The case is R.J. Reynolds Tobacco Co. v. United States FDA (D.D.C. Feb. 29); the opinion grants plaintiffs summary judgment, for much the same reasons given in November, when the court issued a preliminary injunction. The FDA had mandated that “the top 50% of the front and back panels of every cigarette package” must include […]
Archive | Commercial Speech
Breyer’s Dissent in Sorrell and Carolene Products
By David Bernstein on June 24, 2011 7:27 am in Commercial Speech, Constitutional Law, Rehabilitating Lochner
In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” […]
Justice Breyer on Commercial Advertising
Justice Breyer’s dissent today in Sorrell v. IMS Health Inc. led me to do a quick check, and I found that Justice Breyer has never voted for First Amendment protection for commercial advertising in a nonunanimous case. He was in the speech-restrictive 5-4 majorities in Florida Bar v. Went For It, Inc. (1995). He was […]
Restricting Commercial Advertising Because It Might Persuade People
Today’s Sorrell v. IMS Health Inc. is a complicated case; I think the majority (the conservatives plus Justice Sotomayor) is basically right, but I don’t want to focus on the details of this particular case right now. Instead, I want to talk about what this case means to a much broader question having to do […]
Plastic Bag Makers Sue ChicoBag for Exaggerating Environmental Claims
Several manufacturers of disposable plastic bags have filed suit against reusable bag maker ChicoBag for false and misleading claims about the environmental superiority of its reusable bags over disposable bags. The complaint claims that ChicoBag’s advertising and promotional materials violate the federal Lanham Act and the South Carolina Unfair Trade Practices Act. According to the […]
Sorrell v. IMS Health
This important commercial speech and business law case was just argued this Tuesday, and my Mayer Brown LLP colleague Andrew Tauber has a very helpful and substantive summary of the oral argument; I highly recommend it to anyone who is interested in the subject.
Sixth Circuit Holds Ohio Can’t Prohibit “rbST-Free” Labels
Last month, in International Dairy Foods Association v. Boggs, the U.S. Court of Appeals for the Sixth Circuit struck down Ohio’s regulations barring dairy processors from labeling milk as “rbST-Free,” but upheld the agency’s ability to require disclaimers for some rbST-related product claims, subject to First Amendment constraints. In the process the decision illustrated […]
Should Genetically Modified Salmon Be Labeled?
The Food and Drug Administration is considering whether to approve genetically modified salmon for human consumption. Aquabounty Technologies has submitted its “AquAdvantage” salmon, an Atlantic salmon genetically engineered to mature faster than wild salmon, for FDA approval. Thus far, things look good for Aquabounty, as the FDA’s staff review concluded that AquAdvantage salmon are as […]