ADVERTISING AND THE LAW CHAPTER 13 Communications Law.

What is commercial speech? Commercial Speech is an expression, economic in nature, by a person or business entity persuading the audience to take certain action (e.g., purchase a product) with the intent of making profit. “speech that does no more than propose a commercial transaction” “expression related solely to the economic interests of the speaker and its audience”

Means of regulations Place (ads in certain places, media type, etc.) Type of advertisement (tobacco products, law firms, etc.) Content (indecent, false, etc.)

Historical development Before 1976, courts classified commercial speech as speech unprotected by the First Amendment. Unprotected does not mean prohibited. It means that before 1976 government had to use a simple rational justification for its regulations (such justifications are very difficult to challenge). However, such regulations were not common.

Valentine v. Chrestensen (1942) Facts of the Case F.J. Chrestensen violated a New York City municipal ordinance which prohibited distributing printed handbills in the streets bearing "commercial advertising matter." After being told by the Police that he could not distribute the handbills bearing the advertising matter, Chrestensen remade his handbill, by adding on the reverse side a protest against the City (presumably making it political speech)

Valentine v. Chrestensen (1942) Conclusion: A municipal ordinance forbidding distribution in the streets of printed handbills bearing commercial advertising matter, held constitutional. A constitutional right to distribute commercial advertising cannot be acquired by adding to the ads matter of possible public interest which, by itself, might be privileged but which is added with the purpose of evading the prohibition of the ordinance with respect to the advertising matter

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) Facts of the Case Acting on behalf of prescription drug consumers, the Virginia Citizens Consumer Council challenged a Virginia statute that declared it unprofessional conduct for licensed pharmacists to advertise their prescription drug prices. Question Is a statutory ban on advertising prescription drug prices by licensed pharmacists a violation of "commercial speech" under the First Amendment?

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) Conclusion: Yes. The Court held that the First Amendment protects willing speakers and willing listeners equally. The Court noted that in cases of commercial speech freedom of speech protections apply just as they would to noncommercial speech. The Court concluded that although the Virginia State Board of Pharmacy has a legitimate interest in preserving professionalism among its members, it may not do so at the expense of public knowledge about lawful business

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976) The Supreme Court ruled that commercial speech is generally protected by the First Amendment. “Advertising, however tasteless and excessive it sometimes may seen, is nonetheless dissemination of information as to who is producing and selling product for what reason, and at what price.”

Scientific American: Pharma Watch: Raising Awareness or Drumming Up Sales?Pharma Watch: Raising Awareness or Drumming Up Sales? Last Week Tonight with John Oliver: Marketing to Doctors (HBO)Marketing to Doctors (HBO)

FDA Drug Ads Rules.

Lawyers’ Advertising Bates v. Arizona State Bar (1977) Facts of the Case Arizona restricted advertising by attorneys. Bates was a partner in a law firm which sought to provide low-cost legal services to people of moderate income who did not qualify for public legal aid. Bates's firm decided that it would be necessary to advertise its availability and low fees. Question Did the Arizona rule, which restricted legal advertising, violate the freedom of speech of Bates and his firm?

Lawyers’ Advertising Bates v. Arizona State Bar (1977) Conclusion: Decision for Bates. The Court found that the Arizona law violated the First and Fourteenth Amendments. Commercial speech does merit First Amendment protection given the important functions it serves in society. Allowing attorneys to advertise would not harm the legal profession or the administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services.

Lawyers’ Advertising Bates v. Arizona State Bar (1977) LEFT FOR ANOTHER TIME: (from the opinion) First, we need not address the peculiar problems associated with advertising claims relating to the quality of legal services. Such claims… might well be deceptive or misleading to the public, or even false… Second, we also need not resolve the problems associated with in-person solicitation of clients at the hospital room or the accident site… Activity of that kind might well pose dangers of overreaching and misrepresentation... Hence, this issue also is not before us. (Justice Blackmun)

A humorous look at the lawyers ads Better Call Saul Jimmy McGill The Rainmaker

“Ambulance chasing” Ohralik v. Ohio State Bar (1978) FACTS: Appellant, an Ohio lawyer, visited an accident victim in her hospital room, where she signed a contingent-fee agreement. Then he did the same with another victim… Eventually, both young women discharged appellant as their lawyer and filed a complaint against the appellant The disciplinary Board of the Ohio Supreme Court found that appellant solicited clients in violation of certain Disciplinary Rules, and rejected appellant's defense that his conduct was protected by the free speech.

