Jurisdictional Statement — Dahlberg Electronics, Inc. v. Kievlan

Supreme Court brief1978

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Text

mupreme Court, U. S,

FILED

SEP 13 1978

1 MIcHABL RODAK, JR. CLERK

IN THE

Supreme Court

OF THE

United States

OctosBer TERM, 1978

No. 78-42}

GeorcE Kievan, et al.,

Appellees,

Vs.

DanuserG ELectronics, Inc., et al.,

Appellants.

On Appeal from the Court of Appeal

of the State of California

First Appellate District

JURISDICTIONAL STATEMENT

STANLEY WALSH,

Jorpan, Wausu, Lawrence,

Dawson & CaRBONE,

235 Montgomery Street, Suite 1249

San Francisco, California 94104

Telephone: (415) 392-4142

Attorneys for Appellants Dahlberg

Electronics, Inc., and Detection

Sciences, Inc. p

BOWNE-PERNAU WALSH © 1045 SANSOME ST. - S.F.,CA 94111 ¢ (415) 981-7882

EE 2

I re ae 2

(i) The Nature of the Proceedings and the Statutes

pursuant to which they were brought ........... 2

(ii) Judgment of the State Court. .................. 2

(iii) The Statutory Provisions Conferring Jurisdiction

EE 3

(iv) Cases which Sustain the Jurisdiction ............. 3

EE 3

ys ccc s cece cesses ccccceec. 4

ee yc tee ccc eee eceees 4

(e) The Questions Are Substantial ........................ 7

I. The Statute Has Been Pre-empted..................... 7

TABLE OF CONTENTS

A. The statute imposes a requirement “different from”

and “in addition to” that of the federal act and is not

ope cr ens ye vcccocce. 9

B. Hearing aids have been classified as “restricted

gas hsp esc ccccccccces 13

C. The statute has not been exempted................ 14

D. The statute is in direct conflict with the Act ........ 14

E. The statute frustrates the full accomplishment of the

Gueeetve OF COMMONS |... 888. eee. 15

II. The Statute and Injunction Infringe Upon Appellant’s

Right to Freedom of Speech Under the First Amendment

to the United States Constitution ..................... 18

Commercial speech is protected by the First Amendment

to the United States Constitution .................. 18

The statute and the injunction are overly broad ........ 19

A. All representations for the purpose of inducing a pur-

chase are deemed advertising .................... 19

B. There is no provision for obtaining permission to

advertise a drug or device ........................

C. The statute prohibits truthful representations as well

as false or misleading ones....................... 21

D. The injunction goes beyond the particular advertising

which was exhibited to the court and presents a fur-

ther problem of overbreadth . . 9

ii TABLE OF CONTENTS

E. The extent of First Amendment protection for prod-

uct performance claims as opposed to price informa-

tion should be spelled out... if EE SB

3. Sections 26463 and 26465 constitute an invalid ae) re-

straint on freedom of expression }

(handi) Opinions, Judgment, and Orders

Cases

American Ry. Exp. Co. v. Levee (1923) 263 U.S. 19, 68 L.Ed.

140, 44 S.Ct. 11

Ashton v. Kentucky setag le 384 U.S. 195, 16 L.Ed2d 469, 86

S.Ct. 1407 .....

Bates v. State Bar of Arizona, 433 U.S. 350, 53 L. Eds 2d 810, 97

S.Ct. 2691 ..

Board of Medical Examiners v. Terminal-Hudson Electronics,

73 Cal.App.3d 376, 140 Cal.Rptr. 757

Broadrick v. Oklahoma (1973) P13 U.S. 601, 37 L. Ed.2d 830,

93 S.Ct. 2908

Burbank v. Lockheed Air Terminal, Inc. (1973) 411 US. 624,

em me Gg | ee ee ee

a ag Co. v. Sav-On-Drugs (1953) 40 Cal.2d 492, 254 P.2d

Carroll v. Commissioners of Princess Anne (1988) | 393 U.S.

175, 21 L.Ed.2d 325, 89 S.Ct. 347

Elfbrandt v. Russeli sc 384 U.S. 11, 16 L.Ed.2d 321, 86

S.Ct. 1238...

Griswold v. Connecticut (1965) 381 U.S. 479, 14 L. Ed2 2d 510,

So O44. 1676 .....:..

Health Systems Agency of Northern Virginia v. Virginia State

Board of Medicine (E.D. VA. 1976) 424 F.Supp.

Heller v. New York (1973) 413 U.S. 483, 37 L. fed. 2d 745, 93

S.Ct. 2789

Huffman v. Pursue, Ltd., 420 U.S. 592, 43 L.Ed. 2d 482, 95

S.Ct. 1200, rehearing denied 421 U.S. ‘971, 44 L.Ed.2d 463,

95 §.Ct. 1969 |

Interstate Circuit, Inc. v. Dallas ( (1968), 390 U.S. 676, 20

L.Ed.2d 225, 88 S.Ct. 1298

Jacoby v. State Bar of California, 19 Cal.3d 359, 377, 138

Cal.Rptr. 77

Jones v. Rath Packaging Co. (1977) 430 U.S. 519, 51 L.Ed.2d

604, 97 S.Ct. 1305

Pages

10, 11, 13, 15,

16, 17

TABLE OF CONTENTS

Keyishian v. Board of Regents (1967) 385 U.S, 589, 17 L.Ed.2d

Ge ae ee Oe oe ee ee ee eee

Linmark Associates, Inc. v. Township of Willingboro, ....

is Gee pee Se eg | er ee er ee

Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 71

CR Goes pen dniles Wuepeaeaed sons s ceenee ree

Neimotko v. Maryland (1951) 340 U.S. 268, 95 L.Ed. 267, 71

I IN cg wid. 64 v0 De RR e n Pee aa haba aiee ee os

Neslen v. Board of Health (1945) 70 Cal.App.2d 202, 160

PE A ss shale Renee Las eat cen eae

Organization for a Better Austin v. Keefe (1971) 402 U.S. 415,

wT eR Be | eee er err rrr

People v. Hohensee (1967) 251 Cal.App.2d 193, 59 Cal.Rptr.

ee ep hc eo en ees eae nn es

Poulos v. New Hampshire (1953) 345 U.S. 395, 97 L.Ed. 1105,

73 S.Ct. 760, reh. den. 345 U.S. 978, 97 L.Ed. 1392, 73 §.Ct.

cds es CAs ee de ERG ee tees

Ray v. Atlantic Richfield gr ag (1978) .... US.

_ L.Ed.2d ...., 98 S.Ct. 988

Shuttlesworth v. sicalinal (1968) 394 U.S. 147, 22 L.Ed.2d

a een a ee rie ere eee

Staub v. Baxley (1958) 355 U.S. 313, 2 L. Ed.2d 302, 78 S.Ct.

OE fits eet ee ee Cea rs eee ee arias cared t

U.S. v. Thirty-Seven (37) Photographs, 402 U.S. 363, 28

L.Ed.2d 822, 91 S.Ct. 1400, rehearing denied 403 U.S. ‘994,

YEO YY ye

Virginia State Board of Pharmacy, et al. v. Virginia Citizens

Consumer Council, Inc. (1976 ‘425 US. 748, 48 L.Ed.2d

OR LU Oe eer rrr repre

Codes

California Business and Professions Code:

Section 12211

California Code of Civil Procedure:

Section 437¢ *

California Government Code:

Section 102. aS. ake MD hie ee

Section 11426 Ad ~

Section 11427

Pages

iv TABLE OF CONTENTS

California Health and Safety Code:

Section 26002 |

Section 26460

Section 26463

Section 26463( m )

Section 26465

Constitutions

United States Constitution:

First Amendment

Article VI

Federal Register

42 Federal Register No. 31

42 Federal Register No. 31, page 9186

42 Federal Register No. 31, page 9291

42 Federal Register No. 31, page 9387

43 Federal Register No. 146, page 33182

Rules

United States Supreme Court:

Rule 15-1

Statute

21 U.S.C. § 301 et seq.

21 U.S.C. § 352

21 U.S.C. § 352(r)

21 USC. 360) (1)

21 U.S.C.

21 U.S.C. § 601 et seq.

28 U.S.C. § 1257(2)

Other Authorities

21 C.F.R. §§ 801.420

21 C.F.R. § 801.421

Miscellaneous

Medical Device Amendments of 1976 (P.L. 94- sens May 28,

1976

wo or RON on

SSa

nore

4, 6, 18, 23,

24, 25

IN THE

Supreme Court

OF THE

United States

OcrosBeR TERM, 1978

No.

GrorcE Kieviay, et al.,

Appellees,

VS.

Dauuserc Exectronics, Inc., et al.,

Appellants.

On Appeal from the Court of Appeal

of the State of California

First Appellate District

J URISDICTIONAL STATEMENT

This is a jurisdictional statement submitted in support

of the appeal of Dahlberg Electronics, Inc. and Detection

Sciences, Inc. (hereinafter collectively referred to as “Ap-

pellant”).’

The format of this statement will conform to the order,

lettering and numbering of Rule 15, to the extent applica-

ble.

‘Appellant Dahlberg Electronics, Inc. is a subsidiary of appellant

Detection Sciences, Inc. For literary convenience, they are herein-

after referred to simply as “Appellant.”

(a) Opinion below

The opinion of the Court of Appeal of the State of

California is reported in 78 Cal.App.3d 951, 144 Cal.Rptr.

085. A copy of the opinion is also appended hereto as

Exhibit A.

