Products which may meet the thresholds required under federal environmental regulations to qualify as “non-toxic” may not be marketed as such under the Green Guides if trace amounts of toxic materials are present.
  • The marketing of products as “non-toxic” or “free of” certain substances will likely be two of the most challenged practices under the guides.  Those challenges will most likely be brought by companies against other companies, especially larger companies vs. smaller companies.
  • The concept of “recycled content” was one of the most hotly contested during debate and discussion leading to the finalization of the Guides.  For instance, textile and paper companies which utilize scraps of materials generated from production in further production cannot claim such products were made with “recycled content” because in the FTC’s mind, such usage is a routine industry practice.
  • Class action plaintiffs’ lawyers might use the Green Guides as a baseline for filing private shareholder class action lawsuits challenging public companies’ “sustainability reports”.
by

Finger on the Pulse: From Our Blogroll and Beyond

  • A breath of fresh air from California: A class of a substantial number of uninjured plaintiffs cannot be certified, says federal judge (Class Defense)
  • In advance of argument in FTC v. Watson, FTC spins its data to show “increase” in “pay for delay” drug patent litigation settlements (FDA Law Blog)
  • In advance of argument in Bowman v. Monstanto, U.S. House member seeks to impose compulsory license on genetically engineered seed patents (Patent Docs)
  • Class action alleging misleading “natural” labeling on orange juice dismissed for lack of standing (Mass Tort Defense)
  • EPA drops “chicken droppings are pollution” suit against West Virginia farmer (Daily Caller via Overlawyered)
  • From the “here we go again” department: New Mexico and Washington pursue mandatory “GM food” labeling (Private Surgeon General Class Action Defender)
  • What to expect from OSHA in 2013 (OSHA Law Update)
by

SCOTUS’s IMS Health Ruling Should Change 4th Circuit’s Mind on Alcohol Ad Ban

4th Circuit

Cross-posted at WLF’s Forbes.com Contributor Page

Virginia’s controversial ban against alcohol advertisements in college newspapers is back before the U.S. Court of Appeals for the Fourth Circuit (Educational Media Co. at Va. Tech, Inc. v. Insley).  Back in 2010, that court reversed a district court’s order overturning the ban for failing the third prong of Central Hudson—the “directly and materially advances” prong.  In the view of the Fourth Circuit, the mere “common sense” connection between advertising and demand was sufficient for Virginia to ban alcohol advertising in college newspapers to further its interest in combating underage drinking.

That ruling involved only a facial challenge.  The next phase of litigation involves an as-applied challenge and a claim that Virginia’s ban discriminates against a narrow segment of the media (both unsuccessful below), which are back before the appeals court.  But as WLF argues in its amicus brief to the 4th Circuit, a lot has changed for commercial speech jurisprudence since 2010—most notably, the Supreme Court’s decision in Sorrell v. IMS Health Inc.

In Sorrell, the Supreme Court overturned a Vermont law that prohibited the dissemination of certain prescriber-identifying information for pharmaceutical marketing purposes.  In overturning that law, Sorrell made clear that where a law restricts truthful, non-misleading commercial speech on the basis of its content and the identity of its speaker, that law must be subjected to “heightened judicial scrutiny.”  Sorrell also made clear that content- and speaker-based restrictions on commercial speech will fail such heightened scrutiny in the ordinary case. Continue reading →

by

Federal Court Rulings Reflect a “Commercial Speech” Doctrine in Need of Recalibration

Cross-posted at Forbes.com on WLF’s contributor site

In the past month, two different federal circuits held that Seattle’s Yellow Pages are noncommercial speech (Dex Media West v. Seattle) and a Texas trial lawyer’s website address is (probably) commercial speech (Gibson v. Tex. Dept. of Ins.). These divergent rulings, and the differing level of First Amendment protection they impose, reinforce Washington Legal Foundation’s long-held opinion that the U.S. Supreme Court must reconsider its “commercial speech doctrine.” Below, we offer some thoughts on a different approach.

Line Drawing. U.S. Supreme Court precedent requires judges to draw lines around speech when analyzing government restrictions. Court rulings in 1976 and 1980 determined that speech which does “no more than propose a commercial transaction” is entitled to less First Amendment protection than “pure” political speech. Some communications, such as advertisements, obviously fit on the “commercial” side of the line. But other speech isn’t so easily categorized, leading to needlessly convoluted judicial review which can silence or chill valuable speech.

