ALL ONE GOD FAITH, INC., Plaintiff and Appellant, v. ORGANIC AND SUSTAINABLE INDUSTRY STANDARDS, INC., Defendant and Appellant.
No. A123009
First Dist., Div. Five.
Apr. 13, 2010.
1186
Farella Braun & Martell, John L. Cooper and Morgan T. Jackson for Plaintiff and Appellant.
First Amendment Project, David Greene and James R. Wheaton for Defendant and Appellant.
OPINION
BRUINIERS, J.—The federal government imposes mandatory standards governing the marketing of “organic” food and agricultural products, but provides only voluntary and permissive criteria for “organic” personal care products, such as soaps and lotions. (
I. FACTUAL AND PROCEDURAL BACKGROUND3
A. Dr. Bronner‘s First Amended Complaint
Dr. Bronner filed suit in the San Francisco Superior Court seeking injunctive relief against several of its competitors and against OASIS under California‘s unfair competition law. (
As the FAC explains, “[t]he NOP criteria only govern personal care products that voluntarily represent or imply that they meet the NOP criteria or carry the USDA organic seal. The NOP regulations do not apply to personal
Dr. Bronner alleges that OASIS is a commercial trade association and that its members include many of the other named defendants, who sell competing personal care products. Dr. Bronner alleges that OASIS was designed to represent and promote the commercial goals of its member companies in their efforts to sell “organic” personal care products. According to Dr. Bronner‘s FAC, “[t]he primary immediate goal of OASIS has been to issue an industry standard for ‘organic’ personal care products, and to promote the commercial and sales goals of its members in the marketplace seeking to sell body care products to consumers seeking to purchase organic products. In doing so, OASIS acts as the agent of its trade association members as to whose products OASIS promotes through its purported certifications.”
Dr. Bronner contends that OASIS issued a new standard that would allow a product to be labeled as “Organic” even if containing cleansing agents made from nonorganic material that has been hydrogenated and/or sulfated, and preserved with synthetic petrochemicals. According to the allegations of the FAC, the development of the OASIS standard was “promoted principally by Defendant [Estée] Lauder[, Inc.,] but . . . was also supported by other Defendants including Hain Celestial [Group, Inc.,] and Cosway [Company, Inc.]”6 Dr. Bronner alleges that it has been informed that Estée Lauder “plans to imminently label its products as certified ‘Organic’ in accordance with the [OASIS] standard . . . .”7 Dr. Bronner seeks injunctive relief, claiming that “[u]nless OASIS is enjoined from such deceptive certification of products, and [Estée] Lauder is enjoined from marketing such products, Dr. Bronner‘s
B. OASIS‘s Motion to Strike and Supporting Declarations
OASIS moved to strike Dr. Bronner‘s third cause of action pursuant to
OASIS is a mutual benefit trade association, organized under
The declaration further provides that, for several months before the motion to strike was filed, OASIS had been working to develop an “OASIS Organic” standard that would provide a definition of “organic” specific to beauty and personal care products. At the time the motion to strike was filed, OASIS had not yet completed its formulation of the standard, but had released a series of draft standards to the industry and public, via its Web site, for comment. OASIS had also received approximately 50 inquiries from members of the public regarding its draft standards. Once the standard is finalized, those of OASIS‘s members “whose products meet the ‘OASIS Organic’ standard, as determined by [a] third party certification agent, may then choose to advertise their products as meeting the ‘OASIS Organic’ standard [by] display[ing] the ‘OASIS Organic’ certification mark on the product.”9 The “OASIS Organic” seal appears as a circle, with the word “oasis” inside the circle, and the word “organic” appearing in larger font below the circle. If an OASIS member chooses to so advertise, it must “indicate that the ‘OASIS Organic’ standard was employed, display the ‘OASIS Organic’ certification mark on the product, and direct [its] consumers to the details of the standard.” OASIS intends to publish the final standard to the general public so that the public has access to what “OASIS Organic” means.
At the time the motion to strike was filed, OASIS had not yet authorized any entity to use the “OASIS Organic” label and no product bearing the “OASIS Organic” seal was on the market, or likely to be on the market for at least several months. Timmons declares that OASIS itself does not currently certify, and does not plan to certify, any products. OASIS only intends to set
OASIS also submitted, in support of its motion to strike, three newspaper articles, dating from the 1970‘s, on the topics of “natural” and “organic” food and cosmetics.