(b) Jurisdiction

(i) The Nature of the Proceedings and the Statutes

pursuant to which they were brought.

This is an action for injunction brought pursuant to

California Health and Safety Code Section 26463(m). The

Superior Court of the State of California in and for the

County of Santa Cruz issued an injunction which pro-

hibits appellant from advertising that the hearing aids

which it manufactures have any effect on hearing loss or

deafness.

(ii) Judgment of the State Court.

The judgment of the Superior Court by which the in-

junction was issued was dated March 17, 1976 and entered

March 22, 1976 in Judgment Book, Volume 148, page 220.

Appellant filed a Notice of Appeal to the Court of Appeal

of the State of California on May 19, 1976. The Court of

Appeal’s opinion was filed on March 21, 1978. The Court

of Appeal denied a petition for rehearing on April 14,

1978. Appellant filed a petition for hearing in the Su-

preme Court of the State of California on May 1, 1978.

The petition was deniea on June 15, 1978 and the judg-

ment of the Court of Appeal became final on that date.

American Ry. Exp. Co. v. Levee (1923) 263 U.S. 19, 68

L.Ed. 140, 44 S.Ct. 11.

Notice of Appeal to this Court was filed in the Court

of Appeal on September 1, 1978.

i \

(iii) The Statutory Provisions Conferring Jurisdiction

On This Court.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(2).

(iv) Cases which Sustain the Jurisdiction.

The decision of the Court of Appeal sustained the valid-

ity of the California statute as against appellant’s claim

that it violates the Constitution and laws of the United

States. This decision has become final and therefore an

appeal to this Court lies as a matter of right. Huffman

v. Pursue, Ltd., 420 U.S. 592, 43 L.Ed.2d 482, 95 S.Ct.

1200, rehearing denied 421 U.S. 971, 44 L.Ed.2d 463, 95

S.Ct. 1969.

Should this Court determine that an appeal does not lie,

then appellant requests that this appeal and jurisdictional

statement be treated as a petition for writ of certiorari.

(v) Statutes Involved.

This appeal involves California Health and Safety Code

Section 26463(m) which states that:

“Tt is unlawful for any person to advertise any drug

or device represented to have any effect on any of the

following conditions :

(m) Diseases or disorders of the ear or auditory ap-

paratus, including hearing loss and deafness.” (Calif.

Stat. 1970, ¢. 1573, p. 3252 § 5, Amended, Calif. Stats.

1971, c. 646, p. 1272, § 16).

Also involved is California Health and Safety Code

Section 26465 which states:

“Whenever the department determines that an ad-

vance in medical science has made any type of self-

medication safe and effective as to any of the condi-

tions, disorders, or diseases named in Section 26463,

the department shall, by regulation, authorize the ad-

vertisement of any such drug or device as having a

curative or therapeutic effect for such disease, subject

to sach conditions and restrictions as the department

may consider necessary to the interests of public

health.” (Calif. Stats. 1970, ¢. 1573, p. 3253, § 5.)

(1) Whether California Health and Safety Code See-

tion 26463(m) has been pre-empted by the Food, Drug

and Cosmetics Act (21 U.S.C. § 301 et seq.) as amended

by the Medical Device Amendments of 1976 (21 U.S.C.

§ 360k).

(2) Whether a state statute and an injunction issued

pursuant thereto prohibiting a hearing aid manufacturer

from making any representations regarding the effect of

its product on hearing loss or deafness are repugnant to

the First Amendment to the United States Constitution.

(d) Statement of the Case

Appellees are individuals who claim to suffer from

hearing loss.

This matter came before the Superior Court on appel-

lees’ motion for injunction by summary judgment. The mo-

tion was supported by copies of certain advertisements

published by appellant. The basis of appellees’ motion

was that the advertisements violated Section 26463(im) of

the California Health and Safety Code.

The Superior Court made its decision solely on the basis

of the advertisements submitted and its interpretation of

the statute. The Superior Court made no finding that the

advertisements submitted were false or misleading.

The injunction which the court issued was not directed

to the particular advertisements before it, but to any and

all advertising regarding the effectiveness of a hearing

aid. It states:

It Is Ordered, Adjudged And Decreed ... that De-

fendants be and they hereby are permanently en-

joined and restrained from advertising their hearing

aids in California by representing that said hearing

aids have any effect on diseases or disorders of the

ear, or auditory apparatus, including hearing loss and

deafness. (Tr. 308.)

The court also stated in its “Findings of Fact and Con-

clusions of Law”:

The use of the term hearing aid in and of itself is not

a violation of Section 26463(m), and nothing contained

therein precludes defendants or their dealers from

advertising their place of business, that Dahlberg hear-

ing aids are sold there, the prices of the hearing aids

or any other information of that nature. (Tr. 305-6.)?

In order to understand the full significance of the injunc-

tion, the statutory definition of “advertisement” must be

kept in mind.

“Advertisement” means any representations, including,

but not limited to, statements upon the products, its

packages, cartons, and any other container, dissemi-

nated in any manner or by any means, for the purpose

of inducing, or which is likely to induce, directly or

indirectly, the purchase or use of any food, drug,

device or cosmetic. (California Health and Safety

Code Section 26002. )

The Court of Appeal affirmed the judgment. It rejected

appellant’s contention that the statute should be narrowly

construed so as to prohibit only false and misleading

claims. It held that the statute prohibits not only false and

misleading representations that a hearing aid will cure

2In view of the use of the summary judgment procedure, the

making of findings of fact and conclusions of law was erroneous

under California law. (Calif. Code of Civil Procedure Section 437c. )

hearing loss, but also truthful representations that a hear-

ing aid may have a compensatory effect on hearing loss.

The opinion states:

“The statute ‘s clear and unambiguous and does not

exempt any so-called “compensatory effect.” There is

an exception included in the [California] Sherman

Food, Drug and Cosmetics Law, which authorizes

advertising of drugs and devices having a curative or

therapeutic effect under certain conditions (§ 26465),! )

however, this section makes no mention of compensa-

tory effect and there is no claim by defendants that

they had received any such authorization from the

department exempting their product.” (Opinion, pp.

3-4.)

The Court of Appeal’s construction of the statute is

binding on this Court. U.S. v. Thirty-Seven (87) Photo-

graphs, 402 U.S. 363, 28 L.Ed.2d 822, 91 S.Ct. 1400, rehear-

ing denied 403 U.S. 924, 29 L.Ed.2d 702, 91 S.Ct. 2221.

The Court of Appeal also rejected appellant’s contention

that Section 26463(m) was pre-empted by federal law and

regulation. In so doing, it held that the subject statute was

a “prohibition” and not a “requirement” and that hearing

aids were not “restricted devices” within the meaning of

21 U.S.C. § 352(1). These distinctions and terminology are

discussed in detail below.

Finally, the Court of Appeal also held that the subject

statute, as construed and applied by it, did not deny free-

dom of speech as guaranteed by the First Amendment. It

based this holding upon its own independent finding of

fact that “. . . the copies of the advertisements that are

included in the record . . . were misleading in that they

convey the impression that the hearing aid would have a

curative or therapeutic effect.” (Opinion, p. 5). It is essen-

tial to note, however, that the injunction was not limited

to the particular advertisements in the record but covers

all advertising. Therefore, the court’s conclusion, even if

true, does not support its holding.

Appellant made its contentions that the statute was pre-

empted and that it was unconstitutional for the first time

in the Court of Appeal. They were not made in the Supe-

rior Court because the federal law had not yet been enacted

and because this Courts’ decision in Virginia State Board

of Pharmacy, et al. v. Virginia Citizens Consumer Council,

Inc. (1976) 425 U.S. 748, 48 L.Ed.2d 346, 96 S.Ct. 1817, had

not yet been announced.

(e) The Questions Are Substantial

I. The statute has been pre-empted.

Section 26463(m) was clearly pre-empted by federal stat-

ute and regulations enacted and promulgated during the

pendency of this appeal. The federal statute and regula-

tions were called to the attention of the Court of Appeal in

appellant’s closing brief. The court agreed that the pre-

emption issue was timely raised, (see Meier v. Ross Gen-

eral Hospital (1968) 69 Cal.2d 420, 423 (footnote 1); 71

Cal.Rptr. 903; Cal-Dak Co. v. Sav-On-Drugs (1953) 40 Cal.

2d 492, 496-497, 254 P.2d 497) but held that pre-emption

had not occurred.

The error in this conclusion is readily apparent from an

examination of the federal statute and regulations.

1. On May 28, 1976. the Medical Device Amendments of

1976 (P.L. 94-295) became law. The new law amended the

Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et

seq., hereinafter “Act”). New section 521 of the Act (21

U.S.C. 360k) states that:

“Sec. 521. (a) Except as provided in subsection (b),

no State or political subdivision of a State may estab-

lish or continue in effect with respect te a device

intended for human use any requirement—

(1) which is different from, or in addition to, any

requirement applicable under this Act to the device,

and

(2) which relates to the safety or effectiveness of

the device or to any other matter included in a

requirement applicable to the device under this Act.

Exempt Requirements

(b) Upon application of a State or a political sub-

division thereof, the Secretary may, by regulation

promulgated after notice and opportunity for an oral -

hearing, exempt from subsection (a), under such con-

ditions as may be prescribed in such regulation, a

requirement of such State or political subdivision

applicable to a device intended for human use if

(1) the requirement is more stringent than a

requirement under this Act which would be applic-

able to the device if an exemption were not in effect

under this subsection ; or

(2) the requirement—

(A) is required by compelling local conditions,

and

(B) compliance with the requirement would not

not cause the device to be in violation of any

applicable requirements under this Act.” (Empha-

sis added.)

