Ninth Circuit A Hotspot for Troubling Advertising Law

October 27, 2017

Recent action by the Ninth Circuit U.S. Court of Appeals has taken a troubling turn away from the trajectory of increasing First Amendment protections for commercial speech. In CTIA v. Berkeley, a divided panel of the Ninth Circuit has declined to enjoin a mandated disclosure ordinance requiring point-of-sale warnings for cellphones. These warnings would tell consumers of the potential for heightened exposure to radiation when a cellphone is carried close to one’s body. However, these warnings have no basis in fact and are counter to Federal Communications Commission (FCC) approved information that is provided when cellphones are sold. ANA filed an original amicus brief in support of CTIA and a second brief in support of enjoining the ordinance.

This decision by the Ninth Circuit seems to contradict a ruling in American Beverage Association v. San Francisco where a different panel of the same court reversed a refusal to preliminary enjoin an ordinance requiring a similar warning. This case also deals with mandated disclosures, this time for sugar-sweetened beverages, but the warnings were required to be placed within the advertisements themselves and take up roughly 20% of the ad space. The panel found that these warnings were not only misleading, but that they also imposed the city’s “disputed policy views” on advertisers. ANA also filed two amicus briefs in this case (here and here).

While we await further action by the courts in regard to next steps in both of these cases, we encourage you to learn more about the implications for your company of these commercial speech rulings. Robert Corn-Revere and Ronald London of Davis Wright Tremaine have written a summary which clearly lays out the confusing and troubling precedents being set by the Ninth Circuit.


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