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United States v. Philip Morris USA, Inc.

United States District Court, District of Columbia

November 27, 2012

UNITED STATES of America, Plaintiff,
PHILIP MORRIS USA, INC., et al., Defendants.

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[Copyrighted Material Omitted]

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Daniel K. Crane-Hirsch, Linda Margaret McMahon, Renee Brooker, U.S. Department of Justice, Washington, DC, for Plaintiff.

Alfred McDonnell, Arnold & Porter, Denver, CO, Amy Elizabeth Ralph-Mudge, Amy L. Rohe, Duane J. Mauney, Floyd E. Boone, Jr., James Miller Rosenthal, Jonathan Louis Stern, Kevin M. Green, Leslie Wharton, Michael R. Geske, Ryan David Guilds, Sharon L. Taylor, Arnold & Porter LLP, Anastasia G. Weis, Christopher J. Cullen, Jay L. Levine, Matthew A. Campbell, Robert M. Rader, Timothy M. Broas, Winston & Strawn LLP, Beth A. Wilkinson, Paul, Weiss, Rifkind, Wharton & Garrison LLP, Murray R. Garnick, Altria Corporate Services, Inc, Noel John Francisco, Patrick Lee Hubbard, Paul Sommer Ryerson, Peter Biersteker, Robert Francis McDermott, Jr., Jones Day, Thomas M. Stimson, Cadwalader, Wickersham & Taft LLP, Miguel A. Estrada, Gibson, Dunn & Crutcher, LLP,

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Dawn D. Marchant, Karen McCartan DeSantis, Kirkland & Ellis LLP, William Charles Hendricks, III, King & Spalding, Michael Asher Schlanger, James Alexander Goold, Joseph Andrew Kresse, Keith Allen Teel, Covington & Burling LLP, Arnon D. Siegelm Dechert, LLP, Lawrence Saul Robbins, Roy T. Englert, Jr., Alan Untereiner, Benjamin C. Rubinstein, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, William S. D'Amico, Chadbourne & Parke LLP, Bruce G. Merritt, Steven Klugman, Debevoise & Plimpton, Judah Best, Steven S. Michaels, Leboeuf, Lamb. Greene & MacRae LLP, Jessica L. Zellner, William M. Bailey, Kevin C. Lombardi, U.S. Department of Justice, Washington, DC, Ashley Cummings, Hunton & Williams, Bank of America Plaza, Dan H. Willoughby, Leign Ann Dowden, King & Spalding, Atlanta, GA, Ben M. Germana, Herbert M. Wachtell, Jeffrey M. Wintner, Steven M. Barna, Wachtell, Lipton, Rosen & Katz, Bradley E. Lerman, Lauren J. Bernstein, David E. Mollon, Winston & Strawn, C. Ian Anderson, Bruce G. Sheffler, Garyowen P. Morrisroe, Timothy M. Hughes, Chadbourne & Parke LLP, James Lewis Brochin, Theodore V. Wells, Jr., Paul, Weiss, Rifkind, Wharton & Garrison, Lawrence Edward Savell, David L. Wallace, Herbert Smith New York LLP, Harold K. Gordon, Jones, Day, Reavis & Pogue, John Kevin Dolan Crisham, Kirkland & Ellis LLP, Demetra Frawley, Mary Elizabeth McGarry, Michael V. Corrigan, Simpson Thatcher & Barlett, David Runtz, Joseph P. Moodhe, Debevoise & Plimpton, Dennis H. Hranitzky, Dechert, LLP, Guy Miller Struve, Davis Polk & Wardwell LLP, New York, NY, Cindy L. Gantnier, Patricia M. Schwarzschild, Richard H. Burton, Cheryl Grissom Ragsdale, Christy L. Henderson, Michele B. Scarponi, Jason T. Jacoby, Hunton & Williams, Richmond, VA, Dan K. Webb, Elizabeth D. Jensen, Jeffrey Wagner, Kevin J. Narko, Ricardo E. Ugarte, Thomas J. Frederick, Winston & Strawn, Renee D. Honigberg, David M. Bernick, Douglas G. Smith, Michelle H. Browdy, Steven D. McCormick, Andrew P. Bautista, Kirkland & Ellis, LLP, Paul Lamont McDonald, Valorem Law Group, Chicago, IL, Daniel C. Jordan, Hunton & Williams, Peter Thomas Grossi, Jr., Arnold & Porter, McLean, VA, Jeanna Maria Beck, Arnold & Porter, LLP, Los Angeles, CA, Melissa Marglous Merlin, Husch Blackwell Sanders LLP, Michael B. MintonBruce D. Ryder, J. William Newbold, James M. Cox, Ann Elizabeth Blackwell, Thompson Coburn, LLP, St. Louis, MO, David B. Alden, Paul Crist, Randal S. Baringer, Robert C. Weber, Jones, Day, Reavis & Pogue, Cleveland, OH, Elizabeth P. Kessler, Ivan C. Smith, Scott C. Walker, Jones, Day, Reavis & Pogue, Columbus, OH, Geoffrey Kres Beach, Lisa M. Sheppard, R. Michael Leonard, Womble, Carlyle, Sandridge & Rice, LLP, Winston-Salem, NC, Nicholas N. Nierengarten, Gray, Plant, Mooty, Mooty & Bennett, PA., Minneapolis, MN, F. John Nyhan, Fredericks Peebles & Morgan LLP, Sacramento, CA, for Defendants.