C. Dr. Bronner‘s Opposition to the Motion to Strike
Dr. Bronner opposed the motion to strike, arguing that it had not challenged speech “in connection with a public issue or an issue of public interest,” as required by
The parties stipulated that the trial court, in deciding the motion, could consider the application, obtained from OASIS‘s Web site, by which one applies to become a member of OASIS. The membership application provides: “Welcome to OASIS, an organization whose purpose is to support organic and sustainable Health & Beauty consumer goods. OASIS meets the unprecedented consumer demand for reliable production standards for companies pursuing a greater share of the Organic and Sustainable Market. . . . [¶] . . . [¶] Organic And Sustainable Industry Standards — OASIS — was formed by a group of concerned trade professionals, and we are pleased to invite you to join today. Join as a voting member if you plan on certifying a Health and Beauty product or ingredients made using organic raw materials. Join as a supporting member if you work in a supporting role in the production of sustainable Health and Beauty products.” (Boldface omitted.) The application describes OASIS‘s mission: “OASIS is dedicated to providing verifiable standards that support and promote organic and sustainable
The application also provides: “The By Laws of OASIS define that ‘voting’ members must either be in the process to become certified for a product or have been certified.” Voting membership fees range from $300 to $5,000. The suggested membership fee for a supporting member is $100.
D. The Trial Court Ruling and Current Appeal
By trial court order, not contained in the record but acknowledged by the parties, briefing and argument on the motion to strike was bifurcated, with the first portion of the hearing limited to the threshold question of whether OASIS‘s alleged conduct constituted an “act in furtherance of a person‘s right of petition or free speech under the United States or California Constitution in connection with a public issue.”
On October 8, 2008, the court denied OASIS‘s motion to strike in an order stating only that the motion was denied (October 8 Order). OASIS filed a timely notice of appeal from the October 8 Order. Dr. Bronner filed a motion to dismiss the appeal, asserting that the trial court could have based its denial of the motion to strike on the commercial speech exemption contained in
In response, the trial court filed an amended order (Amended Order), which clarifies that the motion to strike was denied under
Thereafter, we denied Dr. Bronner‘s motion to dismiss OASIS‘s appeal. Dr. Bronner also filed a timely cross-appeal from the Amended Order. OASIS moved to dismiss Dr. Bronner‘s cross-appeal on the grounds that Dr. Bronner was not aggrieved by the Amended Order. We denied the motion.12
II. DISCUSSION
A. The Anti-SLAPP Statute
The Legislature adopted the anti-SLAPP statute in 1992, finding that “it is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through
The Supreme Court has “summarize[d] a court‘s task in ruling on an anti-SLAPP motion to strike as follows.
The question of whether an anti-SLAPP motion to strike should have been granted is reviewed independently. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1283 [74 Cal.Rptr.3d 873]; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 839 [36 Cal.Rptr.3d 385]; Consumer Justice Center v. Trimedica International, Inc., supra, 107 Cal.App.4th at p. 599 (Trimedica).) Contrary to Dr. Bronner‘s suggestion, the trial court does not make factual findings in ruling on an anti-SLAPP motion. (See HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [“court considers the pleadings and evidence submitted by both sides, but does not weigh credibility or compare the weight of the evidence“].) Accordingly, we independently review “whether the anti-SLAPP statute applies to the challenged claim. [Citation.] Furthermore, we apply our independent judgment to determine whether [plaintiff‘s] causes of action arose from acts by [a defendant] in furtherance of [defendant‘s] right of petition or free speech in connection with a public issue. [Citation.]” (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645 [24 Cal.Rptr.3d 619].)
B. OASIS Has Not Met Its Burden of Showing That the Challenged Cause of Action Arises from Protected Activity Under the Anti-SLAPP Statute.
1. OASIS‘s certification activities are not in furtherance of its speech in connection with a public issue or issue of public interest.
The trial court here addressed only the first step of the two-step Equilon process, and denied the motion on the basis that OASIS had failed to show that it had engaged in protected activity. We likewise review this threshold question. We consider whether the trial court correctly concluded that Dr. Bronner‘s cause of action does not arise from acts in furtherance of OASIS‘s constitutional right of petition or free speech in connection with a public issue, as required by
We believe the trial court was correct. While the act of formulating a proposed industry “organic” standard may constitute protected activity, we find that the certification of products which Dr. Bronner seeks to enjoin in its third cause of action is not. Contrary to the conclusion reached by the dissent, we hold that OASIS‘s certification activities do not constitute “conduct in furtherance” of OASIS‘s formulation of the standard. (
“The anti-SLAPP statute‘s definitional focus is not the form of the plaintiff‘s cause of action but, rather, the defendant‘s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [124 Cal.Rptr.2d 530, 52 P.3d 703]; accord, Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679 [105 Cal.Rptr.3d 98] (Stewart).) “But the mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76–77 [124 Cal.Rptr.2d 519, 52 P.3d 695].) Nor does the fact “[t]hat a cause of action arguably may have been triggered by protected activity” necessarily mean that it arises from such activity. (Id. at p. 78.) Rather, “[t]he trial court must instead focus on the substance of the plaintiff‘s lawsuit in analyzing the first prong of a special motion to strike. [Citations.]” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 669–670 [35 Cal.Rptr.3d 31].) “In the anti-SLAPP context, the critical point is whether the plaintiff‘s cause of action itself was based on an act in furtherance of the defendant‘s right of petition or free speech. [Citations.]” (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 78.)
