As required by the November 18, 2014 order, NAM filed its Supplemental Brief on December 29, 2014, arguing that the April 2014 decision by the Court of Appeals should be upheld and that the product description required by the conflict minerals rule violates the First Amendment.
Brief of NAM
NAM argues that the product description required by the conflict minerals rule is the equivalent of a governmental message that is not purely “factual and uncontroversial.” Instead, according to NAM, (1) the description is ideological and conveys a moral judgment, (2) it is misleading because the product description implies something about the product that may not be true, and (3) it is contentious because it conveys the government’s position on a controversial subject.
Therefore, NAM argues that because the required disclosure is not purely factual and uncontroversial, the limited scrutiny of the Zauderer case does not apply here. Further, NAM argues that the product description is not “commercial speech,” so it should be subject to a heightened scrutiny. Finally, NAM also argues that the required description is not related to the government’s goal for the conflict minerals rule (which was to reduce the violence in the Congo).
Now that the briefs have been filed, we are waiting for an indication of whether an oral argument will take place and then for a decision about whether the product description requirement of the conflict minerals rule violates the First Amendment.
In the meantime, companies should continue to gather the information about the country of origin of their conflict minerals and the source and chain of custody of any conflict minerals that originate (or may originate) from the Congo or adjoining countries. The decision of the Court of Appeals could come as late as the spring, so companies should not put their compliance efforts on hold. They need to continue their efforts so that they are prepared to comply with the requirements of the conflict minerals rule — regardless of what decision the Court of Appeals makes on the First Amendment issue.