2. New section 520(e) of the Act (21 U.S.C. 360j(e) (1) )

states that the Secretary of Health, Education and Wel-

fare may adopt regulations which restrict the sale, distri-

bution or use of medical devices. Upon the adoption of such

regulations, these devices are then known as “restricted

devices.”

& On February 10, 1977 the Food and Drug Admin-

istration of the United States Department of Health, Edu-

eation and Welfare (FDA) adopted new Rules and

Regulations pertaining to hearing aid devices. (42 Fed.

Reg. No. 31.) The regulations took effect on August 15,

1977. These regulations classify hearing aids as “restricted

devices.’”*

4. Because hearing aids are “restricted devices” they

are covered by the provisions of 21 U.S.C. § 352 pertaining

to “misbranded drugs and devices.” This section of the

Act states in pertinent part that,

“A drug or device shall be deemed to be mis-

branded—...

(r) In the case of any restricted device distributed

or offered for sale in any State, unless the manufac-

turer, packer or distributer thereof includes in all

advertisements ...a brief statement of the intended

uses of the device and relevant warnings, precautions,

side effects, and contra-indications ... .” (Emphasis

added.)

The Court of Appeal based its conclusion that pre-emp-

tion had not oceurred upon two grounds: (a) that section

26463(m) embodies a “prohibition” rather than a “require-

ment” as referred to in 21 U.S.C. § 360k; and (b) that hear-

ing aids are not “restricted devices.” (See Opinion, p. 8.)

Neither of these grounds has any validity.

A. The statute imposes a requirement “different from” and

“in addition to” that of the federal act and is not a mere

prohibition.

The first ground is a purely superficial distinction, based

strictly upon semantics, and drawn without any regard to

the intent of the Act. The language of 21 U.S.C. § 352(r)

’The Food and Drug Administration specifically stated when

publishing the regulations that “Upon the effective date of the

regulation, hearing aids will become ‘restricted devices’ under

section 520(e) of the Federal Food, Drug and Cosmetic Act.” (See

42 Fed.Reg. No. 31, at page 9291.)

reveals a clear intent to control the content of “all advertise-

ments” of a “restricted device.” Such advertisements must

contain “a brief description of the intended uses of the

device.”

The intent of Congress is clearly contravened by any

state law purporting to prohibit the manufacturer of a

“restricted device” from describing its intended use. Yet

this is precisely what section 26463(m), as construed by both

the Superior Court and the Court of Appeal herein, does.

It prohibits the hearing aid manufacturer from represent-

ing that the aid has “any effect,” even a compensatory effect,

on hearing loss. To say that this is only a “prohibition” as

opposed to a “requirement” is to elevate form over sub-

stance. It requires one to indulge in the unrealistic assump-

tion that hearing aids will simply not be advertised. Such

assumption is not only naive, it is also contrary to the clear

policy of Congress that such advertising is desirable. (See

discussion, section D infra.) The statute is therefore “differ-

ent from” and “in addition to” the Act.

The distinetion which the Court of Appeal sets up is

contrary to this Court’s guidelines for determining whether

pre-emption has occurred. As stated by this Court in Jones

v. Rath Packaging Co. (1977) 430 U.S. 519, 51 L.Ed.2d 604,

97 S.Ct. 1805,

Where, as here, the field which Congress is said to

have pre-empted has been traditionally occupied by the

States, see, eg., U.S. Const Art T, § 10; Patapseo Guano

Co. v. North Carolina, 171 US 345, 358, 43 L Ed 191, 18

S Ct 862 (1898), “we start with the assumption that

the historic police powers of the States were not to be

superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Riee v Santa

Fe Elevator Corp. 331 US 218, 230, 91 L Ed 1447, 67

S Ct 1146 (1947). This assumption provides assurance

that “the federal-state balance,” United States v Bass,

404 US 336, 349, 30 LL Ed 2d 488, 92 § Ct 515 (1971),

will not be disturbed unintentionally by Congress or

unnecessarily by the courts. But when Congress has

“unmistakably ... ordained,” Florida Lime & Avocado

Growers, Inc. v Paul, 373 US 132, 142, 10 L Ed 2d 248,

83 S Ct 1210 (1963), that its enactments alone are to

regulate a part of commerce, state laws regulating that

aspect of commerce must fall. This result is compelled

whether Congress’ command is explicitly stated in the

statute’s language or implicitly contained in its struc-

ture and purpose. City of Burbank v Lockheed Air

Terminal, Ine. 411 US 624, 633, 36 L Ed 2d 547, 93

S Ct 1854 (1973); Rice v Santa Fe Elevator Corp.,

supra, at 230, 91 L Ed 1447, 67 S Ct 1146.

In Jones certain packages of bacon were ordered removed

from sale pursuant to a California weight labelling statute

and regulations which required that the average weight of

packages in a lot of any commodity shall not be less at the

time of sale than the net weight stated on the packages. The

company which had packaged the bacon instituted actions

against certain state officials seeking an injunction against

enforcement of the state laws and a declaration that such

laws were pre-empted by federal laws regulating net weight

labelling. The California laws made no allowances for

reasonable variations from stated weight resulting from

loss of moisture during the course of good distribution prac-

tices, but the federal law provided that “reasonable varia-

tions” between actual weight and the weight stated on the

label could be permitted by regulations prescribed by the

Secretary of Agriculture and the Secretary’s regulations did

permit “reasonable variations” resulting from loss of mois-

ture during the course of good distribution practices.

The question presented was basically the same as the one

herein; i.e., whether the State of California had attempted

to impose “requirements in addition to, or different than,”

those made under a federal law.* The subject statute, section

‘Federal Meat Inspection Act, as amended by the Wholesale Meat

Act, 21 U.S.C. §§ 601 et seq.

12211 of the California Business and Professions Code, was

couched in prohibitory language, much the same as the state

statute herein.” Nevertheless, this Court held that it was

pre-empted by a “labelling requirement” contained in the

federal statute. In so holding, this Court looked to the mani-

fest purpose and objective of the federal Jaw, i.e., to make

*“Each sealer shall, from time to time, weigh or measure pack-

ages, containers or amounts of commodities sold, or in the process

of delivery, in order to determine whether the same contain the

quantity or amount represented and whether they are being sold

in accordance with law.

“The director [of agriculture] is hereby authorized and directed

to adopt and promulgate necessary rules and regulations governing

the procedures to be followed by sealers in connection with the

weighing or measuring of amounts of commodities in individual

packages or containers or lots of such packages or containers,

including the procedures for sampling any such lot, and in deter-

mining whether any package or container or a lot of such packages

or containers complies with the provisions of this section. . . .

“Any such rule or regulation, or amendment thereof, shall be

adopted and promulgated by the director in conformity with the

provisions of Chapter 4.5 (commencing with Section 11371), of

Part 1 of Division 3 of Title 2 of the Government Code; provided,

that the average weight or measure of the packages or containers

in a lot of any such commodity sampled shail not be less, at the

time of sale or offer for sale, than the net weight or measure stated

upon the package, and provided further, that said rules or regula-

tions applicable to food, as defined in Section 26450 of the Health

and Safety Code, insofar as possible, shall not require higher stan-

dards and shall not be more restrictive than regulations, if any,

promulgated by the Department of Health, Education, and Wel-

fare. Food and Drug Administration, under the provisions of the

Federal Food, Drug and Cosmetic Act.

“Any lot or package of any such commodity which conforms to

the provisions of this section shall be deemed to be in conformity

with the provisions of this division relating to stated net weights or

measures.

“Whenever a lot or package of any commodity is found to ccn-

tain, through the procedures authorized herein, a less amount than

that represented, the sealer shall in writing order same off sale and

require that an accurate statemcnt of quantity be placed on each

such package or container before same may be released for sale by

the sealer in writing. The sealer may seize as evidence any package

or container which is found to contain a less amount than that rep-

resented.” (Emphasis added. )

allowances for loss of weight resulting from moisture loss

during the course of good distribution practice. It rejected

the argument of the county director of weights and measures

which was based upon a narrow construction of the term

“labelling requirement.”

Petitioner Jones seeks to avoid this result by argu-

ing that the FMIA’s provisions governing the accuracy

of the required net quantity statements are not “label-

ing requirements” within the meaning of § 408. He con-

tends that “labeling” refers only to the format and

placement of information, not to its content. Require-

ments relating to accuracy, according to Jones, deal

with the problem of misbranding, and § 408 grants the

States concurrent jurisdiction over that subject.

We agree with the Court of Appeals that this argu-

inent is “strained.” 530 F2d, at 1314 n 25. Nothing in

the Act suggests the restrictive meaning petitioner

ascribes to the phrase “labeling requirements.” To the

contrary, 4 7(b) requires that the product bear speci-

fied information, see supra, at 528-529, 51 L Ed 2d

616, and §1(p) of the FMIA, 21 USC §601(p) [§ 2,

21 USCS §601(p)], makes clear that any material

bearing that information is part of the product’s label-

ing. It twists the language beyond the breaking point

to say that a law mandating that labeling contain cer-

tain information is not a “labeling requirement.”

We therefore conclude that with respect to Rath’s

packaged bacon, § 12211 and Art 5 are pre-empted by

federal law.

(430 U.S. at p. 532.)