“[T]he ‘arising from’ requirement is not always easily met. [Citations.] The only means specified in section 425.16 by which a moving defendant can satisfy the requirement is to demonstrate that the defendant‘s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e), defining subdivision (b)‘s phrase, ‘act in furtherance of a person‘s right of petition or free speech under the United States or California Constitution in connection with a public issue.’ [Citation.]” (Equilon, supra, 29 Cal.4th at p. 66.)
OASIS argues that
The court in Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534 [33 Cal.Rptr.3d 145], noted that
OASIS, in its opening brief, contends that it has been sued for its “opinion as to what makes a personal care product ‘organic’ ” or “the articulation and dissemination of the [‘OASIS Organic‘] standard.” Accordingly, OASIS argues that Dr. Bronner‘s third cause of action attacks speech in connection with a public issue because “the speech was made during the course of an active public debate on the issue, a debate joined by governmental, commercial and consumer interests; the resolution of the issue will affect large numbers of people beyond the direct participants; the speech was developed with public input; the issue is neither broad nor amorphous and is the very conduct for which OASIS is being sued.”
But, contrary to OASIS‘s assertion, Dr. Bronner‘s claims do not arise out of OASIS‘s articulation of the “OASIS Organic” standard in the abstract. Rather, Dr. Bronner‘s claims are based on the fact that OASIS will authorize its members, whose products meet the standard, to use the “OASIS Organic” seal on their products in the marketplace. In fact, OASIS will require those members who choose to advertise their products as meeting the “OASIS Organic” standard to display the “OASIS Organic” seal on their products. Dr. Bronner specifically alleges that it will be injured because “many consumers will be misled by the certification of products by the OASIS trade association as ‘Organic’ to purchase such products rather than Dr. Bronner‘s soap products.”13 (Italics added.) Accordingly, Dr. Bronner seeks to enjoin OASIS from certifying such products that meet the “OASIS Organic” standard, but not the NOP standard.
As we have indicated, while OASIS‘s articulation and dissemination of a standard regarding what makes a personal care product “organic” may constitute an exercise of its right of free speech on a matter of public concern, we do not agree that OASIS‘s certification of commercial products—the activities that Dr. Bronner seeks to enjoin—are in furtherance of that speech.
Our dissenting colleague relies on Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156 [1 Cal.Rptr.3d 536] (Lieberman). As we explain, while the Lieberman court‘s explication of the statutory term “in furtherance of” may be generally useful to an analysis of
Here, unlike the conduct at issue in Lieberman, the articulation of the OASIS standard will necessarily be complete before OASIS certifies any member product. OASIS, and our dissenting colleague, fail to show how the application of an “OASIS Organic” seal on a particular product helps to advance or foster a debate that will have already occurred on the meaning of “organic” as used in the “OASIS Organic” seal, or that it will in some fashion
Thus, we reject OASIS‘s claim that by certifying a member product to use its seal, it speaks with an educational purpose or contributes to an ongoing public debate about organic standards. It is not necessary for OASIS to certify individual products and authorize members to use its “OASIS Organic” seal on products in order for OASIS to express its general opinion about what constitutes an “organic” personal care product. Because that goal will otherwise be achieved by the articulation of the standard, we conclude that the challenged speech is not in furtherance of OASIS‘s exercise of free speech in connection with a public issue. (See Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615 [129 Cal.Rptr.2d 546] [although plaintiff‘s “action was an attack on the process of [judicial candidate] evaluations, that process was inextricably intertwined with and part and parcel of the evaluations,” which were undisputedly protected speech].)
