Tag Archives: First Amendment

Ninth Circuit Concludes No First Amendment Issue with California Ban on Paid in-Store Alcohol Advertisements

Last month, the Ninth Circuit, sitting en banc, upheld a California “tied house” law prohibiting manufacturers and wholesalers from providing anything of value to retailers in exchange for advertising their alcohol products. Retail Digital Network, LLC, (“RDN”) an advertising agency that placed advertisements in wine and spirit retail stores, alleged that alcohol manufacturers and wholesalers … Continue Reading

FTC Extension of Robocalling Rules Is Approved By Federal Court

Last week, a D.C. District Court declined to find the Federal Trade Commission’s decision to extend robocalling restrictions to telemarketing calls that use “soundboard” technology unconstitutional or in violation of any procedural rules. The Soundboard Association, a telecommunications interest group, argued that the FTC rule was unconstitutional because the FTC bypassed the notice-and-comment requirements typically … Continue Reading

Seventh Circuit Upholds Indiana Ban on Robocalls

Last week, the U.S. Court of Appeals for the Seventh Circuit upheld an Indiana statute banning robocalls, concluding that the statute was evenly applied in an effort to prohibit unsolicited calls made without a recipient’s consent regardless of the content of the message or the identity of the caller. Patriotic Veterans, Inc. brought suit arguing … Continue Reading

Don’t Be Offended: Supreme Court Set to Decide Whether Offensive Trademark Ban Violates First Amendment

The United States Supreme Court, on September 29, 2016, granted certiorari in a case involving petitioner Simon Tam, his band, The Slants, and the band’s attempt to register their band name as a trademark. Commentators believe this case will resolve the question of whether the Lanham Act’s prohibition on the registration of disparaging or offensive trademarks … Continue Reading

Two Rights of Publicity Decisions Explore the Boundaries of Commercial Speech in Commemorating Public Figures

Two recent rights of publicity cases illustrated the parameters of using a public figure’s name, likeness, identity or image for commercial purposes, without consent for commemorative purposes. But when does commemoration cross the line into unlawful use of one’s right of publicity? Jordan v. Jewel Food Stores, Inc., No. 10-c-340 (N.D. Ill. Mar. 12, 2015) … Continue Reading

FTC Ignores the First Amendment with $9 Million Fine Against Weight Loss Supplement Company

On January 26, the manufacturer of a green coffee bean extract (GCBE) agreed to pay the Federal Trade Commission $9 million to settle charges brought by the FTC that the manufacturer deceptively advertised weight loss benefits of GCBE. Lindsey Duncan, through his companies Genesis Today, Inc. and Pure Health, LLC (the “defendants”), promoted GCBE on … Continue Reading

Advocacy Groups Say FTC is at Odds with the First Amendment

Two nonprofits, the Alliance for Natural Health - USA, and TechFreedom, released a report last week alleging that the Federal Trade Commission broke free speech laws when in January 2013, it barred POM Wonderful from asserting that its pomegranate juice is "effective in the diagnosis, cure, mitigation, treatment, or prevention of any disease," including heart disease, prostate cancer, and erectile dysfunction, unless the claim is supported by two randomized, well-controlled, human clinical trials. In their report, the nonprofits estimate that the two clinical trials required by the FTC could cost up to $600 million each. The POM order highlights the balancing act between requiring substantiation to ensure a claim is truthful and not misleading to consumers, and overly burdensome substantiation requirements that suppress otherwise truthful speech. The nonprofits' report criticizes the FTC's ruling as falling into the latter category by requiring an enormously increased level of substantiation.… Continue Reading

Chilly Reception at the White House

On January 6, 2010, The Weatherproof Garment Company (a division of David Peyser Sportwear) put up a billboard (actually two, a diptych) in New York’s Times Square. The advertiser used an Associated Press (AP) licensed photo of President Barack Obama during his visit to China’s Great Wall back in autumn wearing a Weatherproof jacket. Legal … Continue Reading
LexBlog