Retail Digital Network, LLC v. Appelsmith
This case involves a challenge to a California law prohibiting suppliers of alcoholic beverages from paying retailers to advertise their products. In an opinion issued in January 2016, a panel of the Ninth Circuit held that an earlier decision upholding the statute was no longer binding precedent because, in its view, the Supreme Court’s 2011 decision in Sorrell v. IMS Health, Inc., created a new, stringent standard of scrutiny for content-based restrictions on commercial speech. Public Citizen submitted an amicus brief in support of the state’s petition for rehearing, arguing that Sorrell did not abrogate the existing intermediate scrutiny standard of review for laws restricting commercial speech.
In November 2016, the Ninth Circuit granted the state’s petition for rehearing. On June 14, 2017, the en banc Ninth Circuit issued its opinion agreeing with Public Citizen’s position that intermediate scrutiny continues to govern challenges to commercial speech restrictions regardless of whether they are characterized as “content-based,” and holding that California’s law is constitutional because it serves state interests in preserving the independence of alcohol retailers.