2. OASIS‘s commercial speech is not protected activity on an issue of public interest.
Dr. Bronner alleges that OASIS, by authorizing its members to use the “OASIS Organic” seal on products in the marketplace, will mislead consumers with respect to the products’ ingredients. OASIS‘s own membership application provides: “Welcome to OASIS, an organization whose purpose is to support organic and sustainable Health & Beauty consumer goods. OASIS meets the unprecedented consumer demand for reliable production standards for companies pursuing a greater share of the Organic and Sustainable Market.” (Boldface omitted.) It also states: “The OASIS seal provides assurance to the consumer of credible value for organic and sustainable claims on OASIS products.” (Italics omitted.) In fact, OASIS concedes that its speech is commercial speech, under the test announced in Kasky, and that it “seeks to promote its members[‘] general business interest” through the “OASIS Organic” seal.17
In Kasky v. Nike, Inc., supra, 27 Cal.4th 939 (Kasky), Nike and its officers and directors, in response to public criticism and to maintain and increase
The majority observed that, under United States Supreme Court precedent, “commercial speech that is false or misleading is not entitled to First Amendment protection and “may be prohibited entirely.” [Citations.]” (Kasky, supra, 27 Cal.4th at p. 953.) The majority then enumerated the reasons for the distinction between commercial and noncommercial speech: “First, “[t]he truth of commercial speech . . . may be more easily verifiable by its disseminator than . . . news reporting or political commentary, in that ordinarily the advertiser seeks to disseminate information about a specific product or service that he himself provides and presumably knows more about than anyone else.” [Citations.] [[] Second, commercial speech is hardier than noncommercial speech in the sense that commercial speakers, because they act from a profit motive, are less likely to experience a chilling effect from speech regulation. [Citations.] [[] Third, governmental authority to regulate commercial transactions to prevent commercial harms justifies a power to regulate speech that is “linked inextricably” to those transactions.” [Citations.]” (Id. at pp. 954-955, citation and paragraph format omissions added.)
In distinguishing commercial speech from noncommercial speech, the Supreme Court explained that courts must consider three elements: “the speaker, the intended audience, and the content of the message. [[] In typical commercial speech cases, the speaker is likely to be someone engaged in commerce—that is, generally, the production, distribution, or sale of goods or services—or someone acting on behalf of a person so engaged, and the intended audience is likely to be actual or potential buyers or customers of the speaker‘s goods or services, or persons acting for actual or potential buyers or customers, or persons (such as reporters or reviewers) likely to repeat the message to or otherwise influence actual or potential buyers or customers. [[] . . . [[] Finally, the factual content of the message should be commercial in character. In the context of regulation of false or misleading advertising, this typically means that the speech consists of representations of
Kasky did not involve the anti-SLAPP statute. However, several recent cases have concluded that a manufacturer‘s advertising statements about a commercial product are not subject to the protection of
In Trimedica, a consumer advocacy group brought an action for false advertising and consumer fraud against a supplement manufacturer who claimed its product, Grobust, offered ““The All-Natural Way To A Fuller, More Beautiful Bust!“” (Trimedica, supra, 107 Cal.App.4th at pp. 598-599.) The defendant filed a special motion to strike, pursuant to
Nagel, supra, 109 Cal.App.4th 39, presented a scenario analogous to the circumstances presented here. In Nagel, the plaintiff sued a supplement manufacturer, and the company whose franchisees sold the product to consumers, for their marketing of a supplement containing ma huang extract. (Id. at pp. 42-43Ibid.) Specifically, the plaintiff contended that the ephedrine in the product was not “standardized” as claimed by the defendants, at least not as the word was popularly understood. (Id. at p. 44section 425.16, their advertising claims were protected speech on a matter of public interest. (109 Cal.App.4th at p. 44.) The court considered whether subdivision (e)(4) of section 425.16 applied. (109 Cal.App.4th at p. 45 & fn. 1.) The court noted that the list of ingredients was “commercial speech only,” which is entitled to less protection than other constitutionally safeguarded forms of expression. (Id. at p. 46.)
Turning to the public interest requirement, the court observed: “while matters of health and weight management are undeniably of interest to the public, it does not necessarily follow that all lists of ingredients on labels of food products or on the manufacturers’ Web sites are fully protected from legal challenges by virtue of
The above authority makes clear that the mere fact that a large number of people may be affected by advertising does not, standing alone, satisfy the public interest requirement. (Nagel, supra, 109 Cal.App.4th at p. 50; DuPont, supra, 78 Cal.App.4th at p. 567.) Rather, the inquiry is whether the unprotected advertising speech is inextricably intertwined with protected speech informing the consuming public and furthering political debate on a matter of public interest. (Nagel, supra, 109 Cal.App.4th at p. 50.) In this case, the use of the “OASIS Organic” seal on member products is not activity directed to public discussion of organic standards in general, but is only speech about the contents and quality of the product. As discussed above, it is not intertwined with speech about, or contributing to the debate on, the merits of a particular definition of “organic.”19
To the extent that DuPont can be read to hold that commercial advertisements, for a product treating a life-threatening medical condition and which affects a large number of people, could alone satisfy the public interest requirement, we are not presented with such a circumstance.20 (See DuPont, supra, 78 Cal.App.4th at p. 567.) Although a large number of consumers may encounter the “OASIS Organic” seal, the personal care products at issue are not intended to remedy life-threatening conditions and the “seriousness of the conditions treated” would hardly meet the DuPont criteria. (Ibid.)
