that might otherwise be impermissible in the realm of noncommercial expression.").
As the Court noted in Central Hudson, there are at least two distinguishing features of commercial speech which allow for greater restrictions upon its content. First, because commercial speakers know the market and their product, they are uniquely positioned to assess the accuracy of their advertising claims and the lawfulness of their activity. Second, commercial speech springs solely from economic self-interest and is thus a resilient form of expression not vulnerable to being silenced by imprecise regulation. 447 U.S. at 564 n.6; see also id. at 571 n.13 (commercial speech is such a sturdy brand of expression that traditional prior restraint doctrine may not apply, and system of previewing advertising campaigns may be acceptable given adequate procedural safeguards); Zauderer, 471 U.S. at 668 (Brennan, J., concurring in part and dissenting in part) (a basic justification for allowing punishment for violations of imprecise commercial regulations is that businesspersons can clarify the meaning of arguably vague regulations by consulting with governmental administrators).
For these reasons, the overbreadth doctrine has been found not to apply in the commercial speech context. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350, 381, 53 L. Ed. 2d 810, 97 S. Ct. 2691 (1977) (although overbroad statutes may "chill protected speech," advertising is "linked to commercial well-being" and will therefore not be "crushed by overbroad regulation."). Of course, overbreadth is technically a standing doctrine which permits a party to challenge a law for impinging the First Amendment rights of others who are not before the court. Nonetheless, it is a close cousin to vagueness in that both doctrines recognize that imprecise statutes are of constitutional moment because they discourage people from exercising protected rights. See Grayned v. City of Rockford, 408 U.S. 104, 114, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972) ("overbroad laws, like vague ones, deter privileged activity . . . ."). Bates implies that although the vagueness doctrine may apply to commercial messages, a more relaxed inquiry may be appropriate.
In determining the vagueness standard for laws which do not reach any constitutionally protected conduct, the Court has explained:
The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.
Village of Hoffman Est. v. Flipside, Hoffman Est., 455 U.S. 489, 498 (1982) (footnotes omitted). Although the ordinance at issue in Village of Hoffman, unlike section 17508.5, was a business licensing provision which implicated no commercial speech rights at all, the case does represent an implicit determination by the Supreme Court that in the commercial speech context, a statute need not rise to the level of precision required in noncommercial speech cases.
The relaxed vagueness test articulated in Village of Hoffman, although instructive, is not wholly controlling. The ordinance at issue in Village of Hoffman was punishable by fines of $ 10 to $ 500. Violation of section 17508.5, on the other hand, is a misdemeanor punishable by imprisonment of up to six months and/or a fine not exceeding $ 1,000. Cal. Pen. Code § 19 (West 1988).
It goes without saying that the standard of certainty required in criminal statutes is more demanding than in noncriminal statutes because the consequences of imprecision are more onerous. Village of Hoffman, 455 U.S. at 498 (citing Winters v. People of State of New York, 333 U.S. 507, 515, 92 L. Ed. 840, 68 S. Ct. 665 (1948)). It would be unthinkable to incarcerate someone for violating a law which she could not possibly understand. Barenblatt v. United States, 360 U.S. 109, 137, 3 L. Ed. 2d 1115, 79 S. Ct. 1081 (1959) (Black, J., dissenting).
In light of all this, the court finds that in reviewing a commercial speech prohibition for facial vagueness which imposes criminal sanctions the question is whether the law affords fair notice to a businessperson of ordinary intelligence as to what conduct is illegal. The court now considers the challenged portions of section 17508.5.
The definition for "ozone friendly" is comprehensible on its face. The phrase "or any like term" is not ambiguous; it clearly refers to the modifying phrase "which connotes that stratospheric ozone is not being depleted." Cal. Bus. & Prof. Code § 17508.5(a). Section 17508.5(a) plainly brings within its scope only those advertising claims which suggest that the product does not deplete stratospheric ozone. The court is confident that manufacturers and distributors of ordinary intelligence know whether their product -- through its use or production -- releases any chemical or material into the environment which will "migrate to the stratosphere and cause unnatural and accelerated deterioration of ozone." Id.15
The statute's definition of "recyclable" is more uncertain. The problem is that while section 17508.5(d) defines a consumer good as "recyclable" if it can be "conveniently recycled" in California counties with more than 300,000 people, the statute offers no guidance as to what recycling programs satisfy the "conveniently recycled" requirement. Section 17508.5(d) refers to section 40180 of the Public Resources Code which unambiguously defines "recycled."
However, an equally lucid explication of "conveniently" is wanting. Nor is there any legislative history extant to provide the court with guidance.
