A Good Outcome at the Supreme Court

June 28, 2018

The U.S. Supreme Court today reached a decision in an important case affecting the advertising and marketing community by vacating the Ninth Circuit’s ruling in CTIA-The Wireless Association v. City of Berkeley and sending it back for further review.  

Berkeley, California has an ordinance requiring cell phone manufacturers and retailers to provide notice at the point of sale regarding radio frequency safety, even though the warnings are counter to Federal Communications Commission (FCC) approved information that is provided when cell phones are sold. ANA believes that this type of government-mandated disclosure is contrary to the First Amendment protections for commercial speech – protections that have been repeatedly upheld and strengthened by the Supreme Court.  

ANA filed two amicus briefs in the appellate court (here and here), which upheld the ordinance. We joined others to urge the Supreme Court to review the case, where we also filed an amicus brief in February. Our brief argues that the appellate court decision to uphold the ordinance compels cell phone sellers to provide a disclosure unrelated to any interest in combating deception, and dilutes First Amendment protection from compelled commercial speech to allow governments to make misleading and redundant “disclosures” about cell phone safety. This is counter to the Supreme Court’s Zauderer decision, which held that mandatory disclosures are only permissible when advertising is deceptive or potentially misleading.

Earlier this week, the Supreme Court clarified in its decision in National Institute of Family and Life Advocates (NIFLA) v. Becerra that the First Amendment limits the government’s authority to compel speech by private parties, and vacated and remanded the Ninth’s Circuit decision in CTIA-The Wireless Association in light of that ruling. We are confident that, when the Ninth Circuit reviews the CTIA case in remand it will agree with ANA’s position.
Similarly, in another compelled disclosure case we are watching, American Beverage Association (ABA) v. San Francisco, the Ninth Circuit, which is scheduled to hear the case on appeal from a three-judge panel, also asked the parties to file new briefs taking into account the NIFLA decision this week. ANA has also filed amicus briefs in that case (here and here).

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