Nor are we persuaded by OASIS‘s attempt to distinguish Nagel, Trimedica, and Scott on the basis that they involved speech by a product manufacturer about its own product, and that it is not such a manufacturer. OASIS is correct that the Third District Court of Appeal in Scott, supra, 115 Cal.App.4th 404, concluded that “commercial speech about the safety of a product by the manufacturer of that product for the purposes of the sale of the product does not constitute an issue of public interest for purposes of
The fact that the “OASIS Organic” seal will be placed on some member products, rather than its own products, does not automatically, as OASIS asserts, transform its certification activities into “a statement about the larger issue of “organic” health and beauty care products.” “The nature of the communication is not changed when a group of sellers joins in advertising their common product.” (National Com‘n on Egg Nutrition v. F. T. C. (7th Cir. 1977) 570 F.2d 157, 163 [discussing whether statements by trade association formed by members of egg industry were commercial speech]; see also Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 66, fn. 13 [77 L.Ed.2d 469, 103 S.Ct. 2875].) As noted above, OASIS concedes that its speech is commercial speech and that it “seeks to promote its members[‘] general business interest” through the “OASIS Organic” seal. Although OASIS disavows any intent to endorse “any particular product” in the future, it concedes that only the products of its paying members, who meet the standard, may advertise with the “OASIS Organic” seal. And, OASIS concedes that “only those [members] who plan to use the seal are eligible to become voting members of OASIS . . . .” (Italics omitted.) Thus, we are not talking about true third party endorsement or criticism, in the nature of consumer protection information, as OASIS suggests in its reply brief.21 Since the certification activities of OASIS in question here are clearly designed to facilitate commerce in the products bearing its seal, it has presented no compelling reason to distinguish this case from Nagel, Trimedica, or Scott.
Because the “issue of public interest” requirement is not met here, the trial court correctly concluded that
C. Section 425.17 Does Not Provide an Alternate Basis for Denial of the Motion to Strike.
In its cross-appeal, Dr. Bronner argues the trial court erred in concluding that the statutory “commercial activity” exception in the anti-SLAPP legislation (
“Section 425.16 does not apply to any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services, including, but not limited to, insurance, securities, or financial instruments, arising from any statement or conduct by that person if both of the following conditions exist: [[] (1) The statement or conduct consists of representations of fact about that person‘s or a business competitor‘s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person‘s goods or services, or the statement or conduct was made in the course of delivering the person‘s goods or services. [[] (2) The intended audience is an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation, except where the statement or conduct was made by a telephone corporation in the course of a proceeding before the California Public Utilities Commission and is the subject of a lawsuit brought by a competitor, notwithstanding that the conduct or statement concerns an important public issue.” (Italics added.)
