Both environmental groups and business representatives noted the growing confusion surrounding many environmental marketing claims and stated their belief that such confusion was fertile ground for abusive advertising practices.... [T]he words commonly used in environmental marketing, such as “environmentally friendly,” “degradable,” “recyclable,” and “ozone friendly” have no clear, uniform meaning. Different manufacturers use the terms to promote different environmental benefits.
It is unlawful for any person to represent that any consumer good which it manufacturers or distributes is “ozone friendly,” or any like term which connotes that stratospheric ozone is not being depleted, “biodegradable,” “photodegradable,” “recyclable,” or “recycled” unless that consumer good meets the definitions contained in this section, or meets definitions established in trade rules adopted by the Federal Trade Commission.
Riley involved ... compelled commercial speech.... There, of course, the commercial speech (if it was that) was “inextricably *753 intertwined” because the state law required it to be included. By contrast, there is nothing whatever “inextricable” about the noncommercial aspects of these presentations. No law of man or of nature makes it impossible to sell housewares without teaching home economics, or to teach home economics without selling housewares. Nothing in the Resolution prevents the speaker from conveying, or the audience from hearing, these noncommercial messages, and nothing in the nature of things requires them to be combined with commercial messages.
But many, if not most, products may be tied to public concerns with the environment, energy, economic policy, or individual health and safety.... [U]tilities enjoy the full panoply of First Amendment protections for their direct comments on public issues. There is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions.
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, 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.
In recent years we have seen an increase in questionable “environmental” advertising with claims such as “environmentally friendly,” “biodegradable,” and “recyclable” being utilized with virtually no scientific support.... Environmental claims are similar to the “health” claims made for elixirs in the Old West. There was no scientific or medical basis for the claims, but there was also no basis for disproving them! Thus, the claims were made, and consumers relied upon those claims in making product choices without knowing of the total absence of credible evidence to support the claims.
The degree of vagueness that the Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.
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