Whether the prior substantiation doctrine violates the First Amendment

QUESTION PRESENTED The State of Washington brought a civil action against Petitioners under its consumer protection law, alleging that their advertisements for 5-hour ENERGY® were deceptive because they were “false” and “unsubstantiated.” At trial, however, the State abandoned its claim that the speech was false and instead argued it was deceptive under the Federal Trade Commission’s “prior substantiation” doctrine. That doctrine makes a commercial speaker liable if it lacks adequate “substantiation” for its factual claims before making them in an advertisement—even if the speech is never proven to be false. The trial court held that Petitioners had not adequately substantiated certain promotional claims about its product and the Washington Court of Appeals affirmed. Petitioners argued that the First Amendment does not permit speakers to be punished for failing to adequately “substantiate” their factual claims before exercising their right to free speech. The court of appeals disagreed, concluding that unsubstantiated speech is entitled to no First Amendment protection under this Court’s commercial speech cases, including Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 563 (1980), because unsubstantiated speech is “misleading” as a matter of law. The question presented is: Whether the prior substantiation doctrine violates the First Amendment.