In People v. Larsen, 29 Misc 3d 423, 906 NYS2d 709 [Crim Ct, NY County 2010]), two defendants were charged with violations of Administrative Code §20-453 arising from their sale of virtually identical condoms.
Those defendants moved to dismiss for facial insufficiency based upon the same arguments raised herein. While focusing on the company who purportedly manufactured the subject condoms, Practice Safe Policy (PSP), the Larsen court took judicial notice of PSP's Web site and concluded based upon an examination thereof, PSP's manufacture and sale of these condoms was just "clever marketing" and was not designed to be "informative" or "persuasive" speech (29 Misc 3d at 433).
The Larsen court held that the defendants' speech, vis-a-vis PSP's speech, was a sales pitch, calculated to attract attention to a commercial enterprise, and therefore amounted to commercial speech.
The Larsen court went on to find that Administrative Code §20-453, as applied, furthered a "significant" governmental interest, was narrowly tailored as to time, place and manner, and did not cut off alternative channels of communication (29 Misc 3d at 435-436).
Therefore, the Larsen court denied the defendants' motion to dismiss for facial insufficiency.