GLADYS KESSLER, District Judge.

Back in 2006, the Court issued its Final Judgment and Remedial Order # 1015 [Dkt. No. 5733], mandating that Defendants publish corrective statements on each of five topics on which the Court found they had made false and deceptive statements. These topics are: " (a) the adverse health effects of smoking; (b) the addictiveness of smoking and nicotine; (c) the lack of any significant health benefit from smoking ‘ low tar,’ ‘ light,’ ‘ ultra light,’ ‘ mild,’ and ‘ natural,’ cigarettes; (d) Defendants' manipulation of cigarette design and composition to ensure optimum nicotine delivery; and (e) the adverse health effects of exposure to secondhand smoke."

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United States v. Philip Morris USA, Inc., 449 F.Supp.2d 1, 938-39 (D.D.C.2006) ( " Original Opinion" ). Upon consideration of the briefs, the oral argument, and the entire record herein, the Court herein finalizes the text of the corrective messages to be published. See infra Section II.A-E.

I. Background

On September 22, 1999, the United States filed this civil suit against Defendants pursuant to the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), 18 U.S.C. §§ 1961-1968. After nearly five years of discovery, motions, and other pretrial proceedings, trial began in September 2004. The bench trial lasted nine months and on August 17, 2006, this Court issued a lengthy opinion finding that all Defendants " (1) have conspired together to violate the substantive provisions of RICO, pursuant to 18 U.S.C. § 1962(d), and (2) have in fact violated those provisions of the statute, pursuant to 18 U.S.C. § 1962(c)." Original Opinion, 449 F.Supp.2d at 26. In particular, the Court concluded that Defendants " knowingly and intentionally engaged in a scheme to defraud smokers and potential smokers, for purposes of financial gain, by making false and fraudulent statements, representations, and promises." Id. at 852.

A. Factual Findings

The Court made detailed Findings of Fact on each of the various topics on which Defendants made their false, deceptive, and misleading public statements. Id. at 146-839. First, the Court found that " each and every one of these Defendants repeatedly, consistently, vigorously— and falsely— denied the existence of any adverse health effects from smoking," despite " the massive documentation in their internal corporate files from their own scientists, executives, and public relations people" that confirmed that there was little evidence supporting their claims. Id. at 208. Specifically, Defendants " knew there was a consensus in the scientific community that smoking caused lung cancer and other diseases" by at least January 1964. Id. at 180. Despite this internal knowledge, the Defendants embarked on a " campaign of proactive and reactive responses to scientific evidence that was designed to mislead the public about the health consequences of smoking." Id. at 187-88.