“Ambulance chasing” Ohralik v. Ohio State Bar (1978 ) Conclusion: For Ohio State Bar From the opinion: “In Bates v. State Bar of Arizona this Court expressly reserved the question of the permissible scope of regulation of "in-person solicitation of clients—at the hospital room or the accident site... Today we answer part of the question so reserved, and hold that the State or the Bar may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent. (Justice Powell)

Central Hudson Gas & Electric v. Public Service Commission of New York (1980) Facts of the Case The Public Service Commission of New York, in the interest of conserving energy prohibited electric utilities from promoting electricity use. The PSC's regulation distinguished promotional advertising from informational advertising, which was permitted. Central Hudson Gas and Electric challenged the regulation… Question Did the PSC's ban on advertising violate the freedom of speech?

Central Hudson Gas & Electric v. Public Service Commission of New York (1980) Conclusion Yes. The Court held that the ban violated the right to commercial speech. The Court cited the protections for "commercial speech from unwarranted governmental regulation" set forth in Virginia Pharmacy Board case. The Court recognized New York's interest in promoting energy conservation and accepted that the PSC's regulation would directly further that interest. However, since the regulation restricted all promotional advertising, it violated the First Amendment

Central Hudson’s Test (Four-Point) 1. Is the commercial message either misleading or related to illegal activity? 2. Does the government assert a substantial interest to be achieved by the restriction on speech? 3. Does the restriction directly advance this interest? 4. Is the restriction no more extensive than necessary?

In other words: The Commercial Speech Doctrine States That False or misleading advertising, as well as advertising about unlawful goods and services, receives no First Amendment protection.

In other words: The Commercial Speech Doctrine States That Truthful and non-misleading advertising about lawful goods and services receives an intermediate level of First Amendment protection— more protection than speech such as obscenity, which is not protected by the First Amendment, but less protection than political speech, which often is said to be at the core of the First Amendment.

Standard of judicial review Minimum Scrutiny Rational Standard / Legitimate Interest: requires the law to be reasonably related to a legitimate state interest. Intermediate Scrutiny Important governmental interest: requires the law to be substantially related to an important government interest Strict Scrutiny Compelling governmental interest: the law must be narrowly tailored to address a compelling state interest.

Commercial Speech Doctrine Analysis If it is commercial speech, then is the speech false or misleading, or does it pertain to an unlawful product or service? If so, then it receives no First Amendment protection and the analysis ends.

Commercial Speech Doctrine Analysis If the commercial speech is true, non-misleading, and pertains to a lawful product or service, then it receives First Amendment protection. It may, however, still be regulated and restricted if the government can prove three things:

Commercial Speech Doctrine Analysis the government must prove that: there is a substantial government interest that justifies the regulation; there is some evidence the regulation directly advances the substantial interest; and there is a reasonable fit between the state interest and the government regulation.

No “Vice Exception” Government cannot arbitrarily ban commercial advertisement. Examples: restrictions on advertisement newsracks, gambling ads, tobacco ads, alcohol ads HOWEVER, All regulations must meet a certain level of scrutiny: intermediate (or sometimes minimum)

“Vice Exception” Posadas de Puerto Rico v. Tourism Co. of P.R. (1986) FACTS: A Puerto Rican law restricted advertising by the island's casino gambling establishments. The law only allowed advertising that was targeted at tourists. Question: Did the law violate the First Amendment? Conclusion: No. Puerto Rico's desire to protect the "health, safety, and welfare of its citizens" by attempting to isolate them from casino advertising served a "substantial government interest."

No “Vice Exception” Rubin v. Coors Brewing Co. (1995) Facts of the case Coors Brewing Co. applied to the Bureau of Alcohol, Tobacco and Firearms for an approval of proposed labels. The approval was rejected because it violated the prohibition of disclosing the alcohol content on beer labels or advertisements. Question Does the prohibition violate the First Amendment’s protection of commercial speech?

No “Vice Exception” Rubin v. Coors Brewing Co. (1995) CONCLUSION: Yes. The Court held that for the government to regulate commercial speech, the government must have a substantial interest that the regulation directly affects. The government intended to limit the “strength wars” of competing beer companies, which could lead to greater alcoholism. The Court concluded that this interest was not substantial enough. There was no reason to believe that banning the alcoholic content on beer labels would prevent such social harms.

