In a prior post, I discussed the suit brought by three plaintiffs against Coca-Cola and the American Beverage Association, alleging that certain statements the defendants made about sugar-sweetened beverages and their effects on obesity were false and misleading under the D.C. Consumer Protection Act.
Like Coca-Cola, the ABA filed an anti-SLAPP special motion to dismiss. The ABA’s motion argued it satisfied its prima facie case of showing the suit arose from “an act in furtherance of the right of advocacy on issues of public interest” because its speech occurred in places open to the public/a public forum (website, press releases and billboards), about an issue of public interest (health, community well-being, goods in the marketplace).
The ABA’s brief acknowledged the D.C. anti-SLAPP statute contains two potential exclusions, but argued neither applied here. First, the ABA argued the “commercial interests” exception in §16-5505 did not apply to the ABA because “the ABA is a nonprofit trade association not primarily engaged in the business of selling or leasing consumer goods or services, and because the ABA’s statements do not relate to its goods or services” (Emphasis in original).
And, the ABA argued, the “private interests” exception that is part of the “issues of public interest” definition in §16-5501(3) was inapplicable because it excludes statements primarily directed to protecting “the speaker’s commercial interests” and, as an industrywide trade association, the ABA did not promote the sale or use of any particular products, and thus its speech could not be primarily directed to protecting its commercial interests. On this point, the ABA cited to the Superior Court’s Simpson decision, where Judge Demeo ruled a trade association’s speech was not excluded by the “private interests” exception unless its speech was about a specific commercial product:
[T]he Court distinguishes between when a trade association is promoting a specific product or the benefits of a specific product versus when a trade association is speaking more generally about products and the health and safety of those products as opposed to a specific commercial product named.
The Court does find in this case that PCPC has made a prima facie showing that its alleged acts were made in furtherance of the right of advocacy on issues of public interest. So I am focusing now on the public interest component. This is because plaintiff’s complaint does not allege that PCPC made any representations regarding a particular product, only about the safety of talc in general. Further, defendant PCPC is a nonprofit trade association. It does not manufacture, design or sell any products. As a result, PCPC does not have, this Court concludes, a commercial interest to protect. While plaintiff argues that PCPC does represent the commercial organizations, that is Johnson & Johnson and Imerys, which are profit-seeking corporations, this Court finds that PCPC’s own speech is not commercial in nature. Further, PCPC’s alleged acts fit squarely within the plain meaning of the statute of issues of public interest.
The ABA argued its speech was identical to that of the trade association in the Simpson case:
Like PCPC, the ABA does not “manufacture, design, or sell any product” and “[a]s a result [it] does not have . . . a commercial interest to protect.” And like PCPC’s speech, the challenged ABA statements are not designed or oriented towards the sale, marketing, or promotion of a specific product sold by a member entity – such as Sprite, Mountain Dew, or Dr. Pepper – as opposed to general commentary about a category of products. Rather, just as the challenged PCPC statements addressed “the safety of talc in general,” the challenged ABA statements broadly address “the link between sugar-sweetened beverages and obesity,” “discussions of high fructose corn syrup,” whether beverages with added sugar contribute to weight gain or diabetes differently from other caloric sources, and whether drinking beverages with added sugar contributes to hydration.
The ABA argued that, having established its prima facie case, the burden shifted to the plaintiffs to show they were likely to succeed on the merits. It argued they could not satisfy their burden because the ABA was not a merchant (and thus could not be held liable under the D.C. Consumer Protection Act); the D.C. Consumer Protection Act did not apply to the ABA’s noncommercial speech; the challenged statements were neither false nor misleading; and the plaintiffs lacked standing.
The plaintiffs’ opposition brief logically focused on the “private interests” exception in the “public interest” definition. Plaintiffs challenged the assertion that, as a nonprofit trade association, the ABA’s speech could not be primarily about its commercial interests. According to the plaintiffs, “[e]xtensive case law from the U.S. Supreme Court and other federal and state courts unequivocally establishes that trade associations can and do have commercial interests and often engage in commercial speech on behalf of their members’ common products” and that “[t]hese cases demonstrate that speech can be commercial even if it does not relate to a specific product, but instead discusses categories of products.”
The plaintiffs acknowledged the Superior Court’s Simpson decision, but argued it was incorrect because it: (1) ignored the decisions cited by these plaintiffs; (2) relied upon decisions interpreting the California anti-SLAPP statute, which the plaintiffs argued is materially different from the D.C. anti-SLAPP statute on the commercial speech issue; and (3) misinterpreted the California decisions it relied upon. The plaintiffs also argued some of the ABA’s speech referred to specific products, thus distinguishing it from the speech of the trade association in the Simpson case. As such, the plaintiffs argued, the ABA had not established a prima facie case under the statute. And, in any event, the plaintiffs argued they were likely to prevail on the merits, or could make this showing if allowed discovery.
The ABA’s reply brief argued the plaintiffs’ opposition brief confirmed that the ABA’s speech is covered by the statute and is not subject to any exclusion or exception.
One interesting fact. The complaint in this case is brought under the DC Consumer Protection Act, and specifically 28-3905(k)(1), which allows a plaintiff to sue “on behalf of the general public”
An initial draft of the legislation that would become the D.C. anti-SLAPP statute contained an exemption providing “[t]his Act shall not apply to claims brought solely on behalf of the public or solely to enforce an important right affecting the public interest.” The ACLU argued this language was “vague and tremendously broad” and would allow almost any plaintiff to assert that he was bringing his claims “to enforce an important right affecting the public interest.” The ACLU was concerned that “neither this bill nor any other source we know gives a court any guidance regarding what ‘an important right affecting the public interest’ might be.” It argued:
this provision will almost certainly add an entire additional phase to the litigation of every SLAPP suit, with the plaintiff arguing that the anti-SLAPP statute does not even apply to his case because he is acting in the public interest. To the extent that courts accept such arguments, this provision is a poison pill with the potential to turn the anti-SLAPP statute into a virtually dead letter. At a minimum, it will subject the rights of SLAPP defendants to the subjective opinions of more than 75 different Superior Court judges regarding what is or is not “an important right affecting the public interest.”
It thus urged the DC Council to remove the provision. The Council apparently agreed with the ACLU’s suggestion because the final version of the statute did not contain the exception.
As such, plaintiffs and the ABA are left to argue about the private interest exception to the public interest definition in 16-5501(3); the commercial speech exception in §16-5505; and the Superior Court’s Simpson decision. As always, stay tuned.