When a consumer trade association “speaks” about the health effects of a product, is its speech on an issue of public interest, and thus within the scope of the DC anti-SLAPP statute, or is it in furtherance of the association’s private or commercial interests, falling outside the statue’s scope? A case pending in DC Superior Court could answer this interesting question.

Earlier this year, Denise Simpson filed suit against a manufacturer and suppliers of talc, alleging that she developed ovarian cancer by using talcum powder. Simpson also sued the Personal Care Products Council, alleging that, in a former incarnation, it hired scientists to perform research regarding the safety of talc, and submitted information to governmental agencies about talc’s safety. The complaint alleges that the studies were “biased” and were part of a campaign to “prevent the regulation of talc and to mislead the consuming public about the true hazards of talc.” The complaint asserts three causes of action against PCPC: negligence, fraud and civil conspiracy.

In May 2016, PCPC filed a special motion to dismiss under the DC anti-SLAPP statute. In its brief, PCPC argued that the suit arose from an act in furtherance of the right of advocacy because its alleged conduct included: (a) submitting materials to governmental agencies in response to issues under their consideration; (b) releasing information regarding the safety of talc to the public; and (c) petitioning the government and communicating with the public about the safety of talc.

(Recall that “act in furtherance of the right of advocacy on issues of public interest” is defined to include an oral or written statement made (i) In connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or (ii) In a place open to the public or a public forum in connection with an issue of public interest; or (B) Any other expression or expressive conduct that involves petitioning the government or communicating views to members of the public in connection with an issue of public interest).

PCPC further argued that the claims against it arose from speech on an “issue of public interest,” which is defined to mean “an issue related to health or safety; environmental, economic, or community well-being; the District government; a public figure; or a good, product, or service in the market place,” because they arose from speech about a product in the marketplace and its safety or health.

PCPC’s brief acknowledged that the DC anti-SLAPP statute excluded claims “brought against a person primarily engaged in the business of selling or leasing goods or services,” but argued that, because PCPC did not sell or lease products, this provision was inapplicable. PCPC argued that the Court should dismiss Simpson’s complaint because she could not carry her “heavy burden” of establishing a likelihood of success on the merits of her fraud, negligence and conspiracy claims.

Simpson’s opposition primarily argued that the DC anti-SLAPP statute was inapplicable because PCPC’s “speech” was made in furtherance of “the private, commercial interests of itself and its members,” and not on issues of public interest. Simpson noted that the statute’s definitional section stated that “[t]he term ‘issue of public interest’ shall not be construed to include private interests, such as statements directed primarily toward protecting the speaker’s commercial interests rather than toward commenting on or sharing information about a matter of public significance.”

According to Simpson, the Act was inapplicable because, “[r]ather than advocating on issues of public interest, PCPC advocated with its private interests and the commercial interests of its members as its primary motivators. . .”. Simpson also argued that PCPC’s speech did not fit the typical SLAPP pattern, because it did not arise from “grassroots activism,” and that, in any event, she was entitled to discovery.

(On the “grassroots activism” point, the DC Court of Appeals essentially rejected this argument in Burke II, holding that the statute did not only apply to “classic” or “typical” SLAPP suits, but instead applied “to lawsuits which the D.C. Council has deemed to be SLAPPS.” As for the request for discovery, the statute requires a party to show that “targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome.” Simpson’s opposition does not make this showing).

PCPC’s reply disputes Simpson’s principal assertion that a commercial trade association’s speech is, essentially, always about private or commercial interests, and can never be about an issue of public interest. According to PCPC, its speech here was quintessentially about an issue of public interest because PCPC specifically responded to government inquiries about talc or submitted materials about talc to the government. PCPC further argues that, as a non-profit trade association, it has no commercial interest to protect. Finally, argues PCPC, the commercial interests of its members cannot be imputed to PCPC’s speech:

Even if its actions served some of the interests of a minority of its membership, that is insufficient to place PCPC’s advocacy in the realm of “private interests.” Notably, Plaintiff does not allege that PCPC made any representations regarding a particular product. And, the Act precludes only those in the business of selling goods and services from invoking its protections. If the D.C. legislature wanted, it could have exempted trade organizations or any entity tangentially related to a commercial product. It did not.

On the critical question of whether PCPC’s “speech” to the government was about an issue of public interest, or in the trade association’s private or commercial interests, PCPC’s reply brief appears to miss a critical point: the first prong of the “act in furtherance of the right of advocacy on issues of public interest” definition does not, on its face, require the statement to be “in connection with an issue of public interest” (unlike the other two prongs of the definition). Thus, if the speech giving rise to this suit involved statements about an issue under consideration by a government agency, as PCPC argues, that should satisfy PCPC’s obligation under the statute, without it needing to also show the speech was about an issue of public interest. (As I have written before, at least two courts have inserted a “public interest” requirement into this prong of similar state statutes, in Vermont and Louisiana. To date, this issue has not been litigated in DC).

At the end, even if PCPC needs to show that the speech giving rise to the suit was in connection with an issue of public interest, I believe it has the better of the arguments. It appears that PCPC’s speech was not about a particular product or service; rather, it was about the safety and efficacy about a product being examined by the federal government and of widespread interest to the general public. That speech, it seems to me, fits comfortably within the statute’s “public interest” definition.

A California intermediate court’s decision, in DuPont Merck Pharm. Co. v. Superior Court, seems analogous. There, the plaintiff alleged a drug manufacturer made false statements before regulatory bodies, the medical profession and the public in order to advance the market share of its product. The court summarized the defendant’s activities “as falling into two categories: (1) lobbying and other activities seeking to influence the decisions of regulatory and legislative bodies and (2) advertising, marketing, and public relations activities directed at the medical profession and the general public.”

The court held that the first category’s activities fell within the statute’s prong covering “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or other official proceeding authorized by law.” The court noted that, under this prong, it was not necessary that the statements be made in connection with an issue of public interest.

With respect to the other activities (advertising, marketing and public relations activities directed at the medical profession and the general public), the court held that, because of the widespread nature of the activities, and the seriousness of the conditions, this qualified the issue as one of public interest.

If a drug manufacturer’s statements about a particular product were held to be in the public interest, it seems to me that a trade association’s speech about products generally should be similarly covered. Stay tuned.