Second, the Court found that Defendants " have publicly denied and distorted the truth as to the addictive nature of their products for several decades." Id. at 209. Defendants " knew and internally acknowledged that nicotine is an addictive drug," id. at 218, but " publicly made false and misleading denials of the addictiveness of smoking, as well as nicotine's role in causing that addiction." Id. at 271. The Court found that this conduct was continuing, observing that " no Defendant accepts the Surgeon General's definition of addiction, no Defendant admits that nicotine is the drug delivered by cigarettes that creates and sustains addiction, and no Defendant acknowledges that the reason quitting smoking is so difficult, and not simply a function of individual will power, is because of its addictive nature." Id. at 286.

Third, the Court found that " Defendants have designed their cigarettes to precisely control nicotine delivery levels and provide doses of nicotine sufficient to create and sustain addiction." Id. at 309. Specifically, most cigarettes are " manufactured using reconstituted tobacco material, additives, burn accelerants, ash conditioners, and buffering substances, all of which affect nicotine levels and delivery." Id. " Other cigarette design features used by Defendants to control nicotine delivery include filter design, paper selection and perforation, ventilation holes, leaf blending, and use of additives (such as ammonia) to control the PH of cigarette

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smoke." Id. However, the Defendants " denied, repeatedly and publicly, that they manipulate nicotine content and delivery in cigarettes in order to create and sustain addiction." Id. at 374.

Fourth, the Court found that, for several decades, Defendants marketed and promoted " low tar brands" as less harmful than conventional cigarettes. Id. at 430. Defendants knew that " smokers of low tar cigarettes modify their smoking behavior, or ‘ compensate,’ for the reduced nicotine yields by taking more frequent puffs, inhaling smoke more deeply, holding smoke in their lungs longer, covering cigarette ventilation holes with fingers or lips, and/or smoking more cigarettes." Id. at 431. Based on their sophisticated understanding of compensation, Defendants understood that low tar/light cigarettes offered no clear health benefits. Id. at 456-75. However, they " concealed that knowledge and disseminated false and misleading statements to downplay its existence and prevalence." Id. at 500. Defendants " continue to make[ ] false and misleading statements regarding low tar cigarettes in order to reassure smokers and dissuade them from quitting." Id. at 507-08.

Fifth, the Court found that " Defendants crafted and implemented a broad strategy to undermine and distort the evidence indicating passive smoke as a health hazard." [1] Id. at 693. Research funded by Defendants provided evidence confirming that " nonsmokers['] exposure to cigarette smoke was a health hazard." Id. at 709. However, Defendants made " numerous public statements denying the linkage" between secondhand smoke and disease in nonsmokers. Id. at 788. The Court found that the Defendants' conduct was continuing, noting that " currently no Defendant publicly admits that passive exposure to cigarette smoke causes disease or other adverse health effects." Id. at 693.

B. Remedies

Based on these findings, as well as many others, the Court imposed a number of injunctive measures in order to prevent and restrain future violations of RICO. Id. at 937-45; see also id. at 908-09 (recognizing that 18 U.S.C. § 1964(a) limits remedies to those which " prevent and restrain violations of section 1962" ). The Court concluded that there was a reasonable likelihood that Defendants would continue to violate RICO in the future. Id. at 908-19. The Court also found that the " evidence in this case clearly establishes that Defendants," with the exception of several parties who have since been dismissed, " have not ceased engaging in unlawful activity." Id. at 910. Further, " [e]ven after the Complaint in this action was filed in September 1999, Defendants continued to engage in conduct that is materially indistinguishable from their previous actions, activity that continues to this day." Id.

One of the injunctive measures ordered Defendants to make corrective statements on each of the five topics on which they had historically made (and were currently making) false and deceptive statements. Id. at 925-26. These statements were necessary to prevent and restrain " Defendants from continuing to disseminate fraudulent public statements and marketing messages by requiring them to issue truthful corrective communications." Id. at 927. The statements are to be published in newspapers and disseminated " through television, advertisements, onserts, in retail displays, and on their corporate websites." Id. at 928; see also id. at 938-41. The Court stated that it would

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receive proposals from the parties " for the exact wording of such corrective statements, with any supporting materials deemed necessary." Id. at 939.

