would violate the APA, 5 U.S.C. § 706(2)(A) and (C). See Sea-Land Air Service v. Kreps, 185 U.S. App. D.C. 98, 566 F.2d 763 (D.C.Cir.1977).
Plaintiffs also have both a statutory and constitutional right to put the information regarding caloric and alcoholic
content on their label. The information is "truthful, accurate, and specific, and is neither disparaging nor misleading." 27 C.F.R. § 4.38. The information Plaintiffs are attempting to disclose is purely objective in nature, easily verifiable,
and in no way misleading. It is undisputed that consumers are extremely interested in the information. As information that is "self-contained and self-explanatory," Friedman v. Rogers, 440 U.S. 1, 12, 99 S. Ct. 887, 895, 59 L. Ed. 2d 100 (1979), with significant "intrinsic meaning," Id., its disclosure is accorded first amendment protection. See also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976).
Defendants do not allege that using the word "light" in conjunction with the caloric content of the wine would in any way confuse or mislead consumers with regard to Plaintiffs' wines. Indeed, Defendants have interposed no objections to Plaintiffs use of either the word "light" or disclosure of the caloric information if done in isolation. Rather, they fear that if Plaintiffs market the wine as a light chablis with fewer calories,
this marketing, in conjunction with that of the major breweries, will serve to change the meaning of the word "light" as it applies to wine.
Thus, consumers will be misled if they buy wines, other than Plaintiffs', that are described as light, because those wines will in all likelihood have a normal caloric content. Defendant contends that this fear is rational, that they have the statutory authority to prevent its occurrence, and that the exercise of its authority interposes no constitutional problems.
Defendants' assertion is misplaced. The FAAA, 27 U.S.C. § 205(e)(1), authorizes Defendants to prohibit, through the enactment of regulations, the appearance of deceptive, misleading, or irrelevant data on labels. The obvious intent of the statute was to prevent a wine maker from deceiving or misleading those who might purchase their wines, not those who might purchase the products of others. Defendants admit that Plaintiffs labels contain only relevant information that would not deceive or mislead the consumers of Plaintiffs' light chablis. Thus, Defendants have exceeded their statutory authority by holding Plaintiffs accountable for the potential confusion of individuals who consume other wines. See NLRB v. Brown, 380 U.S. 278, 290-292, 85 S. Ct. 980, 987-988, 13 L. Ed. 2d 839 (1965).
Defendants' reliance on 27 C.F.R. § 4.38 is also in error. That regulation would preclude the information in question if it qualified information required by FAA regulations. It is undisputed, however, that information pertaining to the class of table (light) and dessert wines is not required by the regulations. 27 C.F.R. § 4.34. While an agency's interpretation of its own regulation must be accorded deference, when the administrative construction is contrary to the plain and sensible meaning of the regulation, courts need not defer to it. Hart v. McLucas, 535 F.2d 516, 520 (9th Cir. 1976).
Assuming arguendo that Defendants have the statutory and regulatory authority to support their action in the instant case, prohibiting Plaintiffs from disclosing the caloric content
of the wine is clearly unconstitutional. Plaintiffs' attempt to disclose the information is accorded first amendment protection.
In the commercial speech arena, the first amendment requires that the Court balance the governmental interest in question against the individual's first amendment rights. Friedman v. Rogers, 440 U.S. at 8-11, 99 S. Ct. at 893-95. The governmental interest in the instant case is minimal. Defendants have known for at least six years that changing the meaning of the word "light" would pose regulatory problems. Defendants have admitted that they have already rebuffed several wine makers in their attempts to market a light, lower calorie wine. Yet Defendants have done nothing to ameliorate this problem. Their conspicuous inaction militates against the finding of a strong governmental interest in the instant litigation. Plaintiffs' first amendment rights are accentuated because the information is objective and verifiable in nature, Id., and clearly outweigh the governmental interest asserted herein.