B. Hearing aids have been classified as “restricted devices.”

The seeond ground relied upon which the Court of Ap-

peal predicated its conclusion that pre-emption had not

occurred, i.e. that hearing aids are not “restricted de-

vices”, need not detain this Court for more than a mo-

ment. The FDA, in adopting its regulations expressly

classified hearing aids as “restricted devices”. (See 42

Fed. Reg. No. 31, p. 9291.) The FDA is authorized to

make this classification. (21 U.S.C. 360) (e)(1).)

C. The statute has not been exempted.

The Court of Appeal’s opinion that section 26463(m)

has not been pre-empted no doubt came as a surprise to

the California Department of Health which filed an appli-

cation dated July 19, 1976, entitled “Application for Ex-

emption of California Medical Device Requirements from

Pre-emption by Federal Medical Device Amendments of

1976 (Section 521(a))” with the Commissioner of Food

and Drugs. The application of the Department of Health

(which covers many statutes) is still pending before the

FDA.

The FDA by notices of February 15, 1977, 42 Fed.Reg.

No. 31, page 9186, and July 28, 1978, 43 Fed.Reg. No.

146, page 33182, has tentatively proposed to grant the ap-

plication, but has invited special comment regarding the

subject statute.°

D. The statute is in direct conflict with the Act.

The statute prohibits the very advertising which the

federal Act and regulations require.

As shown above, the Act specifically requires that all

hearing aid advertising shall include a brief statement as

to intended uses of the device, ie., what effect it will

have.

In addition, the regulations (21 C.F.R. §§ 801.420 and

801.421) impose several other duties upon hearing aid

“The FDA’s authority to grant or deny an exeiption is not ques-

tioned. Indeed, Congress may authorize federal administrative agen-

cies to directly pre-empt state laws by the promulgation of admin-

istrative regulations. (See, e.g.. Burbank cv. Lockheed Air Terminal,

Inc. (1973) 411 U.S. 624, 36 L.Ed.2d 547, 93 S.Ct. 1854.)

manufacturers and distributors. Among these duties, the

manufacturer or distributor must develop a User Instruc-

tional Brochure and provide a copy thereof to each pros-

pective purchaser of a hearing aid. This brochure must

contain certain information and warnings, including spe-

cific instructions for use of the hearing aid, a statement

that a hearing aid will not restore normal hearing, advice

that a person suffering from a hearing loss should consult

a licensed physician, preferably an ear specialist, before

purchasing a hearing aid, and that federal law restricts

the sale of hearing aids to those individuals who have ob-

tained a medical evaluation or signed a waiver thereof.

The brochure must contain “a statement that in most

cases infrequent use of a hearing aid does not permit a

user to obtain full benefit from it.” (21 C.F.R. § 801.420

(ix).)

These required statements are clearly advertising within

the meaning of California Health and Safety Code Section

26002, i.e., they are representations which are likely to in-

duce the purchase of a hearing aid. As such they fall

within the scope of the statute and the injunction, and

there is a clear conflict between federal and state laws.

Therefore, the state law is superseded. U.S. Const., Art.

VI.

E. The statute frustrates the full accomplishment of the

objectives of Congress.

Kiven if there were no direct conflicts, the state statute

would still be pre-empted for another reason. As Jones,

supra, reaffirms, a state statute is overridden by a federal

statute whenever it would frustrate the full aecomplish-

ment of the objectives of Congress. This is precisely the

situation in the instant case where the objective of Con-

gress is to stimulate the flow of information regarding

the value of hearing aids.

Jones discussed the question of conflicting federal and

state legislation in these terms:

Congressional enactments that do not exclude all

state legislation in the same field nevertheless over-

ride state laws with which they conflict. U.S. Const,

Art VI. The criterion for determining whether state

and federal laws are so inconsistent that the state

law must give way is firmly established in our deci-

sions. Our task is “to determine whether, under the

circumstances of this particular case, {the State's]

law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Con-

gress.” Hines v Davidowitz, 312 US 52, 67, 85 L Kd

581, 61 S Ct 399 (1941). Accord, De Canas v Bica,

424 US 351, 363, 47 L Ed 2d 43, 96 S Ct 933 (1976) ;

Perez v Campbell, 402 US 637, 649, 29 L Ed 2d 233,

91 S Ct 1704 (1971); Florida Lime & Avocado Grow-

ers, Ine. v Paul, supra, at 141, 10 L Ed 2d 248, 83

S Ct 1210; id., at 165, 10 L Ed 2d 248, 83 S Ct 1210

(White, J., dissenting). Thi. inquiry requires us to

consider the relationship between state and federal

laws as they are interpreted and applied, not merely

as they are written. See De Canas v Bica, supra, at

363-365, 47 L Ed 2d 43, 96 S Ct 933; Swift & Co. v

Wickham, 230 F Supp 398, 408 (SDNY 1964), appeal

dismissed, 382 US 111, 15 L Ed 2d 194, 86 S Ct 258

(1965), affd on further consideration, 364 F2d 241

(CA2 1966), cert denied, 385 US 1036, 17 L Ed 683,

87 S Ct 776 (1967).

(430 U.S. at pp. 525-526, emphasis added.)

See also Ray v. Atlantic Richfield Company (1978)

Ls . ie ecw non PG AIII cccphaccomsicsstcvescenss 98 S.Ct. 988.

The lower courts herein have adopted the position that

the law must shield the prospective purchaser from per-

formance claims for hearing aids and have interpreted the

statute accordingly. But it is the policy of the federal law

and regulations to require the manufacturer to make per-

formance claims, ic. to tell the customer what the hearing

aid will do and at the same time to warn him what it

will not do.

In a prefatory statement to the new regulations, the

FDA states:

The Commissiener sees no value in characterizing

hearing aid dispensers solely as “sales persons,” or

in minimizing the importance of “selling” as it relates

to motivating persons to try amplification. Often a

person with a hearing impairment lacks the motiva-

tion to try a hearing aid or believes a social stigma

is attached to wearing a hearing aid (Ref. 4). Although

there are a number of documented cases of excessive

and abusive sales practices, this is not to say that

some selling practices and techniques such as a trial-

rental or purchase-option plan, which strengthen moti-

vation to try a hearing aid, are inherently bad. When

the number of hearing-impaired persons who currently

wear hearing aids is contrasted with the number of

people in the United Siates with a hearing impair-

ment who could be helped by a hearing aid, it is clear

that many people are reluctant to acknowledge their

hearing impairment or to seek assistance. Ethical sell-

ing practices that provide the potential hearing aid

user with incentives to try a hearing aid are therefore

to be encouraged. (42 Fed. Reg. No. 31, p. 9587, empha-

sis added.)

Appellant submits that the state statute, as interpreted

and applied herein, clearly “ ‘stands as an obstacle to the

accomplishinent and execution of the full purposes and

objectives of the Congress.’ ” (Jones v. Rath Packing Co.,

supra, }. 526.) It prevents the manufacturer from com-

municating the intended use and benefit of a hearing aid

to the potential user. The objective of the federal lew to

reach out to the hard of hearing because of their reluctance

to seek help is frustrated by this statute.

II. The statute and injunction infringe upon Appellant’s

right to freedom of speech under the First Amend-

ment of the United States Constitution.

1. Commercial speech is protected by the First Amend-

ment to the United States Constitution.

This Court has recently established the principle that

“commercial speech” is protected by the First Amendment

to the United States Constitution. Virginia State Board

of Pharmacy, et al. v. Virginia Citizens Conswmer Coun-

cu, Inc. (1976) 425 U.S. 748, 48 L.kid.2d 346, 96 S.Ct. 1817

(hereinafter referred to as “the Virginia case”).’ In

the Virginia case, a consumer organization brought suit

against the Virginia State Board of Pharmacy ehallenging

the validity under the First and Fourteenth Amendments

of a Virginia statute declaring it to be unprofessional con-

duet for a licensed pharmacist to advertise the prices of

prescription drugs. This Court struck down the statute

in an opinion which states, in part:

Advertising, however tasteless and excessive it

sometimes may seem, is nonetheless dissemination of

information as to who is producing and selling what

‘Subsequent to the Virginia case, numerous additional cases have

sustained free speech claims for advertising. E.g., Bates v. Arizona

State Bar, 433 U.S. 350, 53 L.Ed.2d 810, 97 $.Ct. 269-1; Linmark

Associates, Inc. v. Township of Willingboro, US. , 52

L,,Ed.2d 55, 97 S.Ct. 1614; Jacoby v. State Bar of California, 19 Cal.

3d 359, 377, 138 Cal. Rptr. 77; Board of Medical Examiners v. Ter-

minal-Hudson Electronics, 73 Cal.App.3d 376, 140 Cal.Rptr. 757;

Health Systems Agency of Northern Virginia v, Virginia State Board

of Medicine (E.D. VA. 1976) 424 F.Supp. 267.

product, for what reason, and at what price. So long

as we preserve a predominantly free enterprise econ-

omy, the allocation of our resources in large measure

will be made through numerous private economic de-

cisions. It is a matter of public interest that those

decisions, in the aggregate, be intelligent and well in-

formed, To this end, the free flow of commercial in-

formation is indispensable. (96 S.Ct. p. 1827).

2. The statute and the injunction are overly broad.

A. All representations for the purpose of inducing a

purchase are deemed advertising.

The definition of advertising in California Health and

Safety Code Section 26002 is extremely broad.

“Advertisement” means any representations, includ-

ing, but not limited to, statements upon the products,

its packages, cartons, and any other container, dis-

seminated in any manner or by any means, for the

purpose of inducing, or which is likely to induce, di-

rectly or indirectly, the purchase or use of any food,

drug, device or cosmetic.