C. Post-Trial Rulings of the Court of Appeals

On May 22, 2009, the Court of Appeals affirmed this Court's judgment of liability and affirmed major provisions in its Remedial Order.[2] United States v. Philip Morris USA, Inc., 566 F.3d 1095, 1150 (D.C.Cir.2009) (" Affirmance Opinion" ). The Court of Appeals specifically affirmed many of the individual Findings of Fact discussed above, including that Defendants made false and misleading statements: (1) denying the addictive properties of nicotine; (2) suggesting that " light" and " low tar" cigarettes were less harmful than regular cigarettes; and (3) denying the health hazards of secondhand smoke. 566 F.3d at 1124-26, 1126-27, 1127-28. In addition, the Court upheld the finding that there was a reasonable likelihood that Defendants would commit future RICO violations and concluded that corrective statements were appropriate " to counteract these anticipated violations." Id. at 1131-34, 1144. Defendants petitioned for a writ of certiorari, which was denied. __ U.S. __, 130 S.Ct. 3501, 177 L.Ed.2d 1090 (2010).

Since then, the Court of Appeals has issued two additional opinions upholding this Court's post-remedial decisions.[3] First, the Court of Appeals affirmed this Court's broad remedial powers when it declined to overturn its clarification of its disaggregated marketing disclosure remedy. United States v. Philip Morris USA Inc., 686 F.3d 839 (D.C.Cir.2012). Second, the Court of Appeals upheld this Court's determination that the passage of the Family Smoking Prevention and Tobacco Control Act (" TCA" or " Act" ), Pub. L. No. 111-31, 123 Stat. 1776 (2009), did not eliminate the reasonable likelihood that Defendants would commit future RICO violations. United States v. Philip Morris USA Inc., 686 F.3d 832, 837 (D.C.Cir.2012). In affirming this Court's decision not to assume that the Defendants would comply with the TCA, the Court of Appeals noted that the Act did not establish penalties as broad as those available under RICO, and observed that, " [i]f the defendants were not deterred by the possibility of RICO liability, the district court reasonably found the defendants were not likely to be deterred by the Tobacco Control Act either." Id. at 836-37.[4]

Thereafter, this Court ordered briefing from the parties on whether it should defer consideration of the issue of corrective statements pending the resolution of various challenges to the regulations promulgated by the Food and Drug Administration under the TCA. Order, Nov. 17, 2011 [Dkt. No. 5950]. After considering the submissions of the parties, this Court decided not to defer a decision pending a final resolution of R.J. Reynolds Tobacco Co. v. Food & Drug Administration, 823 F.Supp.2d 36 (D.D.C.2011), then pending on appeal. However, mindful of the expedited

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manner in which the Court of Appeals was handling that case and mindful of the possibility that a ruling in that case might have a substantial impact on its corrective statements ruling in this case, this Court took no action until the Court of Appeals ruled on Aug. 24, 2012 in R.J. Reynolds Tobacco Co. v. Food & Drug Administration, 696 F.3d 1205 (D.C.Cir.2012) (" Reynolds " ).

II. Corrective Statements

Each party submitted proposed corrective statements. After carefully evaluating the submissions, the Court concludes that the following Corrective Statements will most effectively prevent and restrain future violations of RICO. Appendix A directs the reader to the citations in the Original Opinion supporting each of these Statements.

A. Adverse Health Effects of Smoking

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of smoking, and has ordered those companies to make this statement. Here is the truth: [5]

• Smoking kills, on average, 1200 Americans. Every day.
• More people die every year from smoking than from murder, AIDS, suicide, drugs, car crashes, and alcohol, combined.
• Smoking causes heart disease, emphysema, acute myeloid leukemia, and cancer of the mouth, esophagus, larynx, lung, stomach, kidney, bladder, and pancreas.
• Smoking also causes reduced fertility, low birth weight in newborns, and cancer of the cervix and uterus.

B. Addictiveness of Smoking and Nicotine

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the addictiveness of smoking and nicotine, and has ordered those companies to make this statement. Here is the truth:

• Smoking is highly addictive. Nicotine is the addictive drug in tobacco.
• Cigarette companies intentionally designed cigarettes with enough nicotine to create and sustain addiction.
• It's not easy to quit.
• When you smoke, the nicotine actually changes the brain— that's why quitting is so hard.

