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Calif. environmental marketing suit

This article was originally published in The Rose Sheet

Executive Summary

Association of National Advertisers and nine groups or trade associations file a Dec. 5 request for a rehearing en banc of a Nov. 18 decision by the U.S. Court of Appeals for the Ninth Circuit, which upheld the section of California's marketing law that regulates the use of environmental claims including "recycled" and "biodegradable" by marketers. The petition argues that "in order for [the statute] to pass constitutional muster as a restriction on the expression of views by some but not all, the State must establish that it is narrowly tailored to serve a compelling state interest and does not burden any more speech than is necessary." Defendants cite comments from dissenting Judge Noonan, who said in his opinion brief that the "speculatively- justified statute cannot survive the test of rationality, let alone strict scrutiny." If the rehearing is denied, defendants' last option is to appeal to the Supreme Court. The appeal was filed in spring 1993 ("The Rose Sheet" Sept. 19, p. 1)

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