We review the question of whether
1. Plain language of section 425.17, subdivision (c)
The parties disagree about whether OASIS is “a person primarily engaged in the business of selling or leasing goods or services” under
Dr. Bronner‘s position would require that we read
The Legislature clearly understood how to broaden the application of
Accordingly, we agree with the trial court‘s conclusion that “OASIS does not fall under
2. Legislative history
When “legislative intent is expressed in unambiguous terms, we must treat the statutory language as conclusive; ‘no resort to extrinsic aids is necessary or proper.’ [Citation.]” (Equilon, supra, 29 Cal.4th at p. 61.) Here, however, the legislative history of
The legislative history shows that the Legislature explicitly considered and rejected an exception that would have applied to an entity merely “involved in the stream of commerce.” (Sen. Amend. to Sen. Bill No. 1651 (2001-2002 Reg. Sess.) May 21, 2002.) In 2003,
These earlier bills originally proposed language that differs significantly from that ultimately enacted by Senate Bill No. 515 (2003-2004 Reg. Sess.). 27
We also reject Dr. Bronner‘s argument that the legislative history makes clear that the Legislature intended to exclude from the anti-SLAPP procedure all causes of action targeting commercial speech, as defined by Kasky, supra, 27 Cal.4th 939. When Senate Bill No. 789 (2001-2002 Reg. Sess.) was amended, on August 26, 2002, the relevant language now found in
The legislative history quotes from Kasky: ““[W]hen a court must decide whether particular speech may be subjected to laws aimed at preventing false advertising or other forms of commercial deception, categorizing a particular statement as commercial or noncommercial speech requires consideration of three elements: the speaker, the intended audience, and the content of the message. [[] In typical commercial speech cases, the speaker is likely to be someone engaged in commerce—that is, generally, the production, distribution, or sale of goods or services—or someone acting on behalf of a person so engaged, and the intended audience is likely to be actual or potential buyers or customers of the speaker‘s goods or services, or persons acting for actual or potential buyers or customers, or persons (such as reporters or reviewers) likely to repeat the message to or otherwise influence actual or
After citation to Kasky, the analysis continues: “Rather than carve out specific statutory causes of action, as the bill once proposed, and in response to concerns raised about the scope of the prior language, the author has amended the bill to closely track Kasky‘s guidelines on commercial speech, focusing on the speaker, content of the message, and the intended audience. [[] Specifically, the bill would exempt from the anti-SLAPP motion only causes of action where the speaker is a person primarily engaged in the business of selling or leasing goods or service. The content of the covered speech under the bill is representations of fact about that person‘s or a business competitor‘s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person‘s goods or services, or the statement or conduct was made in the course of delivering the person‘s goods or services. Finally, the bill also considers the intended-audience element of the Kasky test. Under the bill, the intended audience must be an actual or potential buyer or customer, or a person likely to repeat the statement to or otherwise influence an actual or potential buyer or customer, or the statement or conduct arose out of or within the context of a regulatory approval process, proceeding, or investigation.” (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 789 (2001-2002 Reg. Sess.) as amended Aug. 26, 2002, pp. 8-9, italics added.) An almost identical discussion exists in the legislative history of Senate Bill No. 515 (2003-2004 Reg. Sess.). (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, pp. 10-11.)
Rather than suggesting an intent to adopt the Kasky test in toto, it appears that the Legislature only intended to “closely track” Kasky‘s guidelines. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 789 (2001-2002
Other aspects of the legislative history of Senate Bill No. 515 (2003-2004 Reg. Sess.) are consistent with our view that only a subset of commercial speech was intended to be covered by
Our conclusion is not inconsistent with the Second Appellate District‘s recent statement that “the legislative history of the commercial speech exemption to the anti-SLAPP statute confirms the Legislature‘s intent to except from anti-SLAPP coverage disputes that are purely commercial.” (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 491 [72 Cal.Rptr.3d 847]
3. No published authority conflicts with our interpretation
Dr. Bronner has not brought to our attention any reported case, interpreting
For the foregoing reasons, we conclude that OASIS is not “a person primarily engaged in the business of selling or leasing goods or services,” and
III. DISPOSITION
The order denying the special motion to strike is affirmed. Dr. Bronner‘s cross-appeal is denied. Dr. Bronner is to recover its costs on appeal.
Jones, P. J., concurred.
SIMONS, J., Dissenting.—The trial court rejected the motion to strike (
I. Formulation of the OASIS Organic Standard Is Speech in Connection with a Public Issue
As the majority postulates, OASIS‘s effort to formulate a definition of “organic” for personal care products is distinct from the certification process. (Maj. opn., ante, at p. 1200.) That process will occur following determination of the “OASIS organic standard” and will entail OASIS authorizing a third party certification agent to determine if a particular product satisfies the OASIS organic standard; if so, that product may be imprinted with the “OASIS Organic” seal. Because OASIS contends its role in the certification process is “conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest”3 (
There is little dispute that the formulation of a standard for organic personal care products is protected speech. The majority appears to acknowledge this (maj. opn., ante, at pp. 1200, 1202-1203, 1205) and respondent 1 2 3
Whether the NOP standards are wise or should be further refined and whether they should remain voluntary are matters of public interest. By formulating an alternate standard, OASIS becomes a party to this controversy. In developing the standard, OASIS has released on its Web site to the public and the personal care industry more than a dozen draft standards, and has received “approximately 50 inquiries” from members of the public regarding the draft standards. The OASIS organic standard may influence not only the definition of organic as applied to personal care products, but it also may play a role in the federal government‘s decision whether to leave the NOP criteria voluntary or to encourage the development of further nongovernmental standards for organic personal care products. The formulation of the OASIS organic standard thus constitutes an exercise of OASIS‘s right to free speech in connection with an issue of public interest, as required by
II. OASIS‘s Role in the Certification Process Is Protected Conduct
After the OASIS organic standard is finalized,6 OASIS will authorize third party certification agents to determine if products comply with the standard. If so, OASIS will authorize the products’ manufacturers to affix the OASIS Organic seal to their products. Dr. Bronner seeks to enjoin OASIS‘s role in this certification process.7 After consideration of the purpose of certification marks, I address why OASIS‘s role in certifying a product should be protected under the first prong of the anti-SLAPP statute.