What are the Yellow Pages? For instance, in Dex Media West, the Ninth Circuit had to categorize Seattle’s Yellow Pages, the distribution of which the city wanted to curtail for environmental reasons. Common sense may dictate that the Yellow Pages are quintessentially commercial. But the circuit court concluded that the existence of some noncommercial information – maps, individuals’ phone numbers, government office locations – in the Yellow Pages rendered the entire volume noncommercial. Continue reading →

by

State and Local Food Labeling and Soda Tax Initiatives Defeated

A number of ballot initiatives that we’ve been offering information and commentary on both here at The Legal Pulse and at Washington Legal Foundation’s Eating Away Our Freedoms site were put to a vote in California on Election Day.

At the state level, California voters rejected Proposition 37, which would have required mandatory labeling for most food products impacted by genetic engineering. Supporters at the outset of the Prop 37 campaign were loudly touting polls that reflected over 70% support for mandatory biotech labeling. The initiative failed in the end with 53% of the vote against.  Some news articles on the outcome and expected aftermath:

At the local level, the residents of two California towns, Richmond and El Monte, voted on the imposition of “sin” taxes on soda and other sugary drinks. Richmond voters rejected the taxes with 67% “no” votes, while 76% of El Monte voters turned down the levy. More here from Mercury News.

by

Update: San Francisco Seeks Rehearing of 9th Circuit Loss on Cellphone Warnings

Cross-posted at Forbes.com’s WLF contributor site

R-E-S-P-E-C-T

To find out what it means to the City by the Bay, read the request for rehearing en banc City Attorney Dennis Herrera filed October 19 with the U.S. Court of Appeals for the Ninth Circuit. The request seeks a full-circuit reconsideration of a Ninth Circuit panel’s September 10 per curiam, unpublished, three-page ruling on the city’s cell phone warning ordinance. As we noted in a previous Legal Pulse post, the panel reversed the District Court and held that a law requiring retailers to inform customers that cell phones may cause cancer violated retailers’ First Amendment rights.

San Francisco urged the Ninth Circuit to

order rehearing en banc to give this important constitutional issue the treatment it deserves, to give San Francisco’s democratically elected policymakers the respect they deserve, and to provide jurisdictions in the circuit with the guidance they deserve.” (our emphasis)

The same city which two years ago banned Happy Meals feels righteous about their progressive, precautionary cell phone warning. The Board of Supervisors jumped ahead of California and the federal government, neither of which has felt the need to warn consumers about the alleged risks. The World Health Organization had classified RF Energy—which cell phones emit—as a “possible carcinogen,” and that was good enough for San Francisco. So of course the city felt dissed by the appeals court’s cursory dismissal. Continue reading →

by

California’s Proposition 37: An Impending “Natural” Disaster?

Cross-posted at WLF’s Forbes.com contributor site

In a 1960 opinion, Judge Henry Friendly began by asking “what is chicken?”  While an amusing question–even children know a chicken when they see one–the query was more nuanced as a matter of law.  California courts are finding themselves asking a similar question: what is “natural?”

Some products are intuitively so: with raw apples, almonds, or broccoli, it seems apparent.  But what happens when you make apples into apple juice, or roast those almonds, or blanch that broccoli before freezing it for later use?  These finished products are widely considered wholesome, and many would argue an almond is an almond (with the exception of the raw foods movement.)

The dictionary has fifteen different definitions for “natural”.  The first is: “based on an inherent sense of right or wrong”–an intrinsically subjective definition.  Given the ambiguous nature of the term, it’s no wonder the federal Food and Drug Administration (FDA) has been loath to come out and define “natural” for advertising and promotional purposes.  But when businesses are begging the FDA to come in and regulate them, something must be amiss.  And indeed, it is.  Lawsuits contesting food companies’ use of the term “natural” have proliferated, most notably in the “Food Court,” i.e. the U.S. District Court for the Northern District of California.  Businesses now simply want clarity.  And if these lawsuits are really driven by concern for consumers’ well-being, so should the plaintiffs. Continue reading →