C. Lack of Significant Health Benefit from Smoking " Low Tar," " Light," " Ultra Light," " Mild," and " Natural" Cigarettes

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public by falsely selling and advertising low tar and light cigarettes as less harmful than regular cigarettes, and has ordered those companies to make this statement. Here is the truth:

• Many smokers switch to low tar and light cigarettes rather than quitting because they think low tar and light cigarettes are less harmful. They are not.
• " Low tar" and filtered cigarette smokers inhale essentially the same

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amount of tar and nicotine as they would from regular cigarettes.
All cigarettes cause cancer, lung disease, heart attacks, and premature death— lights, low tar, ultra lights, and naturals. There is no safe cigarette.

D. Manipulation of Cigarette Design and Composition to Ensure Optimum Nicotine Delivery

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about designing cigarettes to enhance the delivery of nicotine, and has ordered those companies to make this statement. Here is the truth:

• Defendant tobacco companies intentionally designed cigarettes to make them more addictive.
• Cigarette companies control the impact and delivery of nicotine in many ways, including designing filters and selecting cigarette paper to maximize the ingestion of nicotine, adding ammonia to make the cigarette taste less harsh, and controlling the physical and chemical make-up of the tobacco blend.
• When you smoke, the nicotine actually changes the brain— that's why quitting is so hard.

E. Adverse Health Effects of Exposure to Secondhand Smoke

A Federal Court has ruled that the Defendant tobacco companies deliberately deceived the American public about the health effects of secondhand smoke, and has ordered those companies to make this statement. Here is the truth:

• Secondhand smoke kills over 3,000 Americans each year.
• Secondhand smoke causes lung cancer and coronary heart disease in adults who do not smoke.
• Children exposed to secondhand smoke are at an increased risk for sudden infant death syndrome (SIDS), acute respiratory infections, ear problems, severe asthma, and reduced lung function.
• There is no safe level of exposure to secondhand smoke.

III. The Court Has Broad Discretion to Formulate Corrective Statements

The parties are in agreement that this Court has broad discretion to determine the content of the Corrective Statements in order to most effectively prevent and restrain future RICO violations. See Hr'g. Tr., Oct. 15, 2012. The Court can, but is not obligated to, receive additional evidence. See United States v. Local 1804-1, Int'l Longshoremen's Ass'n, 812 F.Supp. 1303 (S.D.N.Y.1993), modified by 831 F.Supp. 177, 182-84 (S.D.N.Y.1993) (evaluating whether to admit additional evidence in remedial phase of RICO litigation and determining not to admit it after deeming it irrelevant on the questions of fact at issue). The parties have submitted twenty-five briefs related to the content of these Corrective Statements, and the Court heard oral argument on October 15, 2012.

Naturally, this Court's equitable power is limited by the terms of the underlying statute, as well as the Constitution. See United States v. Philip Morris USA, Inc., 396 F.3d 1190, 1197 (D.C.Cir.2005). While RICO provides a district court with jurisdiction to issue orders that " prevent and restrain" RICO violations, our Court of Appeals made it clear that this language limits a court's equitable discretion to " forward looking remedies that are aimed at future violations." 396 F.3d at 1198.

In its Affirmance Opinion, the Court of Appeals upheld this Court's determination that corrective statements, targeted at " reveal[ing]

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the previously hidden truth" about cigarettes and " correct[ing] Defendants' campaign of deceptive marketing," will prevent and restrain future RICO violations. Id.; see also Reynolds, 696 F.3d at 1216 & n. 10 (observing that this case requires statements in order " to correct any false or misleading claims made by cigarette manufacturers in the past" ). Thus, the corrective statements remedy has been upheld as within the scope of this Court's discretion, presuming that the Statements are targeted at correcting the fraud perpetuated by the Defendants.

IV. First Amendment Analysis

As already noted, even though the Court has a significant amount of equitable discretion under RICO, its discretion is also cabined by the provisions of the Constitution. The Defendants argue that certain portions of the Statements violate the First Amendment because they exceed the scope of permissible governmental restrictions on commercial speech. After reviewing the Supreme Court's development of the commercial speech doctrine and in light of recent cases decided by the Supreme Court and our Court of Appeals, this Court concludes that the Statements pass constitutional muster.

