State barber board wins battle against "Barber Shop" bar

Really wanted a Sweeney Todd reference here but couldn't figure it out.

Osteria Segreto, LLC v. Hilgers, No. 8:26-cv-00065-BCB-MDN (D. Neb. Apr. 20, 2026)

Osteria Segreto, formerly “an Italian speakeasy” in a space that had once been a hair salon, restyled itself as “a barber shop themed bar” named “The Barber Shop Blackstone.” It was surprised to discover the Nebraska Barber Act, which among other things prohibits businesses from using the title of “barber” or “barber shop” or displaying a “barber pole” without a state-issued license to practice barbering. The court refused to enjoin enforcement of the law, finding that this was a regulation of deceptive commercial speech.

The Bar’s logo is a monochromatic barber pole with the name “The Barber Shop” and the tag line, “Where the Buzz is Real.” It’s accessed “through a back-alley door tucked between a wall and a wood fence that is adorned with a small [red, white, and blue] barber pole.”

entrance

logo

Patrons enter a small anteroom, where they “see a lone vintage barber chair, a barber pole, and small television that displays a history of barbering,” and “[a] bouncer greets customers, checks their IDs, and allows them through a hidden door into the bar.” According to the plaintiff, “[t]he walls are filled with historical pictures of barbers and barbering tools. The bar is dimly lit, but at the end of the narrow space is a small seating area next to a floor-to-ceiling light installation designed to mimic the banded lights of a barber pole.” The menu includes drinks called “the ‘Scotch and [Scissors],’ the ‘Classic Cut Old Fashioned,’ and the ‘Barber’s Flight.’”

grand opening ad showing entrance and promising guest barbers

more social media

The bar advertised for a grand opening that mentioned “5 cabinet giveways [sic], secret menu, drink specials, and special guest barbers!”

The Board claimed rights in a “mark” registered with the state in barber poles, defined as “spiral stripes, red, white, and blue or any combination of them.” A state AG pointed out in earlier correspondence:

While the barber pole which you seek to use for the collective mark has been associated with barbers since the Fifth Century, A.D., there still may be some problems with enforcement of the logo exclusively for licensed barbers in this State. When a word or symbol has been in the public domain for a period of time, it is no longer susceptible to exclusive appropriation.

But, the AG continued, maybe it could still serve as a collective mark. The Board doesn’t charge a licensing fee for use of the “mark,” but has issued express consent for approved barber schools to use its barber pole “registered service mark.”

A licensed barber in the State of Nebraska who worked in the Blackstone District (nearby) complained to the Board: “I’m not sure if they are going to be actually cutting hair but they mentioned guest barbers. The whole theme of this place is so disrespectful to the trade I wish people would stop making money off of it because it’s a cool idea.” Then the Board started going back and forth with the bar, claiming both “trademark” rights and exclusivity according to the Barber Act. The bar disavowed any intent to provide barber services, but wanted to use the name and barber pole.

First, the court declined to address any trademark claim by the Board for purposes of the motion. JDI didn’t hold, as the Board argued, that trademark law always “prevails” over the First Amendment, particularly “where, as here, a state actor attempts to regulate commercial speech by asserting a trademark.” Not only were there some pretty serious doubts over the validity of the putative “mark,” but “when the Supreme Court has addressed regulation of commercial speech by governmental entities, it has applied the intermediate scrutiny test from Central Hudson.” (As for those doubts—the Board registered a service mark, not a certification mark, and it never registered “barber shop” as any kind of mark. And there was a reasonable argument that any claim in “barber shop” or “barber pole” was invalid for genericity or descriptiveness.)

Fortunately for the Board, its regulation survived Central Hudson. The state regulated barbers for public health/safety reasons and required them to be licensed as barbers before offering barbering services or holding themselves out as barbers. The law specifically barred the “display [of] a barber pole or use [of] a barber pole or the image of a barber pole in … advertising” without a license.

If commercial speech is inherently misleading, it gets no First Amendment protection. That was likely the case here, the court found. At plaintiff’s bar, “patrons first encounter a fully equipped barber service station with a service mirror, tools, and capes used in barbering.” The name “The Barber Shop Blackstone” was inherently misleading, “carrying no indication that the business is a bar not a barbershop, and using a logo with a barber pole that is exclusively associated with barbering.” The slogan “Where the Buzz is Real” didn’t help; nor did the reference to “special guest barbers” in the grand opening advertisement.

Osteria Segreto relied on the (bad) decision in Express Oil Change, L.L.C. v. Mississippi Bd. of Licensure for Pro. Eng’rs & Surveyors, 916 F.3d 483 (5th Cir. 2019), in which the court ruled that automotive service centers operating under the name “Tire Engineers” couldn’t constitutionally be held liable under state law restricting the use of the term “engineer.” The Fifth Circuit found that, because “engineer” “can mean many things in different contexts,” it was not inherently misleading, despite the state’s survey finding a very high percentage of consumers were deceived.

Somewhat in contradiction to the idea of arbitrary trademarks, the court here ruled that “nothing suggests that ‘barber’ or ‘barber shop’ can mean many things in different contexts,” so the terms could only mean licensed professionals. (And Apple can only mean fruit?) State law defines “barber shop” “expressly—and narrowly”—as “an establishment or place of business properly licensed as required by the act where one or more persons properly licensed are engaged in the practice of barbering.” And the contextual factors here reinforced that, including the logo, so the name and logo “inevitably will be misleading” as to the services available to customers:

The Court would not hesitate to hold that calling a bar “The Hospital Blackstone,” “The Doctor’s Office Blackstone,” “The Law Office Blackstone,” or “The Department of Motor Vehicles Blackstone” would be inherently misleading.

The remaining context didn’t help, as noted above. “There is an inevitably misleading inference that ‘The Barber Shop Blackstone’ provides barbering services although it may also provide alcoholic beverages—even if there is no evidence that anyone was actually deceived about the services or goods provided. The parties do not dispute that there are barber shops that also have liquor licenses.”

Although technically Central Hudson analysis can simply end if the regulated commercial speech is inherently misleading, the court considered the other prongs. The only serious challenge was to the regulation’s tailoring. Central Hudson requires a restriction to “directly advance” a “substantial” governmental interest. “Restricting unlicensed entities from using ‘barber shop’ and a ‘barber pole’ in their advertising plainly provides effective support for and directly advances the government’s purposes of protecting both ‘the interest of public health, public safety, and the general welfare’ and ‘the skilled trade of barbering and the operation of barber shops [that are] affected with a public interest.’” Although the existence of less restrictive alternatives is relevant, intermediate scrutiny doesn’t require a perfect fit, and the fit here was reasonable.

abortion clinic can proceed with false advertising claims against for-profit ad agency and (in part) the anti-abortion "center" it touted

Four Women Health Servs., LLC v. Abundant Hope Pregnancy Resource Center, Inc., No. 1:24-cv-12283-JEK, 2026 WL 836424 (D. Mass. Mar. 26, 2026)

Four Women is a licensed healthcare clinic that provides reproductive healthcare, including abortion care, to its patients. Abundant Hope is a “nonprofit crisis pregnancy center” that opposes abortion operating in a neighboring building. Four Women sued for state and federal false advertising; the court dismissed the Massachusetts Chapter 93A claim against Abundant Hope but denied dismissal as to the Lanham Act claim. Four Women also stated a plausible Chapter 93A claim against CLM, “a for-profit entity paid by Abundant Hope to make allegedly misleading advertisements about the services provided at the Attleboro Women’s Health Center.” The other defendants weren’t reachable under Chapter 93A because “Abundant Hope is a nonprofit that did not charge for its services, which advanced its pro-life mission, and its officers furthered that charitable mission.”

In 2018, Abundant Hope relocated next door to Four Women and put the name “Attleboro Women’s Health Center,” or “AWHC” for short, on its office. AWHC purports to furnish patients with free medical services, including ultrasounds and pregnancy consultation, testing, and diagnoses, but “is not a separate corporate entity from Abundant Hope, nor is it a licensed medical provider.”

Abundant Hope hired CLM, a for-profit marketing agency in Missouri, to manage that website and place advertisements on Google promoting AWHC to women seeking abortion care. Abundant Hope approved the language drafted by CLM. CLM also provides Abundant Hope with the contact information of potential clients and describes the services that they are seeking based on forms that those “leads” completed on AWHC’s website or elsewhere.

The alleged falsities: On its website and in Google advertisements, AWHC is advertised as a “Women’s Health Center” that has performed hundreds of “medical” tests and appointments and that can furnish “medical services,” including pregnancy testing and ultrasounds. But AWHC does not employ an on-site licensed doctor or Advanced Practice Registered Nurse, and state law requires such licensed medical professionals to diagnose the viability and location of a fetus.

AWHC also allegedly encourages women to access its services by falsely representing on its website that an ultrasound and a determination regarding viability are necessary to obtain an abortion.

