ANA Urges Supreme Court to Review Berkeley Cell Phone Case

The Association of National Advertisers (ANA) has urged the U.S. Supreme Court to accept and review a critically important case involving government-imposed warnings – an ordinance of the City of Berkeley, California which mandates wireless producers and sellers to provide a point of sale public notice regarding radio frequency safety. Berkeley’s required notice contradicts federal findings that cell phones are safe. ANA filed its amicus curiae, or “friend of the court” brief, in support of CTIA-The Wireless Association, arguing that the Court needs to reconcile the law governing compelled commercial speech with general First Amendment principles and the commercial speech doctrine.

“Since 1985 in the Zauderer case, the Supreme Court has held that some disclosures in ads may be required to protect messages from misleading consumers. However, the City of Berkeley’s ordinance is a gross overreach and puts a fundamental principle of the constitution at risk,” said Dan Jaffe, Group Executive Vice President of Government Relations for ANA. “Any ruling where a court effectively allows local officials to compel companies to make disclosures whenever they feel like sending a government message, even when there is no suggestion that advertising is potentially misleading, sets a highly dangerous precedent. The potential implications of the decision by the Ninth Circuit Court of Appeals are staggering.”  

The ANA brief urges the Court to review and vacate a decision by a three-judge panel of the Circuit which upheld the Berkeley ordinance. The brief notes that the lower court decision provides no logical stopping point for government-compelled speech: “The issues in this case transcend cell phones or confusing multi-sentence disclosures on point-of-sale posters and handouts. They affect any lawful product or service about which the government has something it wants to say and believes commercial speakers should be its messenger. If this view of the law were to prevail, every one of the some 30,000 city, town and county governments in the U.S. would be free to impose whatever disclosures they could ‘rationally’ justify, with virtually no limit to similar efforts targeting other products, even if there is no risk of misleading or deceptive claims.”     

Jaffe noted, “This case brings the advertising community to a critical juncture regarding the constitutionality of compelled disclosures. The Supreme Court has established a clear trajectory toward enabling greater protection for commercial speech, not less. The City of Berkeley must not be allowed to force commercial speakers to carry the government’s message, especially one contrary to scientific evidence and the FCC’s express findings.”

ANA’s brief stated: “Where a disclosure is not necessary to cure misleading speech or otherwise serve a substantial governmental interest, no justification can support conscripting commercial speech as a vehicle for a government message.”

Jaffe concluded: “ANA is also involved in another lawsuit challenging a San Francisco ordinance which requires health warnings in ads for certain sugar-sweetened beverages. We must stop this effort to require that ads become placards for government messages. We hope the Supreme Court will take this opportunity to hold that compelled disclosure mandates such as Berkeley’s are incompatible with the strong protections the First Amendment affords commercial speech.”