A. The Purpose of Certification Marks
A “certification mark” is “any word, name, symbol, or device, or any combination thereof—[[] (1) used by a person other than its owner, or [[] (2) which its owner has a bona fide intention to permit a person other than the owner to use in commerce and files an application to register on the principal register established by this chapter, [[] to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person‘s goods or services or that the work or labor on the goods or services was performed by members of a union or other organization.” (
The
Certification marks play an important role in a competitive market by providing crucial product information. As explained in section 1306.01(b) of the United States Department of Commerce, Patent and Trademark Office, Trademark Manual of Examining Procedure (6th ed., Oct. 2009) (TMEP),9 “[t]he message conveyed by a certification mark is that the goods or services have been examined, tested, inspected, or in some way checked by a person who is not their producer, using methods determined by the certifier/owner. The placing of the mark on goods . . . thus constitutes a certification by someone other than the producer that the prescribed characteristics or qualifications of the certifier for those goods . . . have been met.” The certification mark serves to assure consumers that the products bearing the mark possess some characteristic common to the goods and services of many sellers or manufacturers. (See TMEP, § 1306.01(b) [“The purpose of a certification mark is to inform purchasers that the goods or services of a person possess certain characteristics or meet certain qualifications or standards established by another person.“].) Consumers seek out this information “for example, by . . . relying upon the Good Housekeeping and Underwriters Laboratories seals of approval. This information saves buyers the trouble of investigating products themselves and the risk of trying untested products.” (Consolidated Metal Prod. v. Amer. Petro. Institute (5th Cir. 1988) 846 F.2d 284, 296; see also State of Idaho Potato v. G & T Terminal Pack. (9th Cir. 2005) 425 F.3d 708, 716-717 [the Lanham Act‘s limitations on the use of certification marks “appear designed to promote free competition in the market for certified products” (fn. omitted)].)10
B. Certification Marks Provide Consumer Protection Information, Entitling Them to Protection
The parties have not cited any cases, and I have found none, that discuss whether authorizing the use of a certification mark is protected conduct under
Unlike the negative messages protected in Carver and Wilbanks, a certification mark conveys a positive message: a party independent of the producer certifies that the product meets a particular standard. (See TMEP, supra, § 1306.01(b) [stating that the “message conveyed” by a mark is that the goods have been inspected and determined to satisfy the certifier‘s standard of quality].) This message should be protected by the anti-SLAPP statute. The majority concludes consumers do not care about the standards underlying product certifications. (Maj. opn., ante, at pp. 1204-1205, fn. 16.) But this argument proves too much. It challenges the underlying rationale for marks certifying quality: informing consumers that the product has certain characteristics. (TMEP, supra, § 1306.01(b).) The facts of this case underline the majority‘s error. If consumers interested in purchasing an organic soap see one product carrying a government-sanctioned USDA organic seal and a competitor‘s product carrying an OASIS Organic seal, why should this court assume consumers would have no interest in ascertaining what standard the OASIS Organic seal represents?
C. The Certification Process Enhances the Current Debate Surrounding the Formulation of the OASIS Organic Standard and Promotes the Standard Itself, Entitling OASIS to Protection
The OASIS Organic seal is deserving of the protection of the anti-SLAPP statute for another reason as well. In this case, the organic standard of quality represented by the OASIS mark is a matter of public interest, OASIS‘s formulation of the standard is an exercise of its free speech rights, and OASIS‘s role in the certification process is the conduct underlying Dr. Bronner‘s action against OASIS. Under
Although the anti-SLAPP statute does not define “in furtherance,” the Second Appellate District in Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166 [1 Cal.Rptr.3d 536] (Lieberman), adopted a dictionary definition, stating, “Furtherance means helping to advance, assisting.” (First italics omitted.) This expansive definition is consistent with the requirement
For two related reasons, the OASIS certification process satisfies the Lieberman definition of “in furtherance.” OASIS is currently formulating a definition of organic for personal care products. Logically, interest in that formulation is materially enhanced by the fact that this standard will be “attached” to certain products through use of the OASIS Organic seal. The cost and effort undertaken to lobby OASIS on its standard or, for that matter, to pursue this lawsuit, may be substantial. If the standard, once finalized, were to be relegated to a single press release or even permanent placement on the OASIS Web site, it would generate far less attention among consumers, and, therefore, those who wish to influence them. In sum, the future act, certifying that certain products achieve a specific standard, promotes interest and participation in the earlier debate over what that standard should be.
