SCOTUS, Please Clear Up the Mandatory Ad Disclosure Muddle!

February 27, 2018

ANA has filed an amicus curiae, or “friend of the court” brief, with the U.S. Supreme Court in support of CTIA-The Wireless Association’s case against government mandated radiation warnings for cell phones. CTIA v. Berkeley revolves around a Berkeley, California ordinance that requires wireless producers and sellers to provide a point of sale public notice regarding radio frequency safety, even though the warnings are counter to Federal Communications Commission (FCC) approved information that is provided when cellphones are sold. ANA believes this type of government mandated disclosure violates First Amendment constitutional protections for commercial speech.

The last court action in this case was a decision by a three-judge panel of the Ninth Circuit Court of Appeals which upheld the ordinance. Now, ANA and other concerned parties are urging the Supreme Court to review and vacate the lower court’s ruling. Not only does the ruling provide no logical stopping point for government-compelled messages in advertising, but it effectively allows local officials to force companies to make and pay for disclosures whenever the government feels like sending a “more than trivial” message. The decision also is at odds with the longstanding precedent that government mandatory disclosures are only permissible when advertising is deceptive or potentially misleading.

This precedent has been in effect since the Supreme Court’s ruling in Zauderer in 1985. In the years since, the courts have established a clear trajectory toward enabling greater protection for commercial speech, not less. Unfortunately, several lower courts have diverged from this precedent. The Supreme Court, therefore, needs to once again clarify the legal requirements in this area so that government entities, advertisers, and all companies or individuals who wish to market their products can have a firm understanding of the legal limits on government mandated disclosures. ANA strongly believes the First Amendment will require our nation’s highest court to strike down swiftly Berkeley’s misguided ordinance and reaffirm the safeguards against government-compelled messages.

In addition to the CTIA case, ANA is also active in American Beverage Association (ABA) v. San Francisco, which deals with a San Francisco ordinance mandating disclosure warnings on sugar-sweetened beverages. In ABA, a three member panel of the Ninth Circuit Court of Appeals decided to reverse a lower court’s denial of a preliminary injunction of San Francisco’s ordinance. San Francisco appealed, requesting an en banc rehearing of the Court of Appeals decision, which was recently granted. These conflicting decisions within a single Circuit demonstrate the need for the Supreme Court to step in to resolve and end this increasing legal muddle.

If you are interested in learning more about these cases or about advertising law in general, we invite you to attend our 2018 ANA Advertising Law and Public Policy Conference, March 15-16 in Washington, DC.

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