Category Archives: commercial speech

Grande deception?

Starbucks and the “free” college education for its workers: The reporting on Starbucks’ offer has gone beyond the headline—and if treated like ordinary advertising, that headline is misleading.  As it turns out, Starbucks will only pay in full for two … Continue reading

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Tough sledding: statements to industry-focused publication can be commercial speech

Skedco, Inc. v. ARC Products, LLC, 2014 WL 2465577, No. 3:13–CV–00696 (D. Or. Jun. 2, 2014) The parties compete in the market for emergency medical rescue equipment, and are suing over false advertising. Plaintiff’s Sked is “an evacuation sled system … Continue reading

Posted in commercial speech,, procedure | Leave a comment

New article: More than a Feeling: Emotion and the First Amendment

127 Harv. L. Rev. (forthcoming 2014). Abstract: First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the … Continue reading

Posted in commercial speech, defamation, dilution, disclosures, first amendment, my writings, trademark | Leave a comment

is noncompliance with FDA definitions inherently misleading?

The FDA just issued a rule for nutritional claims about DHA and EPA. Explanation here. Some of the comments objected to the proposed rule on First Amendment grounds, and the FDA’s response is of interest. Basically, there’s a special statutory … Continue reading

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conflict mineral disclosure unconstitutional, DC Circuit rules

National Association of Manufacturers v. Securities and Exchange Commission, No. 13-5252 (D.C. Cir. Apr. 14, 2014) If we needed an example of how the First Amendment can reinstate Lochner, this would be a good one.  Here we have a regulation, … Continue reading

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What does Lexmark mean for the "commercial advertising or promotion" test?

Goodman v. Does 1–10, No. 4:13–CV–139, 2014 WL 1310310 (E.D.N.C. Mar. 28, 2014) The first post-Lexmarkopinion I’ve seen, and a thoughtful one at that. The complaint alleged various defamation and unfair competition claims based on postings on a website,, … Continue reading

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Reading list: false advertising and prior restraint

Corinne Stuart, The Applicability of the Prior Restraint Doctrine to False Advertising Law(Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365, 2008), 21 Geo. Mason L. Rev. 531-555 (2014).  Argues that prior restraint doctrine should be applied to … Continue reading

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mandatory disclosure doesn’t have to correct deception

American Meat Institute v. United States Department of Agriculture, No. 13-5281 (D.C. Cir. Mar. 28, 2014) The court rejects challenges to meat labeling rules that demonstrate once again that commercial speech regulation and the post-Lochner settlement are inextricably linked. Here, … Continue reading

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pregnancy center isn’t commercial speaker; common sense can’t justify mandated disclosure

Centro Tepeyac v. Montgomery County, No. DKC 10–1259, 2014 WL 923230 (D. Md. Mar. 7, 2014) The court enjoins Montgomery County’s attempts to make an anti-abortion counseling center conspicuously disclose that they don’t have medical personnel on staff and that … Continue reading

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Texas anti-SLAPP law doesn’t protect lawyer’s ads

NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 2014 WL 941049, — F.3d —- (5th Cir. Mar. 11, 2014) M&B, a Texas law firm, solicited former dental patients from plaintiff Kool Smiles’ dental clinics as potential clients.  Allegedly, “M&B ran television, … Continue reading

Posted in acpa, advertising, commercial speech, defamation,, trademark | Leave a comment