AWHC’s website misrepresents that AWHC provides abortion care by listing “abortion” first in the “Options” page and, on the “Abortion” page, urging women who are “thinking about abortion” to “MAKE AN APPOINTMENT.” The website also includes a client testimonial describing AWHC as a “[g]reat place for women considering abortion.” While other pages on AWHC’s website include a small disclaimer at the bottom that AWHC does not perform abortions, these pages and its other advertising contain no such disclosure. Google advertising further implies that AWHC performs abortions because AWHC appears among the first Google search results for “abortion near me attleboro ma,” with an advertisement for scheduling an appointment and links to “Abortion Cost,” “Abortion Pill Info,” “Abortion Clinic Info,” and “Abortion Info.”

Four Women alleged diversion: Between January 2023 and August 2024, 591 patients called both AWHC and Four Women. Many women “unknowingly provided their contact information to Abundant Hope through AWHC’s website or CLM’s Google advertising,” and AWHC allegedly schedules appointments with callers without informing them that it does not furnish abortion care and, once on-site, offers them pamphlets falsely stating that abortion is “dangerous” in order to deter them from going to Four Women.

Chapter 93A prohibits “an unfair or deceptive act or practice” between those “engage[d] in the conduct of any trade or commerce.” Abundant Hope and its officers weren’t engaged in “trade or commerce,” which the law defines, in relevant part, to “include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services.” This language “indicates an intent that the services be distributed in exchange for some consideration or that there must be other strong indications that the services are distributed in a business context.”

Using a for-profit marketing agency didn’t change that calculus; “[i]n most circumstances, a charitable institution will not be engaged in trade or commerce when it undertakes activities in furtherance of its core mission.”

However, defendant CLM was a for-profit entity that has been paid “substantial sums” by Abundant Hope to advertise AWHC’s services. “CLM is therefore operating in a business context by receiving payment for its advertising services, and its activities fall squarely within the definition of ‘trade or commerce’ under Chapter 93A.” It wasn’t immunized just because its profit-making activities could be said to further the core mission of a nonprofit organization.

CLM also argued that, since Abundant Hope couldn’t be held liable under Chapter 93A, it couldn’t be held liable for what was essentially aiding and abetting. “But under Massachusetts law, one entity’s participation in another’s tortious conduct can lead to liability under Chapter 93A, even if the other entity is not subject to Chapter 93A liability.”

And its conduct in advertising/running the website was plausibly misleading, even if everything it produced was literally true. It was also plausible that the deception injured Four Women by diverting patients. Four Women alleged multiple specific instances in which women sought abortion care at Four Women but, as a result of confusion, ended up at AWHC.

Lanham Act: Why a different result for Abundant Hope on “commercial advertising or promotion”? The complaint adequately alleged that the defendants had an economic motive and thus engaged in commercial speech. Even though Abundant Hope is a nonprofit organization that provides free services at AWHC, “as a for-profit business, CLM has a clear economic incentive and is paid to promote AWHC’s services.” Nor was AWHC’s provision of free services and its status as a nonprofit organization dispositive. A nonprofit organization’s promotional advertising of services can directly relate to its “ability to fundraise and, in turn, to buy more advertisements.”

Abundant Hope’s paid promotion of its services included $38,846, or nearly 17% of its total functional expenses, in 2022 alone. And Abundant Hope “promotes its diversion of patients from Four Women and AWHC’s provision of free services in its fundraising.” Because Abundant Hope “has a direct economic stake in the provision of its ... service[s]” and advertises those services “in the hopes of realizing an economic gain” through fundraising “rather than merely informing the public or pursuing its ideological views, it may reasonably be viewed as economically motivated.”  

Four Women also adequately alleged that the defendants’ representations were made with the intent of influencing potential customers to purchase the services offered at AWHC; “purchase” here doesn’t require an exchange of money. [Probably more to the point, the word “purchase” in the Gordon & Breach test isn’t part of the statute, and we should be reasoning about what “commercial advertising or promotion” means rather than what a word from Gordon & Breach means.] And [although Lexmark should have abrogated this element], the complaint plausibly alleged commercial competition in the market for reproductive health care.

Materiality: Defendants admitted that AWHC is not “a licensed medical provider” or “facility” and “has never been licensed by the Massachusetts Department of Public Health to provide medical care,” but  they identify AWHC as Abundant Hope’s “medical” arm that furnishes “medical” services; promote AWHC as providing “medical appointments and medical tests” on its website; and advertise elsewhere, including on Abundant Hope’s website, that AWHC provides “medical” services to women, including pregnancy testing and ultrasounds. “These statements give the mistaken impression that AWHC is a medical provider that lawfully performs the identified medical procedures.” Likewise, misleadingly suggesting that an ultrasound and a determination regarding viability are necessary preconditions to obtaining an abortion, and misleadingly suggesting that AWHC provides abortion care, were plausibly material for the same reasons they were plausibly misleading. The complaint also provided examples of actually deceived consumers, giving rise to an inference of materiality.

First Amendment: Four Women’s claims do not target any speech the defendants wish to make, or have made, about their pro-life viewpoint or any of their views about the propriety of abortion. Rather, the claims are narrowly addressed to AWHC’s advertisements and website content that, as alleged, contain false or misleading information and divert women seeking abortion care from Four Women. Where, as here, a plaintiff plausibly alleges that the defendant engaged in commercial speech through false or misleading advertisements, the First Amendment does not provide refuge from claims under the Lanham Act or Chapter 93A.

Cases like NIFLA weren’t apposite, because Four Women wasn’t a government actor and it was challenging only false or misleading advertising, not seeking to compel speech. [Yeah, good luck with that on appeal.]

court enjoins lawyer from using exaggerated/distorted animation of misfiring gun in advertising

Sig Sauer, Inc. v. Jeffrey S. Bagnell, Esq., LLC, No. 3:22-cv-00885 (VAB), 2026 WL 867181 (D. Conn. Mar. 20, 2026)

Bagnell, a lawyer, commissioned a graphics company to create an animation purporting to show how a P320 pistol could misfire absent a trigger pull, known as an “uncommanded discharge.” He later posted that animation to YouTube and published it on his firm’s website; he represents plaintiffs who claim that they have been injured by uncommanded discharges from P320s.

The court granted a permanent injunction against Bagnell’s advertising use, though cautioning that the issue here was not “whether the P320 pistol can misfire or undergo uncommanded discharges, or whether that issue should properly be the subject of litigation elsewhere, or public commentary anywhere.”

Commercial advertising or promotion: Lawyer advertising is commercial speech, and the animation was made for the purpose of influencing potential clients. It was available online. Even if it also was attempting to raise awareness about a public safety concern, “[a]dvertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.”

Falsity:

The P320 is a striker-fired pistol, meaning that a pull of the trigger initiates a sequence of internal components to move, culminating in the releasing of a compressed spring, which drives a pin forward to impact the cartridge, causing the gun to fire. The Animation, which is approximately five minutes long, claims to show how vibrations or sudden movements could cause the P320 to fire absent a trigger pull.

The animation opens with a written message that the P320 contains a “mechanism of failure,” “suggesting that the following sequence is that mechanism.” It then depicts a CT scan of a P320 before moving into fully animated renderings of the internal components of the firearm combined with text guidance that it is possible for the P320 to have a “defective discharge” with “no trigger pull.”

The court found that Sig Sauer demonstrated that it would not be possible for the P320 to have the “mechanism of failure” specifically depicted in the video, and identified five literally false statements within the video about specific components of the pistol.

First, the video falsely depicts malformed versions of two P320 components, the sear and the striker foot, as having “inset surfaces,” which could lead to an unsafe “rollover condition.” Sig Sauer’s expert witness demonstrated that both components are flat with straight edges, making “rollover” impossible.

The animation showed a lumpy striker foot based on a photo that the lawyer knew depicted grease buildup. [Though knowledge isn’t required.]

Second, the video falsely depicts the slide’s ability to move up away from the frame, allowing the striker foot to walk up off the sear and fire without a trigger pull. This wasn’t physically possible: two steel parts—the slide and frame rail—merged into each other in an obscured part of the video. Yellow lines show the location of the slide channel, and a red box shows the location of the rail: An accurate depiction would have the red box sitting inside the two yellow lines.

Third, there were key differences between the striker’s so-called safety notch depicted in the video and the actual P320 striker safety notch, which is angled and undercut:

Although this portrayal allowed them to claim that the safety lock could slip over the safety notch to result in an uncommanded discharge, “the physical geometry of the components prevents this from occurring.” The safety notch as depicted in the video is 50% shorter than the actual component, adding credibility to the otherwise inaccurate claim that the lock could slide past the notch.

Fourth, the safety lock appeared less stable in the video than it is in reality: the video showed a bulbous, rounded appearance fitting loosely against the striker, while the real striker safety lock has flat edges and is tightly fitted against the striker.

The video falsely represents the dimensions of the striker foot and striker housing by depicting “[e]xcessive space” between the two components.

These false claims “distort the firearm’s components and safety features to support a claim that sudden impact or vibration leads to unintentional discharge.”

Materiality: A firearm’s safety to its bearer is plainly an “inherent quality or characteristic” and “likely to influence purchasers,” as YouTube comments like “Should I stop carrying my P320?” and “This is definitely plausible and very well described ... BTW I own a Sig M18 with a safety” showed.

