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It is unlawful for any person to make any statement, representation, or assertion orally, by public outcry, or proclamation, or in writing, or by any other manner or means whatever concerning the quality, size, weight, condition, source, origin, or any other matter relating to eggs which is false, deceptive, or misleading in any particular.

This sounds like a pretty clear-cut legal restriction of speech. You don't even have to be intentionally lying: just be wrong about eggs in California and you can be charged with... something.

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You are correct that this is a legal restriction on speech.

You are presumably asking about it because the First Amendment says that the government may not abridge the freedom of speech, but it has never been the case that the First Amendment provided absolute protection of that freedom; you probably are already aware that there are several exceptions to the First Amendment. if you tell the president you're going to kill him, or tell a a police officer you'll give him $100 to let you off with a warning, or shout "fire" in a crowded theater, the First Amendment isn't going to save you from criminal charges.

The First Amendment test for laws regulating commercial speech

The courts have long treated commercial speech differently than other types of speech, and it is now well-established that it enjoys less First Amendment protection than political or scientific or artistic expression.

For the First Amendment to protect a commercial communication, the communication “must concern lawful activity and not be misleading.” Central Hudson Gas Elec. v. Public Serv. Comm'n, 447 U.S. 557, (1980). And even if the communication concerns both lawful activity and is not misleading, the government may still regulate the speech if the regulation advances a "substantial interest" and is not "more extensive than necessary" to do so.

To break it down more neatly, we can put it this way: A First Amendment challenge to a law regulating commercial speech will fail unless all three conditions are true:

  1. The law regulates speech that is lawful.
  2. The law regulates speech that is not misleading.
  3. The law is not more burdensome than necessary to advance a substantial governmental interest.

Does § 27637 survive the Central Hudson test?

So in this case, it's pretty easy to see why Food and Agricultural Code § 27637 survives a First Amendment analysis:

  1. Does the law regulate speech that is lawful? Yes, the sale of eggs is lawful. Move on to Step 2.
  2. Does the law regulate speech that is not misleading? No, the law only prohibits speech that is "false, deceptive, or misleading." The First Amendment challenge fails, so Steps 3 and 4 don't matter.

The law is therefore not a First Amendment violation.

bdb484
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TL;DR: It is not unconstitutional to prohibit false statements in commercial speech.


This section is part of the Food and Agrictulture code (FUC) Division 12, Part 4, Chapter 1.

Chapter 1 starts with Article 1, definitions, which includes the section 27501:

Unless the context otherwise requires, the definitions set forth in this article shall govern the construction of this chapter.

and section 27521:

The purposes of this chapter are as follows:

(a) To assure that healthful and wholesome eggs of known quality are sold in this state.

(b) To facilitate the orderly marketing of shell eggs in a uniform manner.

(c) To prevent the marketing of deceptive or mislabeled containers of eggs.

The section 27637 of the chapter must be interpreted in line with this statement of purpose.

With that purpose in mind, the State has a clear reason to restrict false/deceptive/misleading speech when it comes to eggs in the market.

It doesn't restrict speech about eggs in general, only in the context provided by Section 27521. This is not the only legal restriction on false or misleading advertisement and sales practices, there are multitude examples. The Wikipedia provides some references and examples of additional restrictions on commercial speech and relevant precedents.

just be wrong about eggs in California and you can be charged with... something.

If you're making a deceptive/false/misleading marketing statement with regards to eggs, then see section 27581.2: you can be charged with a misdemeanor (under certain conditions, e.g.: repeat offenders), or a civil action (to correct the statement, for example).

littleadv
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