Ch11







Pelman v. McDonald’s Corporation (Court of Appeals)


The plaintiff parents in this case contended that the corporate owner of McDonald’s restaurants deceptively led the public to believe that the restaurants’ food was nutritious, and that the children who consumed the food developed a host of detrimental health problems. The defendants argued that the vague allegations of reliance on a long-term deceptive campaign were insufficient to fulfill the reliance requirement of the applicable state law, and also failed to draw an adequate causal connection between the children’s consumption of the food and their alleged injuries.


The lower court had dismissed the plaintiffs’ complaint, but the United States Court of Appeals for the Second Circuit held that the allegation against the restaurants was sufficient to survive a motion to dismiss, and any information concerning other possible causes of the children’s conditions was the proper subject of subsequent discovery. The court remanded the case to the district court for further proceedings.
NYC C.L.A.S.H., Inc. v. City of New York, et al.


Two New York laws adopted in 2002 and 2003 banned smoking in most indoor areas open to the public, including private offices, bars, and restaurants. C.L.A.S.H. Inc. (CLASH) challenged the constitutionality of these smoking restrictions, claiming that the restrictions violate freedom of association and assembly, freedom of speech, freedom of travel, the Equal Protection Clause, and the Privileges and Immunities clause. The court granted summary judgment in favor of the state, finding that that the legislature and city council had a rational basis upon to enact the smoking restrictions based upon scientific evidence concluding that environmental tobacco smoke is harmful to health. The court also stated that the act of smoking is not a prerequisite to plaintiffs’ full exercise of association, speech, and travel, and that smokers also do not possess the requisite characteristics of classes that are traditionally protected by the Equal Protection Clause.
Pelman v. McDonald’s Corporation


Two minor customers of fast food restaurant chain, and their parents as guardians, sued chain claiming consumption of unhealthy food, in reliance on representations that food was healthy, caused obesity and related serious health problems. The court dismissed the case, holding that the causal connection between false advertising and health problems was not sufficiently alleged and that reliance on deceptive advertising alleged lacked a sufficient causal connection between consumption of food and health problems.
Central
Hudson Gas & Electric Corp. v. Public Service Commission of New
York


A New York State Law prohibited utility companies
from advertising and promoting the use of electricity. In this seminal
free speech case, the Supreme Court must balance states’ interests
with the free speech rights of commercial enterprises. Ultimately,
the Court formulates its ruling in the multi-prong Central Hudson
test, which governs the freedom of commercial speech.




Thompson
v. Western States Medical Center


To tailor medications to the needs of individual patients, pharmacists
sometimes combine or mix ingredients to create a “compounded”
medication that is not otherwise commercially available. The Food
and Drug Administration Modernization Act of 1997 allows compounded
drugs to bypass the FDA approval process but bars pharmacies from
advertising or promoting these medications. In this commercial speech
case, the Supreme Court considers whether this advertising ban violates
the First Amendment.
Lorillard
Tobacco Co. v. Reilly


With the hope of reducing tobacco use by minors,
Massachusetts Attorney General Reilly promulgated a series of comprehensive
tobacco control regulations. The regulations included a ban on tobacco
advertising near schools or playgrounds in addition to point-of-sale
advertising restrictions. Several tobacco companies challenged the
regulations, claiming that they violated First Amendment protections
and that they were preempted by the Federal Cigarette Labeling and
Advertising Act. Part III of Justice O’Connor’s opinion addresses
the First Amendment claim.




Rubin
v. Coors Brewing Co.


To prevent brewers from competing with one
another based on the strength of their beers, a federal law, brewers
were barred from printing the alcohol content on the labels of their
beverages. Coors challenged the constitutionality of the law on First
Amendment grounds. Applying the Central Hudson test, the Supreme
Court found the government’s interest in preventing “strength
wars” to be strong enough to satisfy Central Hudson. But
is the labeling regulation the most effective and least intrusive
of all the government’s regulatory options?
44
Liquormart, Inc. v. Rhode Island


A Rhode Island law prohibited the advertising
of liquor prices except at the point of sale. Applying Central
Hudson, the Supreme Court discusses Rhode Island’s asserted interests
and the appropriateness of a blanket advertising ban as a means to
promote that interest.
International
Dairy Foods Association v. Amestoy


Following the FDA’s approval of a bovine growth
hormone to increase milk output, Vermont enacted a statute requiring
that any use of the hormone be disclosed on the packaging of dairy
products. To defend this action, Vermont asserted the “strong consumer
interest and the public’s ‘right to know’…” In reviewing the district
court’s denial of petitioner’s motion for preliminary injunction,
the court of appeals discusses the actions likelihood to succeed on
the merits. In his dissent, Judge Leval challenges his colleagues’
application of Central Hudson.




Posadas
de Puerto Rico Associates v. Tourism Company

of Puerto Rico


Although certain forms of casino gambling were
legal in Puerto Rico, advertising gambling was not. Agreeing that
the interest in preventing residents from gambling was a strong and
legitimate interest, the Supreme Court proceeds to apply the remaining
prongs of Central Hudson. Compare the Court’s treatment of
this case with 44 Liquormart and Rubin.
Bad
Frog Brewery, Inc. v. New York State Liquor Authority


The label of Bad Frog Beer depicted a frog
extending one of its fingers in “a well known human gesture of
insult.” Accompanying the gesturing frog were slogans such as
“An amphibian with an attitude” and “He’s mean, green and
obscene.” The New York State Liquor Authority, which is charged
with approving such labels, denied Bad Frog’s application twice. In
this case, the Second Circuit evaluates the agency’s denial and how
much, if at all, the denial serves the state’s interests.