By Jonathan W. Emord

As Bethany Kennedy explains in her recent post, the Federal Trade Commission’s staff expects advertisers of health benefits to possess competent and reliable scientific evidence in advance of advertising a health benefit claim.  In particular, that means an advertiser must have written evidence on hand before advertising.  The absence of the written evidence is automatically deemed deceptive advertising by the FTC.  That advance written proof requirement, including its imposition of a burden as a condition precedent to the lawful right to communicate, offends core principles of the First Amendment.

A simple hypothetical will help illustrate the point.  Let’s assume that a company selling prune juice advertises the following: “helps relieve occasional constipation.”  Let’s assume further that the company has no written documentation on hand to support that claim but believes it to be true based on common experience.  Let’s assume further that there is a dearth of actual scientific testing of the proposition and that many accept the idea largely without question, the fact remains clinical trial data proving a substance in prune juice effective in inducing relief of constipation is not well researched.  In this circumstance, the advertiser is guilty of deceptive advertising, according to FTC law and policy.

That hypothetical illustrates the constitutional law defects in the FTC’s basic approach.  In the first instance, it is fundamental First Amendment law, even in the commercial speech context, that the government bears the burden of proving a statement false before it may act to restrict it.  The First Amendment places the burden of evidentiary proof on the FTC.  When the burden is on the FTC, that agency cannot act against the advertiser in question without proving in the first instance that the statement in issue is false.  The fact that the advertisers lacks proof to support his claim does not satisfy the government’s affirmative burden to show that the claim is contradicted by evidence.

The long-standing FTC policy demanding such proof from advertisers thus violates the First Amendment.  It is entirely consistent with the First Amendment that an advertiser would, by chance, communicate a statement not demonstrably false based entirely on conjecture, second hand information, or even supposition.  So long as the government fails to prove the statement false, the speech is protected under the First Amendment, or so the historic understanding of that Amendment would require.

Sadly, that is not how federal courts view the matter.  They defer broadly to the FTC’s construct and conception of deceptiveness largely ignoring the fundamental constitutional defect in the FTC’s approach.  Nevertheless, sooner or later I suspect that the FTC will be made to answer for the constitutional defect that underlies its advertising review process.   A good First Amendment decision on point could force the FTC to end its burden shifting and take on its constitutional responsibility of limiting its actions against advertisers to those in which it possesses proof of the falsity of their claims.  Speech not demonstrably false, and also not demonstrably true, is precisely that which feeds debate central to the evolution of a free society and is protected by the intended meaning of our First Amendment.  That kind of speech was contemplated by our Founding Fathers who cast their lot in favor of free and open discussion and debate, even on matters of commerce, rather than with prior restraint.

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