A. Historical Development of " Commercial Speech" Protection

The First Amendment prohibits the government from " restrict[ing] expression because of its message, its ideas, its subject matter, or its content." Brown v. Entm't Merchs. Ass'n, __ U.S. __, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011) (quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002)). Content-based restrictions on protected speech are entitled to " strict scrutiny" when reviewed by courts. Id. at 2738. This heightened scrutiny invalidates a government restriction on speech " unless it is justified by a compelling government interest and is narrowly drawn to serve that interest." Id. (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992)). However, certain types of speech, such as obscenity, incitement, and fighting words, have been deemed unworthy of such heightened scrutiny, and are considered " unprotected speech." See Brown, 131 S.Ct. at 2733 (discussing categories of unprotected speech). Thus, when the government restricts speech, the court must evaluate what kind of speech it is and what level of protection is due that type of speech.

Over the years, the Supreme Court has sought to identify how much and what level of protection the First Amendment provides for so-called " commercial speech," defined as " expression related solely to the economic interests of the speaker and its audience." Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557, 562, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Initially, the Court indicated that " purely commercial advertising" might be entirely unprotected. Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (observing that " the Constitution imposes no ... restraint on government as respects purely commercial advertising" ). However, a quarter of a century later, the Court decided that commercial speech was not outside the realm of constitutional protection, observing that " speech does not lose its First Amendment protection because money is spent to project it." Virginia Bd. of Pharm. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). While the Court did not specify what level of protection commercial speech was entitled to, it did conclude that " whatever may be the proper bounds" of permissible government restrictions, they were " plainly exceeded" in that case. Id. at 771, 96 S.Ct. 1817.

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A few years later, the Court set forth a general framework for evaluating whether a particular government restriction on commercial speech was constitutional. See Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. The Court established a four-step test:

For commercial speech to come [under the First Amendment], it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Id. at 566, 100 S.Ct. 2343. This standard, which is often referred to as an " intermediate" level of scrutiny, is less demanding than the strict scrutiny standard applied to traditionally protected speech. See Brown, 131 S.Ct. at 2733 (defining strict scrutiny); see also Reynolds, 696 F.3d at 1212 (describing Central Hudson test as " not quite as demanding" as strict scrutiny).

In 1985, the Supreme Court then established an even lower level of scrutiny for government restrictions aimed at commercial speech that is false or misleading. In Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Court analyzed the constitutionality of various Ohio state disciplinary rules, including a rule requiring an attorney to affirmatively disclose that clients may be responsible for legal costs regardless of the outcome of their case. Id. at 629-30, 105 S.Ct. 2265.

The Court began by observing that an advertiser has only a " minimal" constitutional interest in not providing any particular " purely factual and uncontroversial" information. Id. at 651, 105 S.Ct. 2265. Thus, given that the interests of the advertiser are less pressing, warnings or disclaimers " might be appropriately required" to avoid " consumer confusion or deception." Id. (citing In re R.M.J., 455 U.S. 191, 201, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982)).

The Court then concluded that " an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers." 471 U.S. at 651, 105 S.Ct. 2265. It specified in a footnote that such disclosure requirements were not subject to a " least restrictive means" analysis. Id. at 651 n. 14, 105 S.Ct. 2265. However, the Court also noted that " unjustified or unduly burdensome" disclosure requirements might offend the First Amendment if they " chill[ed] protected commercial speech." Id. at 651, 105 S.Ct. 2265.

B. Choosing the Appropriate Standard of Review

1. Recent Cases Discussing Which Commercial Speech Standard Applies

a. Affirmance Opinion

Courts have long struggled on a case-by-case basis with whether Central Hudson or Zauderer applies to particular governmental restrictions on commercial speech. In the Affirmance Opinion, the Court of Appeals directly addressed the question of what level of First Amendment scrutiny should be applied to the corrective statements in this case. 566 F.3d at 1142-45.

The Court began by acknowledging that several standards exist for evaluating commercial speech restrictions under the First Amendment. Id. at 1142. It went on to observe that, whatever standard was applicable, the " fit" required between the means and the ...

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