Defendants didn’t rebut the resulting presumption of irreparable harm, even if Sig Sauer couldn’t show lost sales. The video was viewed as many as 37,000 times on YouTube over the seven-month period before it was taken down, and at least 80,000 times on another website. For injunctive relief, that was enough. First Amendment concerns were minimal because this was a post-trial order dealing with commercial speech, not a prior restraint.

Preventing use of the video for advertising purposes “does nothing to prevent the Defendants from continuing to practice law, represent plaintiffs against Sig Sauer, publicly express opinions about Sig Sauer or its products, or using even this version of the Animation in the context of other litigation.” The court took no position on whether the animation would be admissible in a tort case and suggested that its decision was narrow and its injunction should not “be construed to affect the ability of the Defendants to use any image, take any position, or make any argument to a court in any other litigation.”

False endorsement claim can proceed against gov't issued license plates and gov't facility named for Roberto Clemente

Clemente Properties, Inc. v. Pierluisi-Urrutia, --- F.4th ----, 2026 WL 125574, No. 23-1922 (1st Cir. Jan. 16, 2026)

The representatives of the family of a famous deceased Puerto Rico baseball player, Roberto Clemente, sued the Commonwealth of Puerto Rico and several related defendants over the use of Clemente’s name and image on commemorative license plates and registration tags. The court of appeals partially reversed the judgment in favor of defendants on the trademark claims, showing the breadth of “use in commerce” compared to “commercial advertising and promotion.”

ROBERTO CLEMENTE is registered for various promotional goods and charitable/educational services, though the court of appeals didn’t note the goods and services; it hardly matters given the theories at issue.

Ciudad Deportiva Roberto Clemente operates a youth sports facility (of the same name) on land donated by the Commonwealth, but is in poor repair (plaintiffs blame the Commonwealth); the complaint didn’t make clear what its relationship was with plaintiffs. Appellants authorized Ciudad Deportiva “to use the trademark, name and likeness of Roberto Clemente” on commemorative vehicle license plates.

Then, in 2021 the P.R. legislature enacted new laws requiring any driver who acquired a new Puerto Rico license plate in calendar year 2022 to purchase a special plate commemorating the 50th anniversary of Roberto Clemente’s 3,000th hit for $21 extra; any member of the public who did not need to acquire a new license plate could also pay $21 to exchange their existing license plate for the commemorative plate. Another law added a mandatory $5 surcharge to registration tags issued in calendar year 2022 in return for a commemorative tag. Both the plate and tag had an image of Roberto Clemente; the words “Clemente,” “anniversary,” and “3000 hits”; and the numbers “21” and “50.” The money was to go in “the Roberto Clemente Sports District Fund,” for the exclusive use of the Department of Sports and Recreation. Drivers who got registration tags were also presented the opportunity to make a donation to the Roberto Clemente Sports District Fund.

“Puerto Rico’s citizenry reacted negatively to the new commemorative license plates and registration tags, and the public believed that appellants were receiving some financial benefit for the charges associated with the commemorative items.” Also, the Transportation Secretary made a televised statement, in January 2022, that the funds collected for commemorative plates and tags would go to “the Roberto Clemente Foundation.” And a permit issued by the Department of Transportation and Public Works lists the $5 surcharge for vehicle registration tags next to the words “Roberto Clemente Fund.”

Then the legislature transferred Ciudad Deportiva’s land back to the Commonwealth for the purpose of building the “Roberto Clemente Sports District” “as a sports and recreational facility for the enjoyment of Puerto Ricans and sports tourism.” Plaintiffs alleged that the law communicates “some kind of tacit endorsement of Roberto Clemente to this project” by expressly referring to “his vision of building a Sports City for the benefit of our young people and future generations.” The court of appeals, notably, is open to this theory even though it seemingly doesn’t think much of the lawyering.

The district court found that government-issued plates and permits weren’t use “in connection with goods or services.” But they were: license plates and registration tags are goods, and the Commonwealth collected money for them; the PTO even has a classification for license plates. Also, to the extent that the parties disputed “use in commerce,” the court of appeals suggested that the Second Circuit was right that the definition in the Lanham Act only applied to acquisition of rights, not to infringement—missing the Supreme Court’s fairly clear instruction to the contrary in Hetronic.

“While trademark owners suing state governments have generally lost, neither the district court nor the Commonwealth Defendants cite a case suggesting that government activities are inherently, or even presumptively, non-commercial.” Accepting the well-pleaded allegations of the complaint, “the Commonwealth Defendants did not use Clemente’s name or image simply to offer commentary about Clemente or to conduct some administrative government task.”

What about naming the Sports District after Clemente? Well, those allegations were “tied” to the other claims because “[p]roceeds from the sale of license plates and registration tags were set aside to raise money for the Sports District. And the Commonwealth Defendants invoked Clemente’s name when soliciting donations for the Roberto Clemente Sports District Fund.” If an infringement claim can proceed against “defendants who use someone’s name or image to solicit donations in support of public non-profit services,” which they can—citing United We Stand, about political parties—then it can proceed against the Sports District on remand.  

The 43(a)(1)(A) false association claim survived. Plaintiffs satisfied Lexmark by properly alleging reputational harm: “appellants’ business interests in licensing the Clemente mark for merchandise or other projects were plausibly impacted by this public blowback. This is especially so where appellants’ business reputation is built in part on an association with charitable endeavors, and the public backlash was in response to the perceived extortionate nature of the commemorative license plates and registration tags, goods that all Puerto Rico residents who needed new plates or tags in 2022 were forced to purchase.”

True, plaintiffs didn’t assert valid rights in Clemente’s image—they can’t just claim a trademark in “any pictorial depiction of Roberto Clemente.” However, they can still bring a false endorsement claim without having rights in a specific image. Use of Clemente’s likeness, the court said, was a “symbol” or “device” under 43(a). (This is an anachronistic reading of the meaning of the terms at the time, but that ship has long sailed.)

And likely confusion was plausible. This wasn’t like the use in the case relied on by the district court: a calendar that featured many “[p]hotographs of baseball, its players and assorted memorabilia” where Babe Ruth was just “one ballplayer among the many featured in the calendar.” The use of Clemente’s name and image in connection with a project whose proceeds were to be collected for “the Roberto Clemente Sports District Fund” was different enough to make confusion plausible, especially given the allegations of actual confusion and allegations that Clemente “was a highly recognizable figure whose name and image appellants had licensed for use in a different license plate program.” The Commonwealth expected to collect $15 million from the program, which could be recovered under the Lanham Act. (I have … questions about this statement. After all, the reason for the backlash was that people who needed a license plate during that year had no choice but to pay. Isn’t there a causation problem? Voluntary purchasers aside, as to whom I can see a disgorgement argument, confusion can’t have played any role in the payments made by people following the law that required them to have plates/permits.)

The court also therefore revived the dilution claim. (Household name fame as a mark for goods and services, as opposed to as a figure of baseball history, seems unlikely.)False advertising failed, though, because “commercial advertising or promotion” is substantially narrower than “use in commerce”/“use in connection with goods and services.” At most, the Commonwealth used “methods that communicate information to the public,” but that didn’t make its speech “commercial speech.”

Nor did the alleged infringement constitute a Fifth Amendment taking of appellants’ property. (There’s a further issue the court of appeals didn’t mention, consistent with its lack of interest in the goods/services specified in plaintiffs’ registration: Because of their failure to plead any “trademark” other than the registered matter, their trademark doesn’t cover the uses at issue even if there’s a false endorsement. So whatever exclusive right the registered trademark grants, the Commonwealth’s use shouldn’t be considered within the scope of that right.)

Plaintiffs argued that the Commonwealth engaged in a “categorical taking” because a trademark is property and the Commonwealth violated plaintiffs’ right to exclude. A “categorical taking” doesn’t require a contextual inquiry; a “regulatory taking” requires balancing to figure out if the government did so much damage to the value of property that it ought to pay. A non-physical, regulatory taking is only “categorical” where it “denies all economically beneficial or productive use” of the plaintiff’s property.

This case obviously wasn’t a categorical taking. First, physical invasion (the usual categorical taking) wasn’t possible for intangible rights. Second, the Commonwealth wasn’t alleged to have deprived them of all economically beneficial use of their marks.

Plaintiffs argued that (1) they had a right to exclude others from using the mark and (2) the commonwealth violated that right to exclude, drawing on recent Supreme Court precedent that requiring landowners to allow union organizers access to their land was a taking. But isolated instances of infringement didn’t equate to preventing a trademark owner from exercising their right to exclude, the way that the state’s labor law had prevented landowners from suing organizers for trespass.

Also, a temporary and partial physical incursion is still a physical incursion: “In the case of physical property, allowing even one individual to temporarily occupy or possess the property physically displaces the owner from possession or control of that portion of the property, however small.” But “[u]se of a trademarked word or image does not necessarily have the same effect.” (Note: I think the court should be talking about infringement, not “use.” Not all use of a trademark is within the scope of trademark “property” right, and the court worsens its point w/r/t takings analysis by not being more precise.)