This broad-sweeping definition clearly prohibits any

and all forms of expression, written or oral, intended to

induce a sale to the public of a drug or device of the type

mentioned. People v. Hohensee (1967) 251 Cal.App.2d

198, 59 Cal.Rptr. 234. Therefore, the effect of Section

26463, as construed and applied in this case, is to prohibit

the manufacturer of a hearing aid from informing the

consumer what his product does. The seller or distribu-

tor is similarly restricted. He can say “I sell hearing aids

for one hundred dollars. My store is located at 1 Main

Street”. But when the customer comes in and asks, “How

will it help me?”, he has to say, “I’m sorry, but I can’t

tell you.” This restriction is invalid under the Virginia

case,

B. There is no provision for obtaining permission to

advertise a drug or device.

Section 26463 is not mitigated by the provisions of See-

tion 26465 which contemplate the granting of permission

to advertise in certain cases, for such permission depends

upon the uncontrolled discretion of the Department. of

Public Health (“department”). Thus, Section 26465 states:

Whenever the department determines that an advance

in medical science has made any type of self-medica-

tion safe and effective as to any of the conditions,

disorders, or diseases named in Section 26463, the de-

partment shall, by regulation, authorize the advertise-

ment of any such drug or device as having a curative

or therapeutic effect for such disease, subject to such

conditions and restrictions as the department may

consider necessary to the interests of public health.

The statute affords no protection at all for the truthful

seller of a worthwhile drug or device. The department

must first “determine” that it is safe and effective. But

there is no requirement that the department hold a hear-

ing to make such determination and no provision for any

interested party to obtain such a hearing before any other

agency or tribunal, There is not even a duty imposed

upon the department to consider a particular drug or de-

vice."

There is no procedure to review the department’s exer-

cise of discretion or even to compel the exercise of any

discretion. Thus, there is no procedural safeguard against

“If the department does determine that a particular type of self-

medication is safe and effective, then it is supposed to authorize

advertisement thereof “by regulation”. The department is author-

ized in Section 102 to issue regulations pursuant to procedures sct

forth in the Government Code. Under these provisions, interested

parties may petition for the adoption of regulations, but the govern-

mental agency may deny the petition without a hearing. (See Calif.

Government Code Secs. 11426 and 11427.)

suppression of truthful information, and this renders the

statute unconstitutional.

In addition, Section 26465 would not even be applicable

to hearing aids because they are not “curative or thera-

peutic” devices.

C. The statute prohibits truthful representations as

well as false or misleading ones.

Falsity is not an element of the offense proscribed by

Section 26463. Neslen v. Board of Health (1945) 70 Cal.

App.2d 202, 160 P.2d 862.”

Accordingly the statute on its face is overbroad and a

claim of unconstitutionality on that ground should be enter-

tained. Appellant should be permitted to challenge the con-

stitutionality of the statute without a showing that its

particular advertisements were truthful and thus protected.

Such claims of facial overbreadth have been enter-

tained in cases involving statutes which, by their

terms, seek to regulate “only spoken words.” Gooding

v Wilson, 405 US 518, 520, 31 L Ed 2d 408, 92 S Ct

1103 (1972). See Cohen v California, 403 US 15, 29

L Ed 2d 284, 91 S Ct 1780 (1971); Street v New York,

394 US 576, 22 L Ed 2d 572, 89S Ct 1354 (1969) ; Bran-

denburg v Ohio, 395 US 444, 23 L Ed 2d 480, 89'S Ct

1827 (1969); Chaplinsky v New Hampshire, 315 US

568, 86 L Ed 1031, 62 S Ct 766 (1942). In such cases,

it has been the judgment of this Court that the pos-

sible harm to society in permitting some unprotected

speech to go unpunished is outweighed by the pos-

sibility that protected speech of others may be muted

and perceived grievances left to fester because of the

possible inhibitory effects of overly broad statutes. ...

"False and misleading advertising is covered by another section

of the Health and Safety Code, i.e., Section 26460, which states; “It

is unlawful for any person to disseminate any false advertisement of

any food, drug, device, or cosmetic. An advertisement is false if it

is false or misleading in any particular.”

Facial overbreadth claims have also been entertained

where statutes, by their terms, purport to regulate the

time, place, and manner of expressive or communica-

tive conduct, see Grayned v City of Rockford, supra, at

114-121, 33 L. Ed 2d 222; Cameron v Johnson, 390 US,

at 617-619, 20 L Ed 2d 182; Zwickler v Koota, 389 US

241, 249-250, 19 L Ed 2d 444, 88 S Ct 391 (1967);

Thornhill v Alabama, 310 US 88, 84 L Ed 1093, 60 S

Ct 736 (1940), and where such conduct has required

official approval under laws that delegated standard-

less discretionary power to local functionaries, result-

ing in virtually unreviewable prior restraints on First

Amendment rights. See Shuttlesworth v Birmingham,

394 US 147, 22 L Ed 2d 162, 89 S Ct 935 (1969) ; Cox

v Louisiana, 379 US 536; 553-558, 13 L Ed 2d 471, 85

S Ct 453 (1965); Kunz v New York, 340 US 290, 95

L Ed 280, 71 S Ct 312 (1951) ; Lovell v Griffin, 303 US

444, 82 L Ed 949, 58 S Ct 666 (1938).

(Broadrick v. Oklahoma (1973) 413 U.S. 601, 37

L.Ed.2d 830, 93 S.Ct. 2908.)

This Court’s pronouncements on the doctrine of over-

breadth in the newly protected area of commercial speech

have heretofore been somewhat guarded. Thus, in Bates v.

State Bar of Arizona, 433 U.S. 350, 53 L.ld.2d 810, 97 S.Ct.

2691, the Court stated,

... the justification for the application of overbreadth

analysis applies weakly, if at all. in the ordinary com-

mercial context. As was acknowledged in Virginia Phar-

macy Board v Virginia Consumer Council, 42 US, at

771 n 24, 48 L Ed 2d 346, $6 S Ct 1817, there are “eom-

mon-sense differences” between commercial speech and

other varieties. See also id., at 775-781, 48 L Ed 2d 346,

96S Ct 1817 (concurring opinion). Since advertising is

linked to commercial well-being, it seems unlikely that

such speech is particularly susceptible to being erushed

by overbroad regulation. (433 U.S. 380-381)

Appellant submits, however, that there are compelling

reasons in the instant case for applying the overbreadth

doctrine. First, it involves public health and Congress and

the FDA have indicated a definite desire to have informa-

tion regarding the performance of hearing aids dis-

seminated to potential users. The state statute clearly

conflicts with the federal Act and frustrates its objective.

Secondly, the desired speech is not only “susceptible to

being crushed by overbroad regulation”, it has in fact been

crushed. The statute, as construed and applied by the Cali-

fornia courts, restrains appellant from all performance

claim advertising. And of course if appellant is restrained

then all other manufacturers will be similarly restrained.

Such restraint is intolerable. The state may not use its

police power to prohibit all performance claim advertising

of medical drugs or devices. Less restrictive alternatives,

e.g. California Health and Safety Code Section 26460 pro-

hibiting false and misleading advertising, are available to

the state. Other reasonable means are also spelled out in the

federal regulations, e.g., the requirement of a medical evalu-

ation before a sale may be made.

In an area affecting First Amendment rights precision of

regulation is the touchstone, and statutes must be narrowly

drawn so that the precise evil is exposed.

Keyishian v. Board of Regents (1967) 385 U.S. 589,

17 L.Ed.2d 629, 87 S.Ct. 675;

Interstate Circuit, Inc. v. Dallas (1968) 390 U.S. 676,

20 L.Ed.2d 225, 88 S.Ct. 1298;

Shuttlesworth v. Birmungham (1968) 394 U.S. 147, 22

L.Ed.2d 162, 89 S.Ct. 935;

Elfbrandt v. Russell (1966) 384 U.S. 11, 16 L.Ed.2d

321, 86 S.Ct. 1238;

Griswold v. Connecticut (1965) 381 U.S. 479, 14 L.Ed.

2d 510, 85 S.Ct. 1678.

Where First Amendment rights are involved, the courts

inust examine and test statutes more closely than otherwise.

Ashton v. Kentucky (1966) 384 U.S. 195, 16 L.id.2d 469, 86

S.Ct. 1407.

Appellant submits that Section 26463 cannot withstand

the close scrutiny required by First Amendment standards.

It is overbroad on its face and must be struck down.

D. The injunction goes beyond the particular adver-

tising which was exhibited to the court and pre-

sents a further problem of overbreadth.

Because the injunction merely paraphrases the statute,

it goes beyond the particular advertising which gave rise to

the action and is also patently overbroad. Indeed the injune-

tion presents the problem of overbreadth in a more com-

pelling way than the statute standing alone. The over-

breadth doctrine permits litigants “. .. to challenge a statute

not because their own rights of free expression are violated,

but because of a judicial prediction or assumption that the

statute’s very existence may cause others not before the

court to refrain from constitutionally protected speech or

expression.” Broadrick v. Oklahoma (1973) 413 U.S. 601,

612, 37 L.Kd.2d 830, 93 S.Ct. 2908. But here appellant’s own

right of free expression is directly violated by the injune-

tion. Therefore, appellant submits that the overbreadth

doctrine becomes all the more applicable herein, As stated

in Carroll v. Commissioners of Princess Anne (1968) 393

U.S. 175, 183-184, 21 L.Ed.2d 325, 89 S.Ct. 347,

An order issued in the area of First Amendment rights

must be couched in the narrowest terms that will

accomplish the pin-pointed objective permitted by con-

stitutional mandate and the essential needs of the

public order. In this sensitive field, the State may not

employ “means that broadly stifle fundamental per-

sonal liberties when the end can be more narrowly

achieved.” Shelton v. Tucker, 364 U.S. 479, 488, 5 LL.