No “Vice Exception” Tobacco products Lorillard Tobacco Company v. Reilly (2001): Any regulations of cigarette advertising is preempted by the Federal Cigarette Labeling and Advertising Act of 1966 (amended) However, the sales regulations (place, age, etc) are legal The Act prohibits tobacco advertisement on radio and TV and requires health warning Other restrictions negotiated in the 1998 tobacco lawsuit

The old days…

Citizens United v. Federal Election Commission (2010) Citizens United sought an injunction against the FEC to prevent the application of the Bipartisan Campaign Reform Act (BCRA) to its film Hillary: The Movie. The Movie expressed opinions about whether Senator Hillary Rodham Clinton would make a good president. The BCRA prevents corporations or labor unions from funding such communication from their general treasuries. Citizens United argued that violates the First Amendment

Citizens United v. Federal Election Commission (2010) By a 5-to-4 vote, the majority held that under the First Amendment corporate funding of independent political broadcasts in candidate elections cannot be limited. The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation.

Federal Regulation of Advertising FTC – Federal Trade Commission. Nearly 100 years old, the FTC polices unfair methods of business competition and protects consumers from deceptive advertisements. FDA – Food & Drug Administration Responsible for protecting public health and ensuring that products like cosmetics, drugs, and food are honestly and accurately represented to the public.

FTC Definition of False or Deceptive Advertising 1. There must be a representation, omission or practice that is likely to mislead or to confuse the consumer. 2. The act or practice must be considered from the perspective of a “reasonable consumer.” 3. The representation, omission, or practice must be “material” such that it is likely to influence the purchasing decision.

False and deceptive advertising Perpetual "sales" Psychological pricing Advertising the maximum Bait and switch. Offering a product at a low price with no intention to sell it "Going out of business" sales: a message of urgency and "dumped" prices Scare tactics

False and deceptive advertising Units of sale and pricing Memberships. Problems in comparing prices of items sold in regular packages and bulk packages. Fillers and oversized packaging Hidden fees and surcharges

False and deceptive advertising Meaningless Awards: e.g., Best in class Meaningless terms: deluxe, advanced, hi-tech, heavy duty, super, ultra. Undefined terms: organic, light, low-tar, mild, natural,

Top Consumer Fraud Complaints to the FTC in 2006 Over 670,000 complaints filed Identity theft complaints represented 36 percent Shop-at-Home/Catalog Sales - 7 percent Prizes/Sweepstakes and Lotteries - 7 percent Internet Services and Computer - 6 percent Internet Auctions - 5 percent Foreign Money Offers - 3 percent Advance-Fee Loans and Credit Protection - 2 percent

Top Consumer Fraud Complaints to the FTC in 2015Consumer Fraud Complaints more than 2 million complaints overall Identity Theft 369,13218 percent Debt collection199,72110 percent Banks and Lenders132,340 6 percent Shop-at-Home and Catalog Sales 6 percent Prizes, Sweepstakes and Lotteries 5 percent Impostor Scams 4 percent Internet Services 4 percent Auto-Related Complaints 4 percent

FTC Tools & Remedies To Stop False Advertising Guides Voluntary Compliance Consent Agreements Litigated Orders Substantiation Corrective Advertising Injunctions Trade Regulation Rules

Lanham Act: Section 43(a) The federal trademark protection law The section of the Act allows for federal civil lawsuits based upon both false advertising and false endorsements.

POM Wonderful LLC v. The Coca Cola Company (2014) The Facts: The Coca-Cola Company introduced a new beverage called “Pomegranate Blueberry” in September Pom Wonderful LLC (“Pom”), a producer of pomegranate juice products, sued the Coca-Cola Co. for deceptive labeling under the Lanham Act.

POM Wonderful LLC v. The Coca Cola Company (2014) Coca-Cola’s product contains 99.4% apple and grape juices, 0.3% pomegranate juice, 0.2% blueberry juice, and 0.1% raspberry juice. Based on the “Pomegranate Blueberry” name and an illustration of a pomegranate, Pom argued that Coca-Cola misled its consumers through false representation of its product. Coca-Cola says the FDA permits naming products by their "minority" contents. The label is not misleading. It says "Pomegranate Blueberry Flavored Blend of 5 Juices.”

POM Wonderful LLC v. The Coca Cola Company (2014) Issue: Whether the court of appeals erred in holding that a private party cannot bring a Lanham Act claim challenging a product label regulated under the Food, Drug, and Cosmetic Act. Do the FDA and FDCA preempt private claims of false advertisement under the Lanham Act?

POM Wonderful LLC v. The Coca Cola Company (2014) Conclusion Yes. The Court held that, while it is the duty of the courts to harmonize statutes, the best way to do that in this case does not entail barring POM Wonderful's Lanham Act claims. Neither the Lanham Act nor the FDCA explicitly forbids or limits Lanham Act claims on labels that the FDCA regulates.

Quack Watch Operated by Stephen Barrett, M.D. Barrett, M.D Your Guide to Quackery, Health Fraud, and Intelligent Decisions For example: 25 Ways to Spot Quacks and Vitamin Pushers.