It's not just that the TM owner can keep using the mark in the TM use sense during government infringement. It’s that it can still keep using the right in the “property right” sense during infringement: it can still sue the government, and other alleged infringers, because it still has that right. So the value of the right has not been completely destroyed, as it would have to be for a nonpossessory act to constitute a categorical taking. So balancing it is.

Also, interestingly:

There is special reason for caution in the trademark context: a trademark owner’s right to exclude is less robust when compared to other forms of property—and even when compared to other forms of intellectual property. Thus the “background limitations” on any property interest in trademarks might well be exceptions that swallow the rule, or at least require more careful assessment than the more straightforward limitations that apply in the case of physical property.

(Perhaps another way to say it: infringement is neither trespass nor nuisance; it is infringement, which is why intangible rights have to be analyzed differently.)

However, Puerto Rico had sovereign immunity, so defendants couldn’t be sued in their official capacities. The Lanham Act purports to abolish state sovereign immunity, but the Supreme Court found that unconstitutional for want of sufficient tailoring to the prevention of constitutional violations by the States, and Puerto Rico is, per circuit precedent, treated like a state for sovereign immunity purposes “unless the language of a particular statute demands [a different] result” or “some other compelling reason” exists. 

What about Section 1122(a) of the Lanham Act?  Section 1122(a) provides that “[t]he United States, [as well as] all agencies and instrumentalities thereof, ... shall not be immune from suit ... for any violation under this chapter.” 15 U.S.C. § 1122(a). And the Lanham Act’s definition of the “United States” “includes and embraces all territory which is under its jurisdiction and control.” But the clear statement rule requires any act of Congress that purports to waive or abrogate sovereign immunity to be “unmistakably clear in the language of the statute,” and this wasn’t, because the phrase “territory which is under [the United States’] jurisdiction and control” was open to multiple interpretations. “Whether the word ‘territory’ captures Puerto Rico is itself ambiguous, given Puerto Rico’s status as a self-governing commonwealth.”

The court found that, “[p]articularly in the Lanham Act, it also seems plausible that Congress used the words ‘all territory’ (singular) to ensure that the statute would cover the entire geographic scope of the United States, rather than refer to the territories (plural) of the United States as political or governmental units.” Such a geographical reading would be consistent with provisions of the Lanham Act governing the importation of goods “into the United States,” and defining the fame of a mark based on recognition by “the general consuming public of the United States.” Indeed, it wasn’t even “unmistakably clear” that the attempted revocation of sovereign immunity—which referred to the States—showed an intent to waive Puerto Rico’s sovereign immunity.

Of course, prospective injunctive relief was still possible, but not here. The district court found no ongoing violation of federal law because the sale of license plates and registration tags occurred only during calendar year 2022. What about the “unauthorized use of the Roberto Clemente trademark in connection with the Roberto Clemente Sports District”? This argument was waived. (!)

Qualified immunity: You might think you know how this will go, but these aren’t cops. Also waived at this stage! The individual defendants “specifically argued that appellants had not established a claim ‘under the Lanham Act’ and identified a particular element of one Lanham Act claim that they believed was missing” as their qualified immunity argument, and since they were wrong about that on the law, too bad. However, failing to properly invoke qualified immunity on a motion to dismiss does not necessarily preclude defendants from doing so at a later stage of litigation.

The court also was “skeptical” of plaintiffs’ argument that the Lanham Act abolished qualified immunity by waiving/trying to get rid of sovereign immunity. “[W]hen legislators have chosen to abolish qualified immunity, they have done so with much greater clarity.”

Chief Judge Barron partially dissented and would have affirmed the dismissal of claims for damages against the individual government defendants. The dissent would have read the district court to have found qualified immunity as to them on the ground that it was not clear that “use in commerce” covered the issuance of official license plates. The district court wrote, after discussing that element, that the individual defendants “were merely complying with their official duties to enforce a law as adopted by the legislature. As per the caselaw and other applicable law to date, any reasonable public official in their situation could have concluded that no trademark or proprietary rights were being violated by the imposition of the license fees that Plaintiffs have challenged in this case.” There was no clearly established precedent that governmental conduct akin to that involved here satisfies the “commercial use” element. “[W]hile out-of-circuit precedent establishes that private parties may violate the Lanham Act when they issue ‘marquee license plates,’ it does not speak to the distinct issues that this governmental context raises. Nor are those issues resolved by precedent that provides that, in general, state officials may violate the Lanham Act when they act in their official capacity.”

thorough opinion allows CT's greenwashing claims against Exxon to proceed

State v. Exxon Mobil Corp., 2025 WL 3459468, No. HHDCV206132568S (Conn. Super. Ct. Nov. 26, 2025)

The court allows greenwashing claims against Exxon to proceed under the Connecticut Unfair Trade Practices Act (CUTPA). The state alleged a decades-long “systematic campaign of deception” about the impact of its fossil fuel products on the earth’s climate and a more recent “greenwashing” campaign designed to bolster its image as an environmental steward in order to attract consumers.

The state focused particularly on an advertising campaign that began in 1970 and continued until 2007 or later, including advertorials in the New York Times nearly every Thursday between 1972 and 2001 with knowingly false claims such as

• Claiming that “a greenhouse effect” that could “melt the polar ice caps and devastate U.S. coastal cities” was a “lie” and a “myth of the 1960s and 1970s.”

• Describing predictions concerning the impact of global warming as “media hype” creating “an unwarranted sense of crisis.”

• Promoting the delay of any response to climate change based on a supposed “lack of scientific data.”

• Using scientific data in a misleading fashion to suggest that fossil fuels had little to do with global warming and that “little if any warming” had occurred.

Greenwashing: Exxon allegedly promotes its “minor and insignificant alternative fuels program to obscure its continued focus on its fossil fuel business and mislead the public into believing that the defendant is making serious efforts to address climate change.” The ads also allegedly mislead consumers into believing that “certain of its fossil-fuel-based products can help consumers reduce greenhouse gas emissions and improve fuel economy.” Exxon allegedly “sought to falsely induce purchases and brand affinity by portraying ExxonMobil as a company working on a solution to climate change through selling ‘green’ products.”

The materially false claims allegedly included: 

a. that ExxonMobil was uncertain that climate change was real, occurring or would occur in the future;

b. that ExxonMobil was uncertain that human activity, including the combustion of fossil fuels, contributed to climate change;

c. that there was time to wait before taking action;

d. that there was a balanced debate amongst scientists about whether climate change was occurring, its relationship to human activity, and whether its effects would be positive or negative;

e. that ExxonMobil’s research supported the assertions in (a) – (d).

The state sought penalties based on the number of false ads, as well as injunctive relief against making the claims and requiring disclosure of Exxon’s relevant internal research. It disclaimed seeking any damages caused by Exxon’s contribution to climate change.

Exxon argued that federal law preempted claims seeking monetary relief for injuries allegedly caused by interstate and international greenhouse-gas emissions. Although the court followed the framework in City of New York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021), finding preemption, it distinguished the claims at bar. The Chevron case involved claims for “(1) public nuisance, (2) private nuisance, and (3) trespass under New York law stemming from the [defendants’] production, promotion, and sale of fossil fuels. The [plaintiff] requested compensatory damages for the past and future costs of climate-proofing its infrastructure and property, as well as an equitable order ascertaining damages and granting an injunction to abate the public nuisance and trespass that would go into effect should the [defendants] fail to pay the court-ordered damages.”

Here, the deceptive marketing claims and, to some extent, the nature of the relief sought counseled against preemption. The state’s CUTPA claims didn’t amount to state regulation of “the production, sale and use of fossil fuels,” but were limited to “regulating the associated marketing conduct.”

Indeed, in Connecticut v. Exxon Mobil Corp., 83 F.4th 122, 142 (2d Cir. 2023), the Second Circuit addressed federal removal jurisdiction in this case in a decision that resulted in remand to state court. The court said, “Each of the three necessary elements of Connecticut’s deception claim is one that a court could ... resolve[ ] ... without reaching the federal common law of transboundary pollution.... We entirely agree with the district court’s analysis of this point: Connecticut alleges that ExxonMobil lied to Connecticut consumers, and that these lies affected the behavior of those consumers. The fact that the alleged lies were about the impacts of fossil fuels on the Earth’s climate is immaterial.” So too with the unfairness claim.

On the merits, the complaint stated a claim. Exxon argued that the statements were made outside of Connecticut. CUTPA defines “trade” and “commerce” as: “the advertising, the sale or rent or lease, the offering for sale or rent or lease, or the distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity or thing of value in this state.” The federal courts have “held that CUTPA does not require that a violation actually occur in Connecticut, if the violation is tied to a form of trade or commerce intimately associated with Connecticut, or if, where Connecticut choice of law principles are applicable, those principles dictate application of Connecticut law.” Based on the allegations of the complaint, some of the alleged tortious conduct occurred in Connecticut (advertorials in papers delivered to Connecticut), and that was enough.

