BOSE CORPORATION V.CONSUMERS UNION OF THE UNITED STATES:
PRODUCT CRITIQUES AND THE FIRST AMENDMENT
Vincent Brannigan, 1 , Bruce Ensor , 2 Un iversity of Maryland
~~~~~~~~~--'ABSTRACT._.,~~~~...,-----,~~~-
they seemed to move ; ( 3) that their movement was
"about the room".
I n Bose Corp v . Consumers Union of United States
Inc. , the Supreme Court extended broad First
Amendment protection to statements made by the
defendant Consumers Union Inc. concerning speaker
systems manufactured by the corporate plaintiff
Bose. In a landmark decision , the procedural
protection afforded by the First Amendment was
broadened to i nclude comprehensive appel l ate
review of all c ritical issues. While the Court
did not address all issues in the case , logic from
its past decisions argues that consumer-oriented
criticism should be judged under the liberal
standards granted to political speech under the
First Amendme nt.
THE LAW OF LIBEL AND PRODUCT DISPARAGE:MENI'
Product disparagement is a tort action where the
plaintiff must prove that a false statement
concerning the nature and quality of the product
was made by the defendant.[2, sec 623 ] Product
disparagement is ana logous to defamation, however
the two actions differ in several respects.
Defamation includes the general areas of libel and
slander .[22]
Corporations can be defamed
[ 8, 15, 16, 17,21 ] However, corporate defamation
relates to the character of the corportion , its
morality or ability.
Product di sparagement is
more analogous to the law of unfair trade
practices and relates to false or misleading
criticism of a product. [18] The damages which can
be awarded in a product disparagement action are
considerable.
INI'ROOOCTION
Many consumer organizations engage in the
critici s m of products or services by various
vendors. One response by the vendor may be to
threaten or begin a l awsuit, hoping to stifle the
criticism. These cases often do not get to the
higher courts because consumers can rarely afford
the legal fees to defend themselves. Other cases
are disposed of on the grounds that the critique
was essentially opinion, rather than a statement
of fact. The BOSE case was unusual in that all
courts involved treated the critique as a factual
statement , and both sides were willing to bring
the case t hrough the entire court system.
$)SE is the first product disparagement case in
the long line of Supreme Court decisions balancing
private rights against the First Amendment.
The leading Supreme Court opinion regarding First
Amendment libel law is the case of New York Times
v. Sullivan [19 ]. In N.Y.TIMES the Court made two
key distinctions. The first was between public
fi gures and private persons.
Under N.Y.TIMES,
public figures are expected to bear a certain
level of harsh, even inaccurate criticism, in
order to vindicate the right of the public to
robust and open debate. Second, the court defined
the level of criticism by setting a standard of
"actual malice". Under this standard , i f the
p laintiff is a public figure , the plaintiff must
prove not only that the statement is defamatory
and false, but that the author knew it was false,
or acted with reckless disregard of the truth.
FACTS OF THE CASE
In a May 1970 issue of Consumer Reports, the
defendant's wide ly circulated magazine , the
defendant made the following statements concerning
the Bose loudspeaker system:
Worse , individual instruments heard
through the Bose system seemed to grow
to gigantic proportions and tended to
wander about the room. For instance , a
violin appeared to be 10 feet wide and a
piano stretched from wall to wal 1. With
orchestral music , such effects seemed
inconsequential. But we think they might
become
a nnoying when listening to
soloists [3 ,p. 1253 ] .
OOSE:THE LOWER COURT DEX::ISIONS
In an extensi ve trial at the district court level
Bose prevailed. The district court applied the
t\\0- tiered N.Y.TIMES test to find Consumers Union
liabl e . First it fou nd that Bose was a "public
figure". Bose did not contest t his finding , but
it is crucial to the decision.
Bose Corporation i n stituted a product
disparagement action against Consumers Union
claiming three distinct fa l sehoods about
instruments heard through the Bose system: (1)
that their size seemed grossly enlarged; (2) that
The court then turned to the issue of "actua l
malice" .
The court listened to e xtensive
testimony from the engineers who conducted t he
test. '!he court, sitting as a factfinder without
a jury , did n ot believe the chief engineer
accurately reported what he heard. On that basis
the court determi ned that the arti c l e was fal se,
and t hat the engineer (and , by l aw, Cons umers
1 Associate Professor ,Consumer I.aw, Department of
Textiles and Consumer Econcmi cs.
2 Ph.D Candidate, Dept. of Textiles and Consumer
Economics , J .D. Candidate, U. of Bal timore.
202
Unioo) knew it was false. To the trial court, this
soums move around the room and hearing
them wander back and forth fits easily
within the breathing space that gives
life to the First Amendment. (5, p. 1966-
was sufficient to prove liability.[3]
Consume rs Union appealed, and t h e federal
appellate court r eversed. (4) The court he ld that
it could conduct an independe nt review of both
facts am l aw, t o determine whether the district
court had made an e rror.
This is a n e xtreme l y
unusual proceeding, since normally the conclusion
of a lowe r court on a factual issue , such as
knowledge of fal sity, would not be reexamined by
an appellate court. The appellate court focused
on Consumers Uni on 's good faith and e ditorial
review process. It noted that the standard for
such articles i s not very high:
67)
COMMERCIAL SPEOCH AND THE LAW OF LIBEL
'!he most important conclusion of the Court in OCSE
was t hat First Amendment issues require a very
c l ose scrutiny by the appe l late courts to make
sure that values of the First Amendment are not
bypassed. In the past this was clear l y true in
"politica l " s peech.
BOSE stands f or t h e
propos ition that product critiques may deserve
fu l 1 First Amendme nt protecti on as if they were
politica l speech . The equation of prod uct
critiques to political debates represents a
significant development in the doctrine of
"commercial si:;eech".
Althoug h we would refrain from
desc ribing cu's loudspeaker arti cle as
e xe mpli fying the very highest order of
responsible journalism, CU does not have
to meet such high standards to
prevail. [4, p. 196)
The doctrine of commercial speech deals with the
First Amendment rights of si:;eakers i n the economic
marketplace, as opposed to pol itical debates.
Traditionally, political si:;eech was unregulated by
the government, but could be controlled by courts
through the libel laws. Commercial speech was
regulated by the government. Libel law was brought
in line with the First Amendment i