Further, the certification process creates ongoing interest in the standard. That is, in addition to promoting sales of a product, affixing the OASIS Organic seal to that product promotes the standard and generates interest in its content. (See 3 McCarthy, supra, § 19:91 [noting that the owner of the mark must promote it to convince consumers of the reliability and utility of the mark].) As discussed above, use of the OASIS Organic seal will generate significantly more consumer interest in OASIS‘s definition of organic than the definition would receive were it relegated to OASIS‘s Web site.13
Dr. Bronner asserts that California appellate cases have consistently held that “promotional statements on product labels and in advertising that are designed to sell products . . . are not speech ‘in connection with a public 13
In Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404 [9 Cal.Rptr.3d 242] (Scott), a woman who suffered a stroke after using the defendant‘s product, Metabolife 356, sued for personal injury and false advertising. The advertising consisted of misleading statements by the manufacturer regarding the product‘s safety and efficacy. (Id. at p. 408section 425.16.” (Id. at p. 420, fn. omitted.) Because the false advertising did not address “obesity or weight management in general,” section 425.16 did not apply. (Scott, at p. 423.)
In Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39 [134 Cal.Rptr.2d 420] (Nagel), the court rejected an anti-SLAPP motion directed at an unfair competition lawsuit brought against the manufacturer of an ephedrine-containing herbal supplement. (Id. at pp. 42-43Id. at p. 44section 425.16.” (Id. at pp. 47-48.)
Finally in Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 598-599 [132 Cal.Rptr.2d 191] (Consumer Justice Center), the plaintiff sued the manufacturer of the product Grobust, which claimed its product offered ““The All-Natural Way To A Fuller, More Beautiful Bust!“” The plaintiff alleged that and other statements were false and misleading, in violation of the
Dr. Bronner‘s reliance on these particular cases reflects a fundamental misunderstanding of the role played by certification marks, like the one at issue here. The OASIS Organic seal, applied only after approval by an independent inspector, provides useful consumer information and promotes the OASIS definition of organic, a topic of substantial public interest. A manufacturer‘s act of placing information on a label touting its own product is typically for the purpose of marketing the product and not in furtherance of the manufacturer‘s speech on a larger issue of public interest. In contrast, OASIS‘s interest is in public acceptance of its standard, not the sale of any particular product. For these reasons, Scott, Nagel, and Consumer Justice Center are inapposite.15
III. Conclusion
In this case, Dr. Bronner contends the OASIS Organic seal will constitute a false and misleading representation that the contents of the products to which it is affixed are organic. Dr. Bronner alleges the OASIS organic standard is contrary to reasonable consumer expectations that, for example, organic personal care products do not contain any petrochemicals, synthetic preservatives, or cleansing agents derived from conventionally produced agricultural materials. A conclusion that OASIS‘s role in the certification process is protected under the anti-SLAPP statute would not immunize OASIS from liability for any false or misleading aspects of its certification mark. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 953 [119 Cal.Rptr.2d 296, 45 P.3d 243] [“commercial speech that is false or misleading is not entitled to First Amendment protection and ‘may be prohibited entirely‘“].) Instead, Dr. Bronner‘s allegations are relevant only to the second prong of the anti-SLAPP statute‘s analysis, which considers whether the plaintiff has shown a probability of prevailing. (See Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305 [106 Cal.Rptr.2d 906] [“The problem with [the plaintiff‘s] argument is that it confuses the threshold question of whether the SLAPP statute applies with the question whether [the plaintiff] has established a probability of success on the merits.“].) If 15
The petition of appellant All One God Faith, Inc., for review by the Supreme Court was denied July 28, 2010, S182848. George, C. J., did not participate therein. Corrigan, J., was of the opinion that the petition should be granted.
Notes
Nevertheless, Dr. Bronner‘s third cause of action is premised on the allegation that one or more of defendants plan to “imminently” label products as “certified Organic’ in accordance with the [OASIS] standard . . . ,” and OASIS agreed that in creating the OASIS organic seal it “is ‘certifying’ as that term is used in the context of certification marks.” In part II.B. and C. post, we base our decision on the record before the trial court.
<http://tess2.uspto.gov/tmdb/tmep/1300.htm> (as of Apr. 13, 2010).