Were the claims made in “trade or commerce”? Lafferty v. Jones, 229 Conn. App. 487, 327 A.3d 941 (2024), held that Alex Jones’s defamatory and harassing speech, which was motivated by desire to sell products, but otherwise unrelated to those products, fell outside the scope of “trade” and “commerce” in CUTPA. “[N]othing in the defendants’ speech, in and of itself, concerning the Sandy Hook massacre made any mention of their products.” That wasn’t the case here. “The speech at issue in the present case is expressly alleged to be about the defendant’s products, if not specifically then genetically.” [ed. note: generically?] After all, “advertising” “is not limited to direct and express solicitations for the sale of a product,” but includes “[a]ny form of public announcement intended to aid directly or indirectly in the sale of a commodity....” At least without a more developed factual record, the court wasn’t going to reject the claims here.

Were the statements falsifiable, or just opinion or true? Were they immaterial? The complaint adequately alleged deceptiveness; many of these disputes were for the factfinder. In determining whether a claim is falsifiable or opinion, Connecticut requires “analysis of three basic, overlapping considerations: (1) whether the circumstances in which the statement is made should cause the audience to expect an evaluative or objective meaning; (2) whether the nature and tenor of the actual language used by the declarant suggests a statement of evaluative opinion or objective fact; and (3) whether the statement is subject to objective verification.”

“It may be that some of the statements referenced in counts one and two of the complaint are expressions of opinion but … this court is being asked to make that judgment based only on the allegations of the complaint.” The complaint sufficed, especially given allegations that Exxon’s internal research disagreed with its ads. Interpretation of CUTPA is supposed to be guided by FTC interpretations, and the FTC has long held that “[c]laims phrased as opinions are actionable... if they are not honestly held, if they misrepresent the qualifications of the holder or the basis of his opinion or if the recipient reasonably interprets them as implied statements of fact.”

The disclosure-based claims also survived because, even though there’s no duty to disclose in many circumstances, one who decides to speak may not omit material facts if the omission misleads reasonable consumers about the import of the affirmative claims, and that was alleged here.

And materiality was properly alleged, given that materiality is a lower standard than reliance:

The FTC’s publication of the Green Guides reflects a recognition that environmental issues are a matter of interest and concern to consumers and that, therefore, the defendant’s alleged greenwashing efforts are material, at least potentially so. It is fair to be skeptical that consumers would choose to purchase gasoline from the defendant based on an erroneous impression that the defendant is proactively and earnestly engaged in efforts to reduce greenhouse gas emissions through the development of alternative energy sources and other more eco-friendly fossil fuel products. It is not a question of reliance by the consumer, however, only a question whether the consumer is influenced by the defendant’s allegedly misleading environmental marketing. That is a question of fact, not a question of law.

Unfairness claims survived for much the same reasons. CUTPA’s unfairness standard is taken from the FTC:

(1) [W]hether the practice, without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise—in other words, it is within at least the penumbra of some common law, statutory, or other established concept of unfairness; (2) whether it is immoral, unethical, oppressive, or unscrupulous; (3) whether it causes substantial injury to consumers, [competitors or other businesspersons].... All three criteria do not need to be satisfied to support a finding of unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three....

Did the First Amendment bar the claim? Not at this stage. Commercial speech “can include material representations about the efficacy, safety, and quality of the advertiser’s product, and other information asserted for the purpose of persuading the public to purchase the product.” And “[a]dvertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.” Interestingly, the court relied heavily on Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014) (an ad congratulating Michael Jordan on his career and bearing store branding, but not explicitly proposing a commercial transaction or mentioning a specific product, was commercial speech), and Kasky v. Nike, Inc., 45 P.3d 243 (2002) (Nike’s advertorials and letters to the editor claiming fair labor practices were commercial speech). Jordan: “An advertisement is no less ‘commercial’ because it promotes brand awareness or loyalty rather than explicitly proposing a transaction in a specific product or service.”Kasky: “speech is commercial if the speaker is a commercial person or entity, the intended audience is likely to be consumers of the speaker’s products or services, and the content of the speech includes ‘representations of fact about the business operations, products or services of the speaker... made for the purpose of promoting sales of, or other commercial transactions in, the speaker’s products or services.’”

In dismissing cert in Kasky as improvidently granted—basically because they couldn’t figure it out—Justice Stevens wrote:

Whether similar protection [as in defamation law] should extend to cover corporate misstatements made about the corporation itself, or whether we should presume that such a corporate speaker knows where the truth lies, are questions that may have to be decided in this litigation. The correct answer to such questions, however, is more likely to result from the study of a full factual record than from a review of mere unproven allegations in a pleading. Indeed, the development of such a record may actually contribute in a positive way to the public debate.

“Unfortunately, in the twenty-two years that followed the Court’s decision to dismiss the writ of certiorari in Kasky, it still has not addressed the ‘important,’ ‘difficult’ and ‘novel’ issues presented.” Preach!

Anyway, Exxon’s conclusory claim that the statements described in the complaint do not propose commercial transactions were insufficient. “[T]he mere presence of non-commercial information in an otherwise commercial presentation does not transform the communication into fully protected speech.”

Nor did the Noerr-Pennington doctrine, which protects the right to petition the government through lobbying, litigation, or other advocacy including publicity campaigns, bar the claims at this stage.

The court also rejected challenges to various smaller bits of the complaint, such as the state’s claim for relief seeking “an order that ExxonMobil fund a corrective education campaign to remedy the harm inflicted by decades of disinformation, to be administered and controlled by the State or such other independent third party as the Court may deem appropriate.” This wasn’t government-compelled speech or compelled subsidy of private speech; the funds would be used by the state to pay for corrective education.

Restitution/disgorgement: the state sought “payment of the monetary value of the defendant’s gain” to the state, acting on behalf of the citizens of the state. “[W]hen a public entity seeks disgorgement it does not claim any entitlement to particular property; it seeks only to deter violations of the [ ] laws by depriving violators of their ill-gotten gains.” This was a proper request.

Can the state reach decades back in its claims?  CUTPA’s three-year limitations period applicable to private enforcement actions does not apply to actions brought by the state. “The defendant presents scant authority in support of its proposition that an egregious delay by the sovereign violates due process.” It’s up to the legislature, not the judiciary, to abolish or modify the doctrine of nullum tempus (no limitations period runs against the state). Even if the court agreed that, at some point, nullum tempus must yield to due process, it couldn’t decide a laches-equivalent defense on a motion to strike. “The defendant is not precluded from raising due process concerns to temper the court’s consideration of the monetary relief sought by the plaintiff if the case reaches that juncture.”

"abortion pill reversal" proponents engaged in noncommercial speech, 2d Circuit agrees for PI purposes

National Institute of Family and Life Advocates v. James, --- F.4th ----, 2025 WL 3439256, No. 24-2481-cv (2d Cir. Dec. 1, 2025)

Unlike the similar California proceeding, the district court in NY granted a preliminary injunction against enforcement of consumer protection law against evidence-free “abortion reversal” claims, because there weren’t allegations of commercial benefit from promoting those claims. “The NIFLA plaintiffs are non-profit, faith-based organizations that have made, and seek to continue to make, statements regarding abortion pill reversal.” At this stage, they were likely to succeed on their First Amendment claim because their APR-related statements are noncommercial speech. The statements were religiously, not economically, motivated; the NIFLA plaintiffs didn’t provide APR and only refer individuals to third-party providers who could then administer APR; and they received no remuneration for their services, including no referral fees or commissions. The NIFLA plaintiffs didn’t charge for access to APR “information” or any of their pregnancy-related or parenting services.

“To hold otherwise could potentially subject a sweeping range of non-profits to regulation of their speech for providing the public with information and resources concerning critical services.” E.g., abortion information, LGBT rights groups in states that ban in-state gender-affirming care, or “a group that matches immigrants with organizations providing access to employment, English language classes, or immigration legal services.” “Expanding commercial speech in a way that covers public statements made by these types of organizations would push the commercial speech doctrine far beyond its ‘core’ of regulating commercial transactions.”

The AG argued that the speech should be considered commercial because “someone must bear the cost” of APR “be it insurance, the medical provider, or a charity,” and that the NIFLA plaintiffs offer services in the “stream of commerce” that have commercial value. “However, this would be true of any non-profit providing information, free services, and access to third-party providers; those services will inevitably have some commercial value and eventually someone will have to be paid for them.”

The AG also argued that “consumers will likely be led to believe that the NIFLA plaintiffs will arrange for them to receive [the APR protocol] because their intended statements invite consumers to access a network of physicians who are willing and able” to provide it, thus making the statements analogous to ads for other medical services. But the cases cited by the AG involved medical procedures or products offered in exchange for money. The NIFLA plaintiffs allege that they receive no direct or indirect payment for the services they provide or referrals they make. “Moreover, there is no evidence in the record, at this stage of litigation, to suggest that the NIFLA plaintiffs gain other types of economic benefits by engaging in this speech, such as an increased customer base or a capital increase through fundraising.” [If soliciting for nonprofits is noncommercial speech, why would ordinary fundraising be commercial speech as to statements about what the nonprofit does?]

The court emphasized that “no factor, including the speaker’s motivation, is dispositive to the noncommercial speech inquiry.” But it wasn’t just ideological motivation at issue here: the NIFLA plaintiffs were actually not providing or charging for services or getting direct or indirect compensation for their referrals.   

