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 www.ana.net/advocacy.

ABOUT THE ANA:

The ANA (Association of National Advertisers) accelerates growth for marketing professionals, brands, and the entire industry. With a mission to shape the future of marketing, the ANA sets the agenda for the industry, connecting its members to unparalleled expertise, industry-leading resources, and an influential global network. Representing over 1,600 companies — including 1,000+ client-side marketers, 600 marketing solutions providers, and 20,000 brands — ANA members collectively influence $400 billion in annual marketing spending. By championing the 12-point ANA Growth Agenda and the CMO Growth Council, the ANA drives actionable change, empowers marketers, shapes the marketing ecosystem, and delivers exceptional experiences at every touchpoint. Since 1910, the ANA has been setting the agenda for industry transformation. It enables marketers to advance their ambitions, make better decisions, and create lasting impact for their organizations and the industry.

MEDIA CONTACT:
Dan Jaffe
202.296.2359 (office)
646.369.4886 (cell)
djaffe@ana.net