Does a manufacturer or distributor incur criminal penalties for labeling a product as "recyclable" if the recycling center which handles such products is located in a remote part of the county, or, if it is only open one day a month? This may be a fanciful example, but in light of the legislature's failure to define "conveniently," "where does fanciful possibility end and intended coverage begin?" Baggett v. Bullitt, 377 U.S. 360, 373, 12 L. Ed. 2d 377, 84 S. Ct. 1316 (1964). Did the legislature mean to establish a requirement that a substantial majority of consumers must have access to recycling programs that collect the material in question? Or can a product can be labeled recyclable as long as at least one facility exists in the county to collect the relevant materials? That questions of this nature so readily come to mind means that it is not sufficiently clear to a manufacturer or distributor of ordinary intelligence, what exactly the statute prohibits. Due to the potential for criminal sanctions, including incarceration, the absence of any standard for "conveniently recycled" wrecks this portion of section 17508.5 on the shoals of vagueness. Although the legislature "needs leeway" to advance its goals in the commercial speech arena, Fox, 109 S. Ct. at 3035, in this instance the constitutional requirement of definiteness has not been met.
It is an elementary principle of statutory construction that "the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 86 L. Ed. 2d 394, 105 S. Ct. 2794 (1985) (quoting Allen v. Louisiana, 103 U.S. 80, 83-84, 26 L. Ed. 318 (1881)). Under California law, the ability to sever an invalid portion of a statute depends on "whether the remainder is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute or constitutes a completely operative expression of the legislative intent and [is] not so connected with the rest of the statute as to be inseparable." Metromedia, Inc. v. City of San Diego, 32 Cal. 3d 180, 190, 185 Cal. Rptr. 260, 649 P.2d 902 (1982) (citations omitted).
There can be no dispute that the California Legislature would have passed AB 3994 had they known that the definition of "recyclable" was invalid. Furthermore, the remainder of section 17508.5 retains its effectiveness as a constitutionally permissible regulation on commercial speech. Accordingly, the court holds that subsection (d) of the statute is invalid, but leaves the remainder of section 17508.5 intact.
The California legislature has responded to the "green marketing" phenomenon by mandating statutory definitions for commonly used environmental advertising claims. Plaintiffs have made this facial challenge on First Amendment and vagueness grounds. This court holds that section 17508.5 permissibly restricts plaintiffs' commercial speech and, except for subsection (d), the statute is not unconstitutionally vague on its face.
Accordingly, the court GRANTS partial summary judgment for plaintiff solely with respect to subsection (d) of section 17508.5 of the California Business and Professions Code which is stricken as unconstitutionally vague. In all other respects, plaintiffs' summary judgment motion is DENIED and the court, sua sponte, GRANTS partial summary judgment for defendant.
IT IS SO ORDERED.
Dated: DEC 23 1992
MARILYN HALL PATEL
United States District Judge
ENVIRONMENTAL REPRESENTATIONS RELATING TO CONSUMER GOODS
It is unlawful for any person to represent that any consumer good which it manufactures or distributes is "ozone friendly," or any like term which connotes that stratospheric ozone is not being depleted, "biodegradable," "photodegradable," "recyclable, " or "recycled" unless that consumer good meets the definitions contained in this section, or meets definitions established in trade rules adopted by the Federal Trade Commission. For the purposes of this section, the following words have the following meanings:
(a) "Ozone friendly," or any like term which connotes that stratospheric ozone is not being depleted, means that any chemical or material released into the environment as a result of the use or production of a product, will not migrate to the stratosphere and cause unnatural and accelerated deterioration of ozone.
(b) "Biodegradable" means that a material has the proven capability to decompose in the most common environment where the material is disposed within one year through natural biological processes into nontoxic carbonaceous soil, water, or carbon dioxide.
(c) "Photodegradable" means that a material has the proven capability to decompose in the most common environment where the material is disposed within one year through physical processes, such as exposure to heat and light, into nontoxic carbonaceous soil, water, or carbon dioxide.
(d) "Recyclable" means that an article can be conveniently recycled, as defined in Section 40180 of the Public Resources Code, in every county in California with a population over 300,000 persons. For the purposes of this subdivision, "conveniently recycled" shall not mean that a consumer good may be recycled in a convenience zone as defined in Section 14509.4 of the Public Resource Code.
(e) "Recycled" means that an article's contents contain at least 10 percent, by weight postconsumer material, as defined in subdivision (b) of Section 12200 of the Public Contract Code.
(f) "Consumer Good" means any article which is used or brought for use primarily for personal, family, or household purposes.
(g) For the purposes of this Section, a wholesaler or retailer who does not initiate a representation by advertising or by placing the representation on a package shall not be deemed to have made the representation.
Cal. Bus. & Prof. Code § 17508.5 (West 1991).