California's limits on use of "doctor" in healthcare settings are constitutional regulations of commercial speech

Palmer v. Bonta, 2025 WL 2882948, No. EDCV 23-1047 JGB (SPx) (C.D. Cal. Sept. 19, 2025)

Plaintiffs alleged that California Business and Professions Code § 2054(a), on its face and as enforced, violates the First Amendment because it provides, in relevant part:

[a]ny person who uses in any sign, business card, or letterhead, or, in an advertisement, the words “doctor” ..., the letters or prefix “Dr.,” ... or any other terms or letters indicating or implying that the person is a physician and surgeon ... without having at the time of so doing a valid, unrevoked, and unsuspended certificate as a physician and surgeon under this chapter, is guilty of a misdemeanor. No person shall use the words “doctor” or “physician,” the letters or prefix “Dr.,” ... or any other terms or letters indicating or implying that the person is a physician and surgeon ... in a health care setting that would lead a reasonable patient to determine that person is a licensed “M.D.” or “D.O.”

The Board of Registered Nursing supported this law only if it allowed nurses with a terminal degree (i.e., Doctor of Nursing Practice) to use “Dr.” “regardless of setting” so long as they indicated their profession or specialty on their badge and in communication. Bonta, on behalf of the Board of Registered Nursing, filed an Accusation against Erny, who is a Doctor of Nursing Practice (DNP), for “representing to patients that she was a medical doctor” in violation of Section 2054; the District Attorney for San Luis Obispo County then sought an injunction, civil penalties, and other equitable relief against her. She was ordered to pay $19,750 in civil penalties.

Plaintiff Palmer also holds a DNP. Between 2020, when she earned her DNP, and 2023, Palmer (1) wore a clinician’s jacket embroidered with “Dr. J. Palmer, FNP-C”; (2) introduced herself to patients, “I’m Dr. Jacqueline Palmer. I’m a nurse practitioner”; (3) signed her name on official clinic documents using the title “Dr.” and “FNP” as a post-nominal; and (4) was not aware that it was illegal to use the title “Dr.” on her clinician’s jacket or in any other way so long as she disclosed that she was a nurse practitioner. Palmer always disclosed to patients that she is a nurse practitioner and never practiced outside of her scope of practice for licensure.

Nonetheless, patients have assumed that Palmer was a medical doctor. The American Medical Association’s survey results that show that 39% of patients believe that a DNP is a physician.

After learning about the legal actions against Erny, Palmer stopped wearing her clinician’s jacket, stopped signing official clinic documents using the title “Dr.,” and asked others not to refer to her as “Dr.” She would like to return to her previous practices. Other plaintiffs had similar stories.

There is nothing that a nurse practitioner that has a DNP can do that a nurse practitioner that does not have a DNP cannot. DNP programs range from one to two years; they can be online with no in-person classes; they don’t have stringent admission requirements; they may not have, and plaintiffs’ programs didn’t have, courses in, e.g., anatomy, biology, biochemistry, immunology, physiology, pathology, or pharmacology; so too for clinical work with patients/patient interaction.

One plaintiff testified that he believed that he would attract more patients to his aesthetic clinic if he can call himself “Dr. Hanson” as opposed to not using the title “doctor,” because “[i]f patients were given the opportunity to pick between two clinics, one with Dr. Hanson and one with Mr. Hanson written on it, most would gravitate to the former.” Plaintiffs didn’t know whether patients know what the letters DNP, PHN, MSN, MASE, BSPT, or FNP-C mean (all relevant terms for credentialing) and largely didn’t know the terms until they sought more credentials.

Plaintiffs argued that Section 2054 is a content-and speaker-based restriction on speech, and thus subject to strict scrutiny. The court rejected this argument.

Facial challenge: Plaintiffs argued that the law “sweeps in its ambit an array of professionals who are not physicians or surgeons but who still can truthfully (and regularly) call themselves ‘Dr.’: psychologists (PsyD), pharmacists (PharmD), naturopaths (ND), physical therapists (DPT), and Ph.Ds (including honorary Ph.Ds).” In a First Amendment facial challenge, “[t]he question is whether a substantial number of the law’s applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.”

“The first step in the proper facial analysis is to assess the state laws’ scope.” “What activities, by what actors, do the laws prohibit or otherwise regulate?” The second step “is to decide which of the laws’ applications violate the First Amendment, and to measure them against the rest.” The party bringing the First Amendment facial challenge has the burden to show the full scope of the law’s coverage; to identify which of the law’s applications are constitutionally permissible and which are not; and, ultimately, to show that the law “prohibits a substantial amount of protected speech relative to its plainly legitimate sweep.”

The California Court of Appeals has found that the “purpose of [S]ection [2054] is to protect the public,” specifically by regulating the use of certain professional titles associated with the medical field—i.e., “Dr.” and “doctor”—in healthcare-related advertising and healthcare settings. The court found this was a regulation of commercial speech. The “use of professional titles and certifications in advertising, yellow-pages listings, business cards, and stationery is commercial speech.”

Plaintiffs argued the law expanded into noncommercial space by adding the phrase “in a healthcare setting that would lead a reasonable patient to determine that person is a licensed ‘M.D.’ or ‘D.O.’ ” Because the patient is already seeking out care from plaintiffs by the time they use “Dr.” or “doctor” in a healthcare setting, they argued that they were engaged in noncommercial speech and that any commercial speech was inextricably intertwined with fully protected speech.

Although using “doctor” in a healthcare setting wasn’t a traditional ad format, it was still commercial speech: The “specific product” plaintiffs sought to advertise when using “Dr.” or “doctor” in healthcare settings was “the expertise, knowledge, and quality of services these professional titles convey to patients and colleagues.” And they had an economic motive for the speech: “to solicit [and retain] a patient base” and improve their professional brand.

The facial challenge failed because the law regulated misleading speech, and even if it went beyond that, was ok under Central Hudson.

As-applied challenge: The Supreme Court has distinguished between “inherently misleading” speech and “potentially misleading” speech. When “advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive,” the advertising enjoys no First Amendment protection. The government may ban this type of commercial speech entirely. But if the speech is only “potentially misleading,” in other words, “if the information also may be presented in a way that is not deceptive,” Central Hudson (intermediate) scrutiny is required.

But here, the record indicated that plaintiffs’ particular form or method of advertising has “in fact been deceptive.”  It was undisputed that patients assumed Palmer was a medical doctor and that plaintiff Hanson makes it a point to explain to patients that he is not a physician when they call him “Dr.” Thus, the speech was inherently misleading even though it communicates truthful information. Plaintiffs conceded as much by agreeing that the use of “Dr.” or “doctor” in healthcare settings without further clarification generally refers to licensed physicians or surgeons. Accordingly, “[t]he assumption that substantial numbers of potential clients would be so misled is hardly a speculative one.”

California not only regulates the title “doctor,” it regulates the licensing and practice of physicians and surgeons. Plaintiffs didn’t meet these statutory requirements, and thus their use of “Dr.” or “doctor” was inherently misleading.

Even if it was only potentially misleading, the regulation would still satisfy Central Hudson in advertising and healthcare settings. California has a substantial interest in “protecting consumers from those who falsely hold themselves out as licensed physicians but [who] have not been duly licensed.” What about the fit between the legislature’s ends and the means it chose?

Plaintiffs argued that “at least as applied to nurse practitioners with DNPs, [who truthfully refer to themselves as “Dr.” or “doctor,”] [S]ection 2054[ ] does not directly advance Defendants’ only stated interest because it does not prevent fraudulent misrepresentations.”

Under Central Hudson, “the State must demonstrate that the challenged regulation advances the Government’s interest in a direct and material way,” which requires it to show “that the harms it recites are real and that its restrictions will in fact alleviate them to a material degree.” Empirical data, studies, anecdotes (whether in-state or extra-jurisdictional), history, consensus, and common sense are all relevant. Here, the “harms [California] recites are real” because the speech has caused some patient confusion. And it was reasonable to infer that some consumers will assume that Plaintiffs are licensed physicians or surgeons if they use “Dr.” or “doctor” in healthcare settings and in advertising materials promoting medical services even if Plaintiffs also identify themselves as DNPs, as borne out by the AMA survey showing 39% of patients believe that a DNP is a physician and plaintiffs’ own ignorance of what the letters DNP meant until they started pursuing higher education.

What about less restrictive alternatives? Plaintiffs argued that they were already required to disclose and explain their license and credentials, and California’s false advertising and unfair business practices laws already address concerns about patient deception. However, “[i]n considering the restriction imposed on commercial speech, [courts] do not require that it be the least restrictive means available.” Rather, what is required is “a reasonable fit between the legislature’s ends and the means chosen to accomplish those ends.”

Here, Section 2054 didn’t limit plaintiffs’ ability to describe themselves as DNPs or to otherwise accurately state their credentials. So there was a reasonable fit.

"abortion reversal" promoter engaged in inherently and potentially misleading commercial speech, court rules

Culture of Life Family Services, Inc. v. Bonta, 2025 WL 1677783, No. 3:24-cv-01338-GPC-KSC (S.D. Cal. Jun. 13, 2025)

In two opinions on the same day, the court didn’t give much comfort to an “abortion reversal” provider.

