Everyone knows that the Constitution protects free speech under the First Amendment.
But many may not realize that the First Amendment also protects commercial speech, such as advertisements. Although the level of protection given to commercial speech is lower than that given to other types of speech, especially political speech, companies still have rights to what they say.
The First Amendment is also involved when laws require labeling for commercial businesses. For example, it is completely legal for the government to require fast food companies to publish the calorie count of the products they serve to the public. There are countless other examples of required disclosures, like gas mileage and auto safety ratings and whether a newly built home is subject to Mello-Roos taxes.
An infamous example of “forced speech” in California was imposed through Proposition 65, approved by voters in 1986. Business businesses must post warning labels that their products or places of business may contain substances known to cause cancer. But Prop. 65 warnings are so pervasive in California that they no longer make sense. They’re found in everything from bread to potato chips to chocolate chip cookies. In California, it seems, everything causes cancer.
But a recent court ruling on acrylamide, a naturally occurring substance that forms in the process of baking products, may have put a damper on the absurdity of Prop. 65’s warnings. The Ninth Circuit Court of Appeals ruled that because scientific evidence could not reach a single conclusion about whether acrylamide in food and beverages can cause cancer in humans, the Prop. 65 warning signs for these products were “probably misleading.”
It turns out that the government itself was violating “truth in advertising” laws.
But perhaps the biggest benefit of the ruling has to do with inhibiting nuisance lawsuits that cost companies millions of dollars. That’s because Prop. 65 has a “private right of action” provision that allows attorneys to sue businesses on behalf of the state. Prop. 65 essentially delegates private trial attorneys to search for evidence of noncompliance.
Removing Prop. 65’s misleading warning for acrylamide could be a positive step in reducing false or unproven claims that mislead consumers and cause adverse effects in the marketplace. This would not only help businesses, but also consumers, who end up paying more for goods and services when businesses face lawsuits.
Claim abuse is a huge problem for California and has resulted in the state having the worst rating in the nation from the Americans for Tax Reform Foundation as a “judicial hell.” Prop. 65 lawsuits are one of the main reasons for that dubious designation, as they can result in fines of up to $2,500 a day, not to mention the costs of their own attorneys and those of the plaintiff. With approximately 900 chemicals on the Prop 65 list, the law presents a major temptation for unscrupulous lawyers looking to make a quick buck.
But Californians are waking up to the absurdity of Prop. 65.
A few years ago, there was pressure to place a Prop. 65 warning on coffee, again due to the presence of acrylamide. But public pushback, as well as taunts from late-night TV hosts, may have been a factor in sanity’s legal victory.
We are all for transparency. But Prop. 65 has long outlived its usefulness in providing consumers with reliable information. In fact, it has done just the opposite.
Jon Coupal is president of the Howard Jarvis Taxpayers Association.