Kd.2d 231, 257, 81 S.Ct. 247 (1969). In other words,

the order must be tailored as precisely as possible to

the exact needs of the case.

E. The extent of First Amendment protection for

product performance claims as opposed to price in-

formation should be spelled out.

The Court’s decisions in the commercial speech area have

heretofore been limited to situations involving price infor-

mation. Nevertheless, as stated in Virginia, supra, 425 U.S.

at 765,

Advertising, however tasteless and excessive it

sometimes may seem, is nonetheless dissemination of

information as to who is producing and selling what

product, for what reason, and at what price. So long

as we preserve a predominantly free enterprise econ-

omy, the allocation of our resources in large measure

will be made through numerous private economic deci-

sions. It is a matter of public interest that those deci-

sions, in the aggregate, be intelligent and well

informed. To this end, the free flow of commercial

information is indispensable.

As this language indicates, there is no logical reason why

information concerning the performance of the product

should be any less protected than information concerning

the price. Common sense tells us that unless the nature

and performance of the product can be communicated, the

free flow of price information will be of little value. Again

appellant submits that this is especially true in a case where

a federal policy in favor of disseminating the information

has been enunciated.

3. Sections 26463 and 26465 constitute an invalid prior

restraint on freedom of expression.

Sections 26463 and 26465 prohibit the manufacturer and

the seller of a drug or device of the types described from

making any statement, even if true, for the purpose of

inducing a sale thereof unless the department has first au-

thorized the statement. This is a classic system of prior

restraint of expression. In light of the Virginia case, it

comes before the court with a heavy presumption against

its constitutional validity. Heller 7. New York (1973) 413

U.S. 483, 37 L.Eid.2d 745, 93 S.Ct. 2789; Organization for

a Better Austin v. Keefe (1971) 402 U.S. 415, 29 L.Ed.

2d 1, 91 S.Ct. 1575.

The presumption may be overcome only where ade-

quate safeguards against suppression of truthful in-

formation have been provided. Thus in Poulos v. New

Hampshire (1953) 345 U.S. 395, 97 L.Ed. 1105, 73 S.Ct.

760, reh. den. 345 U.S. 978, 97 L.Ed. 1392, 73 S.Ct. 1119,

an ordinance requiring a license to conduct religious serv-

ices in a park was held valid because of the ready avail-

ability of judicial relief to test the reasons for refusal.

But in Freedman v. Maryland, supra, the prior licensing

of motion pictures was not allowed where the exhibitor

was required to withhold showing the film until he had

first obtained a judicial determination that it was not ob-

scene with no assurance that such determination would be

speedy. See also Staub v. Barley (1958) 355 U.S. 313, 2

L.Ed.2d 302, 78 S.Ct. 277, and Neimotko v. Maryland

(1951) 340 U.S. 268, 95 L.Ed. 267, 71 S.Ct. 325.

Here the California legislature has enacted a statute

which imposes prior restraints on commercial speech and

provides no safeguards at all against suppression of

truthful information. A statute having this effeet cannot

be sustained.

(handi) Opinions, Judgment, and Orders

In addition to the opinion of the Court of Appeal which

is appended as [ixhibit .\, the opinion and judgment of

the Superior Court are appended hereto as Exhibits B

and C. The order of the Court of Appeal denying rehear-

ing is appended hereto as Exhibit D and the order of

the Supreme Court of California denying a hearing is ap-

pended hereto as Exhibit FE.

A copy of the Notice of Appeal to this Court which was

filed in the Court of Appeal is appended hereto as Ex-

hibit F.

Respectfully submitted,

StanLey WALsH,

JORDAN, WALSH, LAWRENCE,

Dawson & CARBONE,

Attorneys for Appellants Dahlberg

Electronics, Inc., and Detection

Sciences, Inc.

(Exhibits Follow)

Exhibit A

CERTIFIED FOR PUBLICATION

In the Court of Appeal

State of California

First Appellate District,

Division Four

1 Civil No. 40017

(Sup.Ct.No. 51868)

George Kievlan, et al.,

Plaintiffs, Respondents and

Appellants,

vs.

Dahlberg Electronics, a corporation, et al.,

Defendants, Appellants and

Respondents.

[Filed Mar. 21, 1978]

OPINION

Dahlberg Electronics, Ine., and Detection Sciences, Inc.,

defendants, appellants and respondents,’ appeal from a

judgment? permanently enjoining them “from advertising

their hearing aids in California by representing that said

hearing aids have any effect on diseases or disorders of

the ear, or auditory apparatus, including hearing loss and

‘As both parties are appellants and respondents, for literary con-

venience we wili refer to Dahlberg Electronics, Inc., and Detection

Sciences, Inc., as defendants, and Kievlan and the other senior citi-

zens as plaintiffs.

*The judgment was entered following plaintiffs’ motion for sum-

mary judgment. The defendants agree there is no contested issue

of fact in the case, only issues of law.

deafness.” George Kievlan, et al., plaintiffs,* respondents

and appellants, have appealed from the judgment on the

ground that attorney’s fees were not awarded.

Dahlberg Electronics, Inc., is a Minnesota corporation

which manufactures “Miracle Ear” and “Magic Ear” hear-

ing aids. Dahlberg is a wholly owned subsidiary of Detec-

tion Sciences, Ine., a Minnesota corporation. Dahlberg sells

a substantial number of hearing aids in California through

retail hearing aid dealers. Dahlberg advertises its hearing

aids extensively in national publications. Other advertise-

ments are distributed by Dahlberg to its local dealers.

Defendants have appealed from the judgment on the

grounds (1) the trial court erred in its construction and

application of section 26463 of the Health and Safety Code;

(2) that the statute is unconstitutional; and (3) that state

regulation of hearing aid advertising has been preempted

by federal law and regulations.

Plaintiffs have appealed on the ground that the judgment

did not award attorney’s fees.

Defendants contend that the injunction does not merely

prohibit advertising that their hearing aid would have a

curative or therapeutic effect but that it also prohibits them

from advertising that their hearing aids have any effect,

including . compensatory effect on hearing loss. Defendants

argue that section 26463 is concerned with false and mis-

leading representations and that it is not the intent of the

code section to prohibit advertising that a product will com-

pensate for a physical disability without representing it will

cure or remedy it. The difficulty with defendants’ argument

is that neither statute nor the judgment make any reference

Plaintiffs allege that they are six senior citizens who have

brought this suit on behalf of themselves and the general public.

to compensatory effect, so the argument is not relevant.

The code section, 26463, subdivision (m), provides: “It is

unlawful for any person to advertise any drug or device

represented to have any effect in any of the folowing con-

ditions, disorders, or diseases:

“

one

“(m) Diseases or disorders of the ear or auditory appa-

ratus, including hearing loss and deafness.”

“The statute is clear and unambiguous and does not

exempt any so-called ‘compensatory effect.’ There is an

exception included in the Sherman Food, Drug and Cos-

metics Law, which authorizes advertising of drugs and

devices having a curative or therapeutic effect under cer-

tain conditions (4 26465),* however, this section makes no

mention of compensatory effect and there is no claim by

defendants that they had received any such authorization

from the department exempting their product.”

Defendants also claim a hearing aid is not a “device”

within the meaning of Health and Safety Code section

26009, which provides: “ ‘Device’ means any instrument,

apparatus, or contrivance, including any component part,

product, or by-product of a device, or accessory, which is

used, or intended for use, for any of the following:

“(a) In the diagnosis, cure, mitigation, treatment, or pre-

vention of disease in man or any other animal.

‘Section 26465 of the Health and Safety Code provides:

“Whenever the department determines that an advance in

medical science has made any type of self-medication safe and

effective as to any of the conditions, disorders, or diseases

named in Section 26463, the department shall, by regulation,

authorize the advertisement of any such drug or device as hav-

ing a curative or therapeutic effect for such disease, subject to

such conditions and restrictions as the department may consider

necessary to the interests of public health.” :

“(a) To affect the structure or any function of the body

of man or any other animal.” Without question, a hearing

aid is an instrument or apparatus used in the mitigation of

hearing diseases and affects the bodily functioning of the

person using it. We also note that Business and Professions

Code section 3305 defines a hearing aid as: “... any wear-

able instrument or device designed for, or offered for the

purpose of, aiding or compensating for impaired human

hearing.”

Defendants contend that hearing aid dispensers are regu-

lated by provisions of Division 2, chapter 7.5 (commencing

with § 3300) of the Business and Professions Code. This

chapter provides for the licensing of persons who engage

in the practice of fitting and selling hearing aids. Defend-

ants do not contend that they are licensed under this act.

Furthermore, defendants cite no authority to support their

positions that chapter 7.5 and the Sherman Act are mutually

exclusive. They are in fact complimentary and in a proper

case both can apply.

Defendants contend that section 26463 denies freedom of

speech as guaranteed by the First Amendment of the United

States Constitution, citing Va. Pharmacy Bd. v. Va. Con-

sumer Council (1976) 425 U.S. 748. However, we need not

reach this problem.

