The year 2000 saw increased protection for commercial speech in both federal and state courts. The U.S. Supreme Court did not enter the fray directly, however. At the same time, localities continued to enact laws restrictive of commercial speech.

    In a decision that may have important implications for commercial speech, the U.S. Supreme Court held that the Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 301 et seq, does not grant the Food and Drug Administration the authority to regulate tobacco products. Food and Drug Administration v. Brown & Williamson Tobacco Corp., 120 S. Ct. 1291 (2000). Although the majority and dissenting opinions relied on administrative law rather than on First Amendment grounds, the case is nonetheless significant in that it returns the issue of jurisdiction over tobacco regulation to Congress.

    The Supreme Court declined to accept review in Greater New York Metropolitan Food Council v. Giuliani, 195 F.3d 100 (2d Cir. 1999), cert. denied, 120 S. Ct. 1671 (2000), and Federation of Advertising Industry Representatives, Inc. v. City of Chicago, 189 F.3d 633 (7th Cir. 1999), cert. denied, 120 S. Ct. 1671 (2000). Both decisions held that local ordinances limiting outdoor advertising of tobacco were not preempted by the Federal Cigarette Labeling and Advertising Act.

    Further proceedings in these cases may take place in the trial court, based upon the First Circuit’s ruling that Massachusetts’s regulations that severely restrict tobacco advertising are consistent with the First Amendment. Consolidated Cigar Corp. v. Reilly, 218 F.3d 30 (1st Cir. 2000), petitions for cert. granted sub nom. Lorillard Tobacco Co. v. Reilly, 121 S. Ct. 755 (2001) (Nos. 00-596 & 00-597). However, the First Circuit has stayed enforcement of its ruling pending the Supreme Court’s review of the Consolidated Cigar decision. Briefing in the Supreme Court case was to be completed in March 2001.

    In a major victory for commercial speech, the California Supreme Court ruled that California’s Constitution provides broader protection for such speech than does the First Amendment. Gerawan Farming, Inc. v. Lyons, 101 Cal. Rptr. 2d 470 (2000). The high court ruled that the right to freedom of speech under Article I of the California Constitution may be implicated, even though no similar right is implicated under the Free Speech Clause of the First Amendment to the U.S. Constitution. Adopting a historical analysis of California’s free speech clause, the court ruled that there is no reason to accord less protection to truthful, nonmisleading commercial speech. (See chapter in this section.)

    In another decision protective of commercial speech, a New York state trial court reached a result sharply different from that reached by a California state appellate court last year. In Lacoff v. Buena Vista Publishing, Inc., 705 N.Y.S.2d 183 (N.Y. Sup. Ct. 2000), the New York court ruled that a suit brought on behalf of all persons who purchased the book entitled The Beardstown Ladies’ Common-Sense Investment Guide, which asserted deceptive trade practices, is barred by the First Amendment. The court held that the book cover, flyleaf, and introduction are not "core" commercial speech, but are a type of hybrid speech because they come directly from the book. The New York trial court further held that the content of the book and the contested material were both fully protected speech.

    The Lacoff decision distinguished a California appellate court’s decision in Keimer v. Buena Vista Books, Inc., 89 Cal. Rptr.2d 781 (Cal. Ct. App. 1999), holding that Keimer incorrectly interpreted speech used in connection with the sale of such a book. Thus, the Lacoff court held that the publisher could not be held liable for reprinting on the cover a negligent error found in the book itself, and that the book cover was not commercial speech where it informed readers about the constitutionally protected content of the book. (See chapter on both decisions in this section.)

    In another decision protective of free speech, a federal California trial court ruled that a policy of the California State Board of Dental Examiners prohibiting the advertisement of certain credentials by California licensed dentists violates the First Amendment. Bingham v. Hamilton, 100 F. Supp. 2d 1233 (E.D. Cal. 2000). The challenged policy involved the dental board’s refusal to recognize American Academy of Implant Dentistry (AAID) credentials, and its concomitant refusal to permit dentists to advertise AAID credentials.

    The court ruled that advertisement of AAID credentials constitutes truthful, nonmisleading commercial speech. It then relied on the Supreme Court’s rulings in Peel v. Attorney Registration & Disciplinary Commission of Illinois, 496 U.S. 91 (1990), and Ibanez v. Florida Department of Business and Professional Regulation, 512 U.S. 136 (1994), to hold that the prohibition against advertising AAID credentials could "only be sustained if there is a real, demonstrable, potential that the public may be misled" and that "the prohibition is necessary to address this problem, as opposed to lesser measures." Bingham, 100 F. Supp. 2d at 1239.

    The court found unpersuasive the dental board’s contention that the advertisement of AAID credentials would be misleading. It further held that, even if there were a potential for deception through this advertising, the dental board failed to show that a total prohibition of the advertising -- as opposed to placing a disclaimer on the advertising -- was necessary.