Line Between Commercial and Noncommercial Speech
To distinguish between commercial and noncommercial speech, we begin with the leading United States Supreme Court decision, Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 77 L. Ed. 2d 469, 103 S. Ct. 2875.
There, a condom manufacturer faced prosecution for unsolicited mailings regarding its product. Most of the mailings consisted of advertisements conveying price and quantity information about the plaintiff's brand, which, the court held, fell "within the core notion of commercial speech--'speech which does "no more than propose a commercial transaction." (Id. at p. 66, 103 S. Ct. at p. 2880, fn. omitted.)
But the manufacturer also mailed two informational pamphlets about condom use, containing no more than references to its brand of condoms.
Holding that these pamphlets were also commercial speech, the court considered a series of relevant characteristics:
"The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech.
Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech.
Finally, the fact that [plaintiff] has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech.
The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech." (Bolger, 463 U.S. at pp. 66-67, fns. omitted.)
the decisional law offers an array of verbal formulations to distinguish commercial and noncommercial speech. Central Hudson Gas & Elec. v. Public Serv. Comm'n (1980) 447 U.S. 557, 561, 65 L. Ed. 2d 341, 100 S. Ct. 2343, broadly describes commercial speech as "expression related solely to the economic interests of the speaker and its audience." (See also In re R. M. J. (1982) 455 U.S. 191, 204, fn. 17, 102 S. Ct. 929, 71 L. Ed. 2d 64.)
Other decisions refer to a narrower characterization of commercial speech found in Va. Pharmacy Bd. v. Va. Consumer Council, supra, 425 U.S. at p. 762--"speech which does 'no more than propose a commercial transaction . . . .' " (E.g., Board of Trustees, State Univ. of N. Y. v. Fox (1989) 492 U.S. 469, 473, 106 L. Ed. 2d 388, 109 S. Ct. 3028; Posadas de Puerto Rico Assoc. v. Tourism Co. (1986) 478 U.S. 328, 340, 92 L. Ed. 2d 266, 106 S. Ct. 2968.)
In Spiritual Psychic Science Church v. City of Azusa, supra, 39 Cal. 3d at p. 511, our high court sought to bridge the gap between this differing language with a somewhat more flexible formulation: "commercial speech is that which has but one purpose--to advance an economic transaction." (See conc. opn. of Stevens, J. in Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. at pp. 579-580.)
The Bolger distinction was applied by the Ninth Circuit in Association of Nat. Advertisers, Inc. v. Lungren, supra, 44 F.3d 726, to representations, like those at issue here, that appealed to the consumer's sense of social responsibility.
Former California Business and Professions Code section 17508.5 prohibited a manufacturer or distributor of consumer goods from making a series of representations regarding the environmental impact of the goods, such as that they were "ozone friendly" or "biodegradable," unless the goods met certain statutory definitions of these terms.
Though falling outside the "core notion" of commercial speech, the court concluded that these environmental representations constituted commercial speech as defined by the three characteristics recognized in the Bolger decision.
An earlier decision, on which appellant relies, concerned representations about the effects of a product on health.
In National Com'n on Egg Nutrition v. F. T. C. (7th Cir. 1977) 570 F.2d 157, the court reviewed a Federal Trade Commission order directing a trade association to desist from disseminating advertisements to the effect that "there is no scientific evidence that eating eggs increases the risk of heart and circulatory disease." (Id. at p. 158, fn. omitted.) the court held that the advertisements fell within the category of " 'deceptive or misleading' commercial speech," subject to restraint under the First Amendment. (Id. at p. 162.)