The judgment enjoined defendants from advertising their

hearing aids by representing that the hearing aids have any

effect on diseases or disorders of the ear including hearing

loss and deafness. The Sherman Act, section 26460, declares

it is unlawful for any person to disseminate any false adver-

tisement of any device and declares an advertisement is

false if it is false or misleading in any particular. It is clear

from the copies of the advertisements that are included in

the record that the advertisements were misleading in that

they convey the impression that the hearing aid would have

a curative or therapeutic effect. The defendants in their

brief concede that hearing aids do not have a curative or

therapeutic effect. The Virginia State Board of Pharmacy

case is of no help to defendants. As a concurring opinion

points out the court’s decision did not preclude state and

federal regulation of false or deceptive advertising. The

injunction is thus proper.

III

Defendants’ third contention is that state regulation of

hearing aid advertising has been preempted by federal law

and regulation.” On May 28, 1976, the Medical Device

Amendments of 1976 (90 Stat. 540) were enacted, amend-

ing the Federal Food, Drug and Cosmetics Act. (21 U.S.C.,

§ 301 et seq.) As amended, section 360K of that act

provides:

“(a) Except as provided in subsection (b) of this see-

tion, no State or political subdivision of a State may estab-

lish or continue in effect with respect to a device intended

for human use any requirement—

“(1) which is different from, or in addition to, any

requirement applicable under this chapter to the device,

and

“(2) which relates to the safety or effectiveness of the

device or to any other matter included in a requirement

applicable to the device under this chapter.

*This point was timely raised notwithstanding the fact that it was

mentioned for the first time in defendants’ closing brief. The imple-

menting regulations were not approved until February 10, 1977, two

months after defendants had filed their opening brief. Where a

point of law which is determinative of an appeal is announced after

the filing of the opening brict, the appellaat is permitted to present

the point in a closing or supplemental brief. (Meier v. Ross General

Hospital (1968) 69 Cal.2d 430, 423-424, fn. 1.)

“Exempt Requirements

“(b) Upon application of a State or a political subdivi-

sion thereof, the Secretary may, by regulation promulgated

after notice and opportunity for an oral hearing, exempt

from subsection (») of this section, under such conditions

as may be prescribed in such regulation, a requirement of

such State or political subdivision applicable to a device

intended for human use if—

“(1) the requirement is more stringent that a require-

ment under this chapter which would be applicable to the

device if an exemption were not in effect under this sub-

section; or

“(2) the requirement—

“(A) is required by compelling local conditions, and

“(B) compliance with the requirement would not cause

the device to be in violation of any applicable requirement

under this chapter. June 25, 1938, ¢. 675, § 521, as added

May 28, 1976, Pub.L. 94-295, § 2, 90 Stat. 574.” Implement-

ing regulations concerning hearing aid devices were

approved by the Food and Drug Administration on Feb-

ruary 10, 1977, and became effective August 15, 1977. (21

C.F.R., §§ 801.420, 801.421.) According to the language of

section 360K, the preemptive effect of the act upon state

action, with respect to hearing aids, is to be determined by

the three-way test (1) whether the state action is a

“requirement” and, if it is, (2) whether it is “different

from, or in addition to” any requirement of the act on that

subject and (3) whether it “relates to the... effectiveness”

of hearing aids, (21 U.S.C., § 360K, subd. (a).) Because

the three factors appear in a conjunctive context (see

ibid.), all three must appear before a court may declare

that the act preempts Health and Safety Code section

26463, subdivision (m), in the hearing aid business.

Section 26463, subdivision (m), meets the third test to

the categorical extent that it “relates to the... effective-

ness” of hearing aids by prohibiting representations on

this subject in copy which advertises them for sale. But,

because it does this and no more, it fails the first test of

preemption because it is a flat prohibition: it is not a

“requirement.”

If it may be treated as a “requirement,” its effect is

nevertheless limited to the advertising of hearing aids for

sale. The federal act reaches the subject of advertising,

but of “vestricted devices” only. (21 U.S.C., § 352, subd.

(r).) By the act’s terms, “restricted devices” are those

which the Secretary of Health, Education and Welfare

determines, by regulation, may be sold upon licenses-

practitioner prescription only. (21 U.S.C., § 360), subd. (e)

(1). For congressional intent on this precise subject, see

1976 U.S. Code Cong. & Admin. News, No. 3, Medical

Device Amendments of 1976 {commencing at p. 1070], pp.

1086, 1113-1114.)

Defendants have not shown that the secretary has clas-

sified hearing aids as “restricted devices.” The federal act

itself thus includes no “requirement” concerning the adver-

tising of hearing aids. No such “requirement” appears in

the implementing regulations adopted by the secretary,

which have nothing to do with advertising. (See 21 C.F.R.,

§§ 801.420-801.421.) Health and Safety Code section 26463,

subdivision (m), cannot be “different from, or in addition

to,” a “requirement” of the act which does not exist. The

second test of its preemption by the act therefore fails as

well. Thus, section 26463 is not preempted by federal law.

Plaintiffs contend that the trial court erred in refusing

to award them attorney’s fees. They contend the (rial court

had the power to award attorney’s fees under three

theories: (1) the “substantial benefit” rule, (2) the private

attorney general concept, and (3) the newly enacted Code

of Civil Procedure section 1021.5, which became effective

January 1, 1978.

Applicability of each of these theories of recovery

depends on the faets of the particular case. At the time

this case was tried, August 1975, Mandel v. Hodges (1976)

54 Cal.App.3d 596, and Serrano v. Priest (1977) 20 Cal.3d

25, modified 20 Cal.3d 190a, had not been decided and Code

of Civil Procedure section 1021.5 had not been enacted.

Neither the trial court nor the attorneys had the benefit of

these authorities before them and ihe court specifically

based its ruling, denying attorney’s fees, on the apparent

state of the law at that time. The judgment must, there-

fore, be reversed as to the issue of attorney’s fees and the

matter remanded to the trial court on that issue for further

proceedings.

Plaintiffs contend that Code of Civil Procedure section

1021.5 would not be applicable as it was not in effect at the

time of trial. As stated in Olson v. Hickman (1972) 25 Cal.

App.3d 920, 922: “Respondent...invokes the general rule

of construction which frowns upon statutory retroactivity

in the absence of a clear legislative direction. The rule has

uo application here. Section 800 [of the Government Code ]°

classes itself as an ancillary provision, creating no new

cause of action. It is procedural only. A lawsuit is governed

by a change in procedural rules made during its pendency,

and the suit is pending until its final determination on

appeal.” Section 1021.5 does not create a new cause of ac-

tion; it is ancillary to the underlying cause. The cases cited

by defendants are not in point, they involve changes that

“Government Code section 800 provides for the award of attor-

ney’s fees under certain circumstances in any civil action against a

government agency or officer.

affect the cause of action. Section 1021.5 is not rendered

inapplicable to the present case solely because of its effec-

tive date.

The judgment is reversed insofar as it does not provide

for attorney’s fees and the cause is remanded to the trial

court for further proceedings on this issue only. In all other

respects the judgment is affirmed. Plaintiffs to recover costs

on appeal.

CERTIFIED FOR PUBLICATION

R Caldecott, P. J.

We concur:

Rattigan, J.

Ragan, J.°

* Assigned by the Chairperson of the Judicial Council.

Exhibit B

Superior Court of the State of California

for the County of Santa Cruz

No. 51868

George Kievlan, et al.,

Plaintiffs,

VS.

Jolin Maier, et al.,

Defendants.

[Filed Aug. 21, 1975]

OPINION

This is an action brought by six senior citizens on be-

half of themselves and as private attorneys general

against Dahlberg Electronics, a manufacturer of hearing

aid devices, and against local dispensers of those devices.

The plaintiffs’ claims for damages against the dispensers

have been settled. By this motion for summary judgment,

the Court is asked to determine the last remaining issue;

namely, the legality of the manufacturer’s advertisements

of its hearing aids. The defense agrees that there are no

contested issues of fact so that the remedy of summary

judgment is proper. .

The Law.

Plaintiffs’ case is based on Health & Safety Code

§ 26463(m) which provides as follows:

“Tt is unlawful for any person to advertise any drug

or device represented to have any effect in any of the

following conditions, disorders, or diseases:

(m) Diseases or disorders of the ear or

auditory apparatus, including hearing loss

and deafness.

Also relevant are the following sections:

“$ 26464. An advertisement which is not unlawful

under § 26460 [false advertising] is not unlawful

under § 26463 if it is disseminated only to members

of the medical, dental, pharmaceutical, or veterinary

professions, or appears only in the scientifie period-

icals of these professions, or is disseminated only for

the purpose of public health education by persons not

commercially interested, directly or indirectly, in the

sale of such drugs or devices.”

“$ 26465. Whenever the department determines that

an advance in medical science has made any type cf

self-medication safe and effective as to any of the

conditions, disorders, or diseases named in § 26463, the

department shall, by regulation, authorize the adver-

tisement of any such drug or device as having a cura-

tive or therapeutic effect for such disease, subject to

such conditions and restrictions as the department

may consider necessary to the interests of public

health.”

“§ 26009. Device. “Device” means any instrument, ap-

paratus, or contrivance, including any component,

part, product, or by-product of a device, or accessory,

which is used, or intended for use, for any of the

following:

(a) In the diagnosis, cure, mitigation, treatment, or

prevention of disease in man or any other ani-

mal.

(b) To affect the structure of any function of the

body of man or any other animal.”

The Advertisements.

Dahlberg Electronics advertises its hearing aids exten-

sively in national publications. One ad in comie strip for

is correctly deseribed in plaintiff’s brief as follows:

“. . it depicts the story of a mother who cannot

understand the words at her daughter’s graduation.

