ANA Files Brief With U.S. Supreme Court in Important Case Involving Mandated Governmental Disclosures

WASHINGTON (Oct. 31, 2019) – The ANA (Association of National Advertisers) has filed a “friend of the court” amicus brief with the U.S. Supreme Court in a key case being appealed from the U.S. Court of Appeals for the Ninth Circuit dealing with government mandated advertising disclosures.

The Circuit Court applied a less stringent standard of First Amendment review to uphold a Berkeley, California ordinance requiring retailers to post a message from the City about radio frequency emission “risks” from cell phones despite FCC findings to the contrary. If it is not overturned by the Supreme Court, the Circuit Court’s decision in CTIA – The Wireless Association v. the City of Berkeley et al. would open the door to advertisers and marketers being forced to convey any such “disclosures” a particular government sees fit, whether state, local, or federal.

Dan Jaffe, ANA Group Executive Vice President, Government Relations, stated: “The Ninth Circuit’s decision means that any of the 30,000-plus governmental bodies in the United States, at any time, could decide that a legal product needs to carry with it a government’s preferred message with little regard to whether that message is warranted or not. This will blow a major hole in First Amendment protections for advertising and only serve to create mass confusion in the marketplace for both business and consumers. This misguided ruling needs to be overturned.”

Our brief argues that the Circuit Court ignored prior Supreme Court precedent and long-standing principles that have governed the level of protection given to commercial speech over the last 40 years. The Supreme Court, in its landmark 1985 Zauderer decision, established that disclosures meant to clear up misleading or deceptive commercial messages must be “purely factual and uncontroversial.” Our brief points out that the Circuit Court seriously misapplied the Zauderer standard by applying it in a case where there was no suggestion commercial speech was misleading. Additionally, the court incorrectly found Berkeley’s required disclosure was factual and uncontroversial, when there clearly is controversy over the danger posed by radio frequency emissions from cell phones. As other lower courts have struggled to apply the Zauderer test, further guidance is clearly needed from the Supreme Court.

“The Supreme Court has a unique opportunity to provide clarity to a major area of First Amendment commercial speech jurisprudence around compelled disclosures,” Jaffe continued. “We hope that the court will agree and grant the CTIA’s appeal.”

To learn more about ANA and our efforts to defend free speech, visit

The ANA (Association of National Advertisers)’s mission is to drive growth for marketing professionals, for brands and businesses, and for the industry. Growth is foundational for all participants in the ecosystem. The ANA seeks to align those interests by leveraging the 12-point ANA Masters Circle agenda, which has been endorsed and embraced by the ANA Board of Directors and the Global CMO Growth Council. The ANA’s membership consists of more than 1,600 domestic and international companies, including more than 1,000 client-side marketers and nonprofit fundraisers and 600 marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). Collectively, ANA member companies represent 20,000 brands, engage 50,000 industry professionals, and invest more than $400 billion in marketing and advertising annually.

Dan Jaffe
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