COLFS sought to enjoin AG Bonta’s pending state court false advertising proceeding against its “abortion reversal” claims. APR is touted for pregnant women who have started the chemical abortion process by ingesting mifepristone, the first pill out of two; it involves taking the hormone progesterone in order to counteract mifepristone’s blocking of the body’s natural supply of progesterone. The main proponent, COLFS’s medical director, has done small human case studies, claiming an overall fetal survival rate was 48%, higher for the subgroup that received progesterone intramuscularly (64%) and the subgroup that received a high dose of oral progesterone followed by daily oral progesterone until the end of the first trimester (68%).  

The state enforcement action under California’s UCL and FAL challenged as unsupported by credible scientific evidence: the use of the terms “reverse” and “reversal”; claims that APR “has been shown to increase the chances of allowing the pregnancy to continue”; claims that APR has a success rate of 64-68%; claims that the rate of birth defects following APR is “less or equal to the rate in the general population”; claims that “thousands of lives have been saved” through APR; claims that APR may be effective at longer time ranges and following administration of misoprostol and methotrexate; and claims that APR can cause only non-life-threatening side effects, even though it can cause severe bleeding.

The court found the UCL and FAL to be content-neutral, because they were laws of general applicability that prohibit false and misleading statements. (This is probably not consistent with Reed, but Reed doesn’t make a ton of sense, especially applied to commercial speech—the underlying conclusion that strict scrutiny doesn’t apply is correct.)

Bonta argued that COLFS’s APR statements were commercial speech, used to advertise the treatment, and that fundraising provided an economic motivation for the APR claims. The court noted that many of the disputed statements appeared on COLFS’s website, and appeared more informational and educational than client-soliciting. Statements about APR in fundraising weren’t as clear as in a previous case, where a “majority” of fundraising communications involved the advertising language at issue, nor did COLFS anywhere claim to compete with abortion providers. However, in exchange for its APR services, COLFS accepts insurance and/or payment from women who have insurance or the means to pay; it also provides free treatment. On a motion to dismiss, COLFS sufficiently pled that its statements weren’t commercial speech.

However, the Free Exercise claim failed. A Free Exercise claim requires that a government entity has “burdened [a plaintiff’s] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’ ” But the UCL and FAL “protect consumers by prohibiting false and misleading advertisements – because of the stated interest in consumer protection, not because of any sort of motivations underlying those advertisements – and as such these laws are neutral.” There were no exceptions to the UCL and FAL that could discriminate against religious conduct, nor did they treat “any comparable secular activity more favorably than religious exercise.” The AG “regularly enforces” these laws against secular entities. Although the UCL and FAL don’t apply to public entities or political speech, that wasn’t required to make them “generally applicable” laws. Instead, laws of general application treat religious and secular speech comparably. “Whether secular and religious activity are ‘comparable’ is evaluated ‘against the asserted government interest that justifies the regulation at issue’ and requires looking at the risks posed, not the reasons for the conduct.” The risks posed by public entity and political speech were different. Public entities are exempted because the state is a “sovereign entity representing the people,” and can have sovereign immunity. Political speech is exempted because “false and misleading political speech is protected while inherently false and misleading commercial speech is not.”

Although COLFS claimed that allowing progesterone to be prescribed for everything except APR treatment was not neutral and generally applicable, “laws do not need to cure every problem or aspect of a problem.” Seems like the correct result for the wrong reason—it might not be false or misleading to proscribe progesterone for something else! Plus, the claim here isn’t against the prescription, it’s against the advertising. The court gets there: “AG Bonta is not banning APR treatment, but is enforcing consumer protection laws against specific advertisements of APR treatment.”

COLFS argued selective enforcement against COLFS, but not Planned Parenthood. But “COLFS’s statements refer to a medical treatment that has only undergone studies for efficacy and safety since 2012, while Planned Parenthood’s statements speak to an FDA-approved medical procedure…. COLFS’s statements about APR treatment and Planned Parenthood’s statements about the abortion pill are not comparable.” There was no indication that Planned Parenthood had violated the UCL or FAL.

COLFS also didn’t have a valid “right to receive information” claim, which is cognizable “only where the listener has a concrete, specific connection to the speaker.” That wasn’t pled here, for statements outside a doctor-patient relationship.

The substantive due process claims for “COLFS’s patients’ rights to procreation, reproductive privacy, and to reject unwanted medical treatment” also failed.

 

Culture of Life Family Services, Inc. v. Bonta, 2025 WL 1687929, No. 3:24-cv-01338-GPC-KSC (S.D. Cal. Jun. 13, 2025)

The court denied a preliminary injunction against AG Bonta.

Continuing the First Amendment analysis: Content-neutral regulations like the FAL and UCL “are generally subject to heightened scrutiny: the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions ‘are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.’” This is weird framing because false advertising does assess content; the court thus turns to the commercial speech inquiry, which is the dispositive issue.

The court credited the AG’s evidence that COLFS uses the APR statements in advertisements that are directed towards, and solicit, women to become potential clients. The statements were “placed in a commercial context and are directed at the providing of services rather than toward an exchange of ideas.” COLFS’s use of the APR statements in its yearly fundraising gala and use of patient stories about APR to solicit donations also provided a “powerful economic motivation.” Plus, even though COLFS argued that it provided “numerous free services,” including “free APR treatment,” it still accepts insurance and payment for APR treatments from women who do have the ability to pay. That was an obvious economic motivation, which COLFS didn’t address.

What about falsity/misleadingness? “Three district courts have struck down state laws that required abortion providers, under threat of criminal sanction, to inform patients about supplemental progesterone therapy in language providers objected to for being untruthful or misleading.” Plus, district courts have split on this situation: “a pro-life organization asking for a preliminary injunction that would disallow an attorney general from pursuing a hypothetical enforcement action against them based on APR-related speech.”

Use of the terms “reverse” and “reversal”: These statements are based on a theory that supplemental progesterone can “outcompete” mifepristone to counteract or “reverse” the effects of mifepristone. Typically, mifepristone acts as a “competitive binder of the progesterone receptor – it binds to progesterone receptors at twice the avidity of progesterone itself, thus blocking endogenous progesterone from acting to support a pregnancy.” But, given high amounts of progesterone in pregnancy, mifepristone is still able to work; adding more progesterone would be like “rain on a swimmer in a pool – the swimmer cannot get more wet.” Rat studies were unhelpful because “there are significant differences between rat and human pregnancies and progesterone’s actions in each” and “[p]rogesterone receptors also vary widely between species in their responsiveness to different molecules...”

A recent placebo-controlled study on nine people was designed to examine the effects of progesterone supplementation, after mifepristone administration, on the endometrium (the inner lining of the uterus where implantation occurs) on nonpregnant persons, but the endometrial lining, uterus, and hormonal milieu of a pregnant person are all “vastly different” from those of a nonpregnant person.

Given that the science was “unclear on how exactly supplemental progesterone reacts with mifepristone,” the court turned to the common understanding of the word “reverse” to determine whether it accurately captures what we do know about the effects of supplemental progesterone. According to dictionary definitions, “reverse” means “to change the direction, order, position, result, etc. of something to its opposite.” Or, “to turn completely about in position or direction” or “to undo or negate the effect of (something, such as a condition or surgical operation).” “Reversal” was the wrong way to describe the evidence here. It was also plausible that “failing to continue taking the second drug in the medication abortion regimen, misoprostol, may result in continued pregnancy in some percentage of women who take mifepristone[.]” (The court notes that there is no agreement on the baseline here. In studies, continuing pregnancy rates ranged from 8% to 46%, depending on the mifepristone regimen used, making it hard to conclude that supplemental progesterone did any better than simply not taking the second medication.) Without better evidence, “it would be at the very least potentially misleading to state that supplemental progesterone can ‘reverse’ an abortion.”

Effectiveness statements: COLFS’s principal’s study purportedly showed that progesterone increases the chances of a pregnancy continuing after taking mifepristone. But some patients were screened by ultrasound for viable pregnancies before joining the study, which biased the data towards pregnancies already likely to continue. It also did not record how far along in her pregnancy each patient was or how much progesterone each patient took – even though mifepristone is less effective at terminating pregnancies as they progress. And there were no controls in the study, despite treatment by 325 different medical providers. Thus, the study didn’t support the statement that APR is “effective” in continuing pregnancies. [Reminder: the AG can go after advertising for lack of substantiation.] “The Court finds that given the lack of robust scientific study on this issue, statements on the effectiveness of APR are potentially misleading.”

Likewise, there wasn’t enough evidence to conclude that the side effects were limited/that APR was safe. “No study offered or used by COLFS appears to track health or safety outcomes for the pregnant individual.” The first and only randomized clinical study to attempt to test the safety and efficacy of APR had to stop because of the serious “safety concerns” after 3 of the 12 participants experienced “severe bleeding” after taking mifepristone without misoprostol. Two of those three received a placebo; the third person had been given progesterone. The “dearth” of evidence made it potentially misleading to say that APR can only cause non-life-threatening side effects.

Birth defects: Again, the evidence was limited and tiny. “Given the lack of scientific evidence on this specific question, the Court finds the statements on birth defects following APR to be potentially false and misleading.”