Her doctor has told her she has mild nerve deafness,

but he can not help her. She then reads a circular

which implies that Dahlberg Hearing Aids can help

mild nerve deafness. Visiting a Dahlberg dealer, her

husband queries if anything can be done about her

going deaf. The dealer tells her that ‘medical experts

generally agree that no effective cure has yet been

found for this type of hearing loss.’ She responds in

despair, ‘You mean it’s hopeless?’ Smiling, the dealer

answers, ‘It might have been different years ago, Mrs.

Goodwin. But now, fortunately, modern science has

created a tiny new electronic device made to help in

most cases like yours...’ The story then goes on to

show how for the first time in years she can under-

stand words clearly because of her Dahlberg Miracle

Kar hearing aid. The reader is asked to send in a

posteard which will tell her (or him) ‘How I may be

able to hear again more clearly in both ears without

using hearing aids that have cords or tubes.”

Other advertisements stress that Dahlberg’s “Miracle

Ear” hearing aid is designed for those who suffer from

nerve impairment or mild nerve deafness and that the de-

vice will allow the wearer to hear more clearly.

The advertising campaign has been effective. Between

January 1, 1972 and February 14, 1973, 11,903 posteard

responses were received by Dahlberg from California res-

idents who were then referred to local Dahlberg dealers.

Plaintiffs’ Contention.

Plaintiffs’ position can be stated in the form of a syl-

logism:

1. The statute prohibits the advertising of a device

represented to have any effect on disorders of the ear

including hearing loss.

2. Defendant’s advertising claims effectiveness to com-

pensate for hearing loss in cases of nerve impairment or

nerve deafness.

3. Therefore, the statute prohibits advertising such as

defendant’s.

Defendant’s Contention.

It is the defendant’s basic position that § 26463 prohibits

only the claim that the product or device has therapeutic

or curative effect as distinguished from the assertion of

a claim that the device merely compensates for the dis-

order or condition the way a prosthesis does for loss of

a limb. This argument is drawn primarily from § 26465

which provides that if the Department of Health deter-

mines a type of self-medication to be medically safe for

any of the conditions listed in § 26463, it may authorize

the advertisement of the drug or device “as having a

curative or therapeutic effect ...”

The defendant’s contention is not persuasive.

One. The language of § 26463 is sweeping; it prohibits

the advertising of a device represented to have any effect.

The use of the word “any” in a statute negatives the sug-

gestion that the law was to be given a restrictive interpre-

tation. Hmmolo v. So. Pacific, 91 C.A.2d 87 (1949); In

Re Wymans Estate, 208 C.A.2d 489 (1962).

Two. Granting that § 26463 and § 26465 have to be

construed together, defendant is not aided. The words

“curative” and “therapeutic” are used in the disjunctive

in § 26465. Hach has its distinctive meaning; therapy is

obviously a far broader and more generic concept than

eure, Products or devices which compensate for a loss

accomplish a therapeutic purpose, as that term is ordi-

narily understood. A thyroid pill compensates for thyroid

deficiency ; taking such medication does not cure such dis-

order but it has the therapeutic effect of permitting a per-

son suffering from that condition to lead a normal life.

The same ean be said of insulin, crutches, prostheses and

hearing aids.

Three. That § 26463 should be given a broad construc-

tion is also apparent from the legislative poticy underlying

the Pure Drugs Act. Basically the purpose of that legisla-

tion was to (1) encourage the general public to seek pro-

fessional care for the conditions listed; and (2) prevent

the commercial exploitation of the general public by the

advertising of drugs or devices which may be useful but

whose efficacy in particular cases cannot be determined by

laymen. § 26464, § 26465; People v. Ryan, 101 C.A.2d 927,

931 to 932 (1951). Those policy considerations clearly

apply to hearing aids, devices which help some persons

suffering from impaired hearing and do not help others.

As people with hearing defects desperately want help, they

are especially suggestible. Finally, the devices are expen-

sive; and they are needed primarily by the elderly, a class

traditionally the objects of legislative solicitude and en-

titled to it.

Attorney’s Fees.

Plaintiffs seek attorney’s fees because they brought this

action as private attorneys general; they claim that their

efforts culminated in a decision yielding substantial bene-

fits to a broad class of citizens. The doctrine authorizing

the award of attorney’s fees under those circumstances is

entirely the creature of the federal courts, as the California

Supreme Court has pointed out. D’Amico v. Board of

Medical Examiners, 11 €.3d 1, 27 (1974). Now that the

U. S. Supreme Court has overruled those decisions of the

lower federal courts, the legal foundation for such an

award has been removed. Aleyska Pipe Line Serv. v. Wild-

erness Soc., ........ Le eens , 44 L.Ed.2d 141, 161, footnote

46 (1975).

An injunction will issue restraining defendant Dahlberg

from making any performance claim in the advertising of

its hearing aids. Nothing contained herein prec'ades defend-

ant from advertising its places of business, that Dahlberg

hearing aids are sold there, the prices of the instruments or

any other information of that nature.

Dated: August 21, 1975.

HARRY F. BRAUER

Judge of the Superior Court

Exhibit C

Superior Court of the State of California

for the County of Santa Cruz

No. 51868

jeorge Kievlan, Eris Gofinch, Charles Har-|

rold, Mary Walker, Gladys Faustine,

Minnie Carp, individually, and on behalf

of the general public,

Plaintiffs,

vs.

John Maier, L. A. Stacey, Professional

Hearing Aid Center, an individual Pro-

prietorship ; Dahlberg Electronics, a Cor-

poration; Detection Science, a Corpora-

tion; and Doe 1 through Doe 20,

Defendants.

[Filed Mar. 22, 1976]

JUDGMENT

The above-entitled cause canie on pursuant to Plaintiffs’

Motion for Summary Judgment on August 13, 1975, in

Department ITI of the above-entitled Court, the Honor-

able Harry F. Brauer, Judge presiding. Plaintiffs appeared

by James Rumble, Diane Greenberg and Richard Pearl,

their attorneys, and Defendants Dahlberg Electronics, Inc.

and Detection Sciences, Inc., appeared by their attorneys,

Thomas F. Nelson and Fred Hollander.

Said cause having been heard, documentary evidence pre-

sented by both plaintiffs and defendants having been re-

ceived and admitted without objection, the Court having

rendered its decision in favor of plaintiffs and against

defendants, as reflected in its opinion of August 21, 1975,

the Court having caused to be made and filed its written

Findings of Fact and Conclusions of Law.

It Is Ordered, Adjudged And Decreed that Plaintiffs

George Kievlan, Eris Gofinch, Charles Harrold, Mary

Walker, and Gladys Faustine have judgment against De-

fendants Dahlberg Electronics, Inc. and Detection Sciences,

Inc. and that Defendants be and they hereby are perma-

nently enjoined and restrained from advertising their hear-

ing aids in California by representing that said hearing aids

have any effect on diseases or disorders of the ear, or audi-

tory apparatus, including hearing loss and deafness.

Dated: March 17, 1976

HARRY F. BRAUER

Judge of the Superior Court

Judgment entered on March 22, 1976, in Judgment Book,

Vol. 148, page 320.

RICHARD C. NEAL

Clerk

By: JOAQUINA AZEVEDO

Deputy

Approved as to Form:

By: /s/ THOMAS F. NELSON

Attorney for Defendants

Exhibit D

In the Court of Appeal

State of California

First Appellate District

Division Four

No. 40017

George Kievlan, et al.,

Plaintiffs, Respondents and Appellants,

vs.

Dahlberg Electronics, Inc., et al.,

Defendants, Appellants and Respondents.

BY THE COURT:

The petition for a rehearing filed in the above entitled

cause is hereby denied.

Dated: April 14, 1978

Caldecott, P.J.

Exhibit E

\ Order Due

June 19, 1978

In the Supreme Court

of the State of California

In Bank

Kievlan et al

Plaintiffs and Appellants

Dahlberg Electronics et al

Defendants and Appellants

Bird, C.J., did not participate.

[Filed Jun 15, 1978]

ORDER DENYING HEARING

After Judgment by the Court of Appeal

1st District, Division 4, Civil No. 40017

Defendant’s petition for hearing DENIED.

Manuel, J., is of the opinion that the petition should be

granted.

TOBRINER

Acting Chief Justice

Exhibit F

Stanley Walsh, Esq.

David P. Dawson, Esq.

Michael! P. Carbone, Esq.

Jordan, Walsh, Lawrence, Dawson

& Carbone

1249 Russ Building

235 Montgomery Street

San Francisco, California 94104

Telephone: (415) 392-4142

In the Court of Appeal

State of California

First Appellate District

Division Four

1 Civil No. 40, 017

George Kievlan, et al.,

Appellees,

vs.

Dahlberg Electronics, Inc., et al.,

Appellants.

[Filed Sep. 1, 1978]

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

To the Clerk of the Above Entitled Court:

Notice Is Hereby Given that Dahlberg Electronics, Inc.

and Detection Sciences, Inc., the appellants above-named,

hereby appeal from the final Judgment of the Court of

Appeal of the State of California, affirming the Judgment

of the Superior Court of the State of California, entered

in this action on March 21, 1978, and which became final

on June 15, 1978.

This appeal is taken pursuant to 28 U.S.C. § 1257(2).

Dated: August 31, 1978.

Stanley Walsh

David P. Dawson

Michael P. Carbone

Jordan, Walsh, Lawrence, Dawson

& Carbone

By /s/ MICHAEL P. CARBONE

Attorneys for Appellants

(Proof of Service omitted)

ae et

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.