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Limits on Environmental Language Contested

Magazine article Editor & Publisher

Limits on Environmental Language Contested

Article excerpt

National manufacturing and advertising groups are asking a federal judge to throw out as unconstitutional a California law that restricts what companies may say about environmental issues.

"What California has done is place certain language off limits, and by doing so has prevented the public from hearing the widest range of debate," said Floyd Abrams, a First Amendment attorney in New York who represents the business groups. "We believe this law limits political speech."

The suit in U.S. District Court in San Francisco is being watched as a test of states' ability to limit claims about the environmental friendliness of products in labeling an advertising.

Nobody has been prosecuted under the California law, which took effect last year, but powerful business groups are trying to overturn it. They include the Association of National Advertisers, American Advertising Federation, American Association of Advertising Agencies, American Paper Institute, the Soap Detergent Association, Grocery Manufacturers of America, Society of the Plastics Industry, and U.S. Chamber of Commerce.

The law's effect is "to deter if not totally prevent communication of truthful, non-deceptive, and specific information about the environmental characteristics of consumer products," the suit says.

The law, part of California's business and professions code, expands the existing ban on "untrue or misleading" environmental claims. It requires that words like ozone friendly, biodegradable, recyclable, or recycled apply only to products that meet strict state definitions.

The suite says the law not only violates First Amendment rights to factual commercial speech about products, but in unconstitutionally limits non-commercial speech, such as that of companies urging consumers to support recycling.

The suit says that the law hampers industry efforts to educate consumers through labeling and advertising, which may disclose the content of packaging for purposes of recycling. Where there are no recycling programs, labels can stimulate support for them, the suit says.

The suit also calls the law unconstitutionally vague. With inadequate explanation of the meaning of words in the definitions, the law could subject manufacturers to six months in jail and a fine.

For example, under the state's definition of recyclable as anything that can be "conveniently recycled" in California counties over 300,000 population, manufacturers say they would be prohibited from using the word on plastic soda bottles sold in counties that do not operate plastic recycling programs. …

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