The August 18, 2015 opinion conflicts with the Court of Appeal's en banc decision in American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014)), as well as Supreme Court precedent. In particular, the Court of Appeal panel incorrectly refused to apply the First Amendment standard set out in Zauderer v. Office of Disciplinary Counsel (471 U.S. 626 (1985)) in this case as it had correctly done in American Meat Institute.

The August 18, 2015 opinion also addresses issues of exceptional importance. The panel majority's unprecedented holding that Zauderer applies only to compelled disclosures in advertisements and product labels impacts the free flow of information and the First Amendment's interest in promoting informed decisionmaking. This limitation on Zauderer would have potentially far reaching implications for challenges to governmental disclosure requirements, including under the federal securities laws, as many of these requirements do not arise in the context of advertising and labeling.