That APR has a 64-68% success rate was also inherently false and misleading, given the defects in the supporting studies and the lack of clarity about what percentage of COLFS patients would use which methods of administration.

“Thousands of lives saved” statement: This claim was based on the number of pregnant people who used APR and were confirmed by Heartbeat International to remain pregnant at 13 weeks, plus the number of those who started APR (but Heartbeat cannot confirm remained pregnant) multiplied by a 64% success rate. But there was no reason to generalize this statistic to all women who started APR. These were potentially false and misleading.

Statements on non-standard situations (after 72 hours have passed from the ingestion of mifepristone and t after taking the second pill of medication abortion): “From the Court’s review, nothing from the expert declarations submitted by COLFS even purports to support either of these statements.” These statements were inherently misleading.  

Where the statements were inherently misleading, the court’s analysis was done. Where they were only potentially misleading, the court proceeded to apply Central Hudson. (In my view, this is the wrong approach. The potentially misleading standard goes to the scope of a prohibition—if a statement is potentially misleading, the question is whether it can be communicated in a nonmisleading way, in which case the properly presented claim can’t be prohibited entirely. But the particular way in which a defendant is communicating a claim may be actionable/enjoinable even if the state would be required to allow a properly qualified claim. Given the posture of the case, I would expect this to be an issue for the state court.)

Under Central Hudson, the regulation of misleading advertising by medical professionals directly advances a substantial government interest (protecting medical consumers). And it directly advances the asserted government interest and was not more extensive than necessary to serve that interest. “AG Bonta is not aiming to limit the actual practice of APR. And reproductive choices are not apart from consumer choices: women, in exercising their reproductive rights, are also consumers who must be given the correct information to make knowledgeable decisions for themselves.”

 

nonprofits' promotion of "abortion reversal" services was commercial speech

National Institute of Family and Life Advocates v. Bonta, No. 2:24-CV-08468-HDV-(MARx), 2025 WL 1140450 (C.D. Cal. Mar. 6, 2025)

Not sure this one survives appellate review, but we’ll see. NIFLA sued for injunctive relief against California AG Bonta over his public statements and pending consumer protection lawsuit against third parties involving abortion pill reversal (“APR”). APR is “a controversial and unproven practice that attempts to ‘reverse’ a chemical abortion through the administration of high doses of progesterone.” NIFLA alleged that his statements and lawsuit chilled its First Amendment right to advertise the practice using language that the AG considers false and misleading.

The court denied the motion, finding that plaintiffs were engaging in commercial speech when they advertised medical services, for which they had an economic incentive despite being nonprofits. The First Amendment does not protect commercial speech that is inherently misleading. “APR has been tested in the crucible of litigation by three separate federal courts, and in all three cases the safety and efficacy of APR has been found wanting.” The court also conducted its own independent review of the expert submissions, and found “a dearth of credible scientific evidence supporting the APR-related statements upon which Plaintiffs seek injunctive pre-clearance.” The plaintiffs were entitled to their own religious beliefs, but not to their own facts. The court couldn’t find likely success on the merits given the evidence.

Plaintiffs alleged that, as the result of the AG’s statements and enforcement actions, California NIFLA members have canceled or postponed plans to advertise about APR options, or to offer APR[.]” Their main worry was a lawsuit the AG filed in late 2023, which is still pending, against two anti-abortion nonprofits for alleged false and misleading statements about the safety, efficacy, and impact of APR, alleging violation of the consumer protection laws.

Plaintiffs accepted that, as a matter of state law, the false advertising provisions invoked by the AG applied only to commercial speech. That might be dispositive in a future enforcement action. “Preliminarily enjoining the Attorney General from enforcing the state’s laws against speech that the laws do not apply to is unnecessary at best and violative of federalism at worst, as it would require the Court to assume that State officials will improperly enforce state law in the future.”

Identifying commercial speech is fact-driven. “[S]trong support that the speech should be characterized as commercial speech is found where (a) the speech is an advertisement, (b) the speech refers to a particular product, and (c) the speaker has an economic motivation.”

Plaintiffs conceded their intent to advertise, but argued that only advertisements “in the context of commercial transactions” count as commercial. Their speech couldn’t be commercial, they reasoned, because the APR service providers do not charge for APR services. But First Resort, Inc. v. Herrera, 860 F.3d 1263 (9th Cir. 2017), found that a nonprofit’s advertisements to non-paying recipients were “advertisements” in the commercial sense because they were about the provision of medical services rather than the “exchange of ideas.” Such was also the case here.

Likewise, the speech referred to a particular product—a medical treatment—also favoring commercial speech treatment. Finally, one of the benefits that plaintiffs provide to members is advising them on APR, which “is a powerful economic motivation since it is through their members that Plaintiffs raise funds. And Plaintiffs do not dispute that they engage in grant fundraising based, in part, on their APR advocacy and technical support.”

The court distinguished Bernardo v. Planned Parenthood Federation of America, 115 Cal. App. 4th 322 (2004), which found that Planned Parenthood’s statements about the lack of a link between abortion and breast cancer weren’t commercial speech. In that case, though, PP had provided summaries of and citations to research both supporting and challenging the existence of a link, and even a caveat conceding that “abortion does not offer the same protection against breast cancer as a full-term pregnancy.” “Thus, in Bernardo, it was clear that defendant was presenting a position on a scientific debate rather than promoting a particular treatment.”

By contrast, plaintiffs “are encouraging the proliferation of a specific medical intervention.” Indeed, instead of encouraging consumers to contact a “qualified medical provider for personal medical evaluation and services” as in Bernardo, plaintiffs direct the public to contact providers of APR or conduits thereto. For example: “Contact your Medical Director and other physicians and providers in your community to let them know of the successful abortion pill reversal rates...[and] [u]rge these medical professionals to review the research article offer [sic] this protocol as part of their practices.” In Bernardo, PP provided information for “personal education, but nothing on [its sites] constitutes a recommendation for medical care.” “The opposite is true here.”

Because the speech was commercial, Central Hudson applied. There’s no protection for false or misleading commercial speech—except! “Inherently misleading” commercial speech may be banned outright, but if the speech is only “potentially misleading,” it’s protected when the “information may be presented in a way that is not deceptive.” On this record, the statements that plaintiffs wanted to make were inherently false and misleading. In very brief, “reversal” is false because even taken on its own terms, APR is just adding a higher concentration of progesterone, “ostensibly to better the odds that these molecules ‘outcompete’ the mifepristone in binding to the progesterone receptors,” which in theory would then increase the chance of continued pregnancy (if the patient hasn’t already taken the second pill—this only works even in theory if only the first pill has been taken).

Also, there’s no credible scientific evidence that APR is safe. The American College of Obstetricians and Gynecologists and others warn of an increased risk of hemorrhage or serious complications. In one especially telling detail, plaintiffs’ expert opined that progesterone can be used safely based in part on a study finding “no statistically significant difference [in preterm delivery or birth defects] compared to the general population” in cases where mifepristone was unsuccessful in terminating the pregnancy. As the court noted, that study nowhere even asked whether the women were ok.

And there’s no credible scientific evidence that APR is effective.

Even if the statements were only potentially misleading, Central Hudson analysis applied, and California has a substantial interest in protecting consumers from misleading advertising by medical professionals. “While the advertising at issue here is not strictly by medical professionals, it is about medical treatment purportedly carrying the weight of medical authorities—which is the principal concern underpinning the state’s interest.” The state also had the burden to show that the regulation directly advances the asserted government interest, and the fit between interest and regulation must be reasonable/narrowly tailored to achieve the ultimate goal. That test was satisfied: the fit between consumer protection and enforcing against false advertising for a medical procedure was “more than reasonable.” (For what it’s worth, I think this is a weird application of the difference between inherently and potentially misleading, which I understand to mandate, for the latter, a requirement to let the speaker to try again with a more nuanced version of the claim. But given the procedural posture, it may not make any more sense to ask whether there are some pro-APR claims that could be clarified enough to be nonmisleading; I would think plaintiffs would have to identify qualified claims they wanted to make, which they didn’t.

Nor would enforcement against plaintiffs constitute viewpoint discrimination. The government is presumed to be acting unconstitutionally when enforcing laws against speech if “the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the [enforcement].” This requires a showing of both discriminatory purpose and discriminatory effect. But there was insufficient evidence of a “policy plan, or pervasive pattern” of enforcement sufficient to merit an injunction. The AG filed a grand total of one enforcement action on this topic; that case was scheduled for trial this year. Two press releases and a few public appearances on the matter didn’t override 18 months without a second action. “Indeed, perhaps the strongest evidence that Plaintiffs themselves are not concerned about a ‘pervasive pattern’ or ‘plan’ is the fact that this motion for injunctive relief was filed nearly a year after the state court proceedings were initiated.”

Plaintiffs complained that the AG was going after them and not after Planned Parenthood, but what distinguished the two was “the undeniable fact that California’s law enforcement officer views the APR statements as false and injurious to public health (again, correctly in all likelihood based on the submitted evidence). That should be the end of the analysis.” There was no nonenforcement against a pro-choice center making the same inherently false claims.