Federal Judge “SLAPPs” Down Lawsuit Demanding “R” Rating for All Movies Depicting Tobacco Use

ratingsOn November 10, 2016, a California federal judge dismissed a putative class-action lawsuit designed to force the Classifications and Rating Administration (CARA) to give an “R” rating to any film containing tobacco use.  Alleging that around 200,000 young people would start smoking every year after seeing tobacco use in G, PG, and PG-13 rated movies, the plaintiff in Forsyth v. Motion Picture Association of America, Inc. sued the Motion Picture Association of America (MPAA) (CARA is operated as a division of the association), the National Association of Theater Owners, and various major movie studios.  Because injunctive relief alone isn’t enough in most class actions, the complaint also sought $20 million in damages. Continue reading

A Sharing-Economy Giant Asserts its First Amendment Rights to Oppose Government Censorship

indexWhen prohibiting or reducing “harmful” economic conduct proves either politically unpalatable or otherwise unachievable, governmental regulators often target speech about the conduct as a convenient alternative. Rather than ban the sale of tobacco or sugary drinks, for instance, federal, state, and local governments have imposed restrictions on advertising and other promotional speech. Unable to generate support for a second Prohibition, temperance proponents have attempted to chill alcohol consumption through speech limits, such as proscribing disclosure of alcohol-by-volume percentage on beer labels and even censoring ads for happy hours. In 2016, the so-called sharing economy became the government’s latest target regulating conduct by proxy. Thankfully, online short-term rental platforms like Airbnb are fighting back with First Amendment challenges. Continue reading

Friday Finger on the Pulse: From Our Blogroll and Beyond

  • Class-action defendants can learn much from plaintiff-leaning law-review article on “statistical adjudication” after Tysons Food v. Bouaphakeo (Class Action Countermeasures)
  • By the Justice Department’s own measure of success, its Foreign Corrupt Practices Act “pilot program” is failing (FCPA Professor)
  • The case for why FTC, not FCC, should regulate internet privacy (Truth on the Market)
  • The Consumer Financial Protection Bureau joins the ranks of government censors with proposed gag rule on investigation targets (Overlawyered)
  • Online database IMDb.com files First Amendment challenge against California law banning inclusion of actors’ ages, citing rights of customers to receive information (Hollywood Reporter)
  • Suit claiming air emissions that fall to the ground constitute hazardous waste under Superfund proves too ambitious even for the Ninth Circuit (Marten Law Newsletter)
  • A new regulatory paradigm for SEC in 2017? (California Corporate & Securities Law via ProfessorBainbridge.com)
  • Competitors and whistleblowers will be the likely beneficiaries of FDA’s new online regulatory misconduct reporting tool (FDA Law Blog)

WLF Testifies at FDA Public Meeting on Off-Label Speech

FDA

Today, the US Food and Drug Administration (FDA) will hold a long-awaited public meeting to consider how off-label information about medicines can be shared with physicians. Washington Legal Foundation staff attorney Greg Herbers will testify at the meeting, which FDA has entitled “Communications Regarding Unapproved Uses of Approved Medical Products.”

Since WLF’s landmark victories in the Washington Legal Foundation cases, courts have consistently upheld the First Amendment right to communicate truthful and non-misleading information about the off-label uses of medical products.  For instance, in US v. Caronia, WLF represented an industry employee convicted of discussing a drug’s off-label benefits and won a reversal from the US Court of Appeals for the Second Circuit on First Amendment grounds.   WLF filed an amicus brief in a second case, Amarin Pharma v. FDA, in which a US federal district court followed the rationale of Caronia.  Those decisions presumably played a major part in FDA’s decision to reevaluate its approach to off-label communication.

The text of WLF’s testimony is available here.  WLF will also submit written comments to FDA in December.

USDA’s Unconstitutional Ban of Food and Beverage Ads Establishes Dangerous Precedent

high-school-cafeteria-coloradoIn the dog days of summer 2016, the US Department of Agriculture (USDA) ordered local government authorities to ban advertising for a select group of “disfavored” food and beverage products. The agency’s brazen action establishes a deeply troubling precedent in government’s efforts to usurp our freedom to choose what we eat and drink. Over the last several years, Washington Legal Foundation has closely tracked and strategically opposed actions such as USDA’s ban through our “Eating Away Our Freedoms” project. We launched that project five years ago this month on October 20, 2011.

The EatingAwayOurFreedoms.org website is organized by the four major tactics that activists use to denigrate certain foods and beverages and to stigmatize consumers’ choice of those products: regulation, litigation, taxation, and public-relations demonization. For several years, the “regulation” page contained far fewer references to news articles and other analyses than the other three. But as government’s appetite for food-related mandates and restrictions has grown, the number of “regulation” entries has ballooned. USDA’s ad ban is perhaps the most pernicious regulation EatingAwayOurFreedoms.org has ever encountered. Continue reading

Telecom Regulation Experts Question FCC’s Conformity to Law, Constitution at WLF Briefing

Speakers:

  • Commissioner Ajit Pai, Federal Communications Commission
  • Harold Furchtgott-Roth, The Hudson Institute and FCC Commissioner, 1997-2001
  • Brett A. Shumate, Wiley Rein LLP

Related WLF Materials:

 

In Mixed Opinion, Ninth Circuit Allows “All Natural Fruit” Litigation to Continue While Decertifying Class

dolefruitOn September 30, just two weeks after hearing oral argument in the case (which we previewed here), the Ninth Circuit released an unpublished opinion in Brazil v. Dole Packaged Foods, partially reversing the district court.  The opinion correctly upheld the district court’s dismissal of one of Brazil’s “outlandish theor[ies]” and its decertification of the class.  Unfortunately, the Ninth Circuit relied on nonbinding FDA guidance and warning letters to evaluate what would mislead a reasonable consumer, reversing the district court’s dismissal of his other claims.  Although not officially precedential, the opinion is worth reviewing because it has the potential to guide lower courts and gives insight into the Ninth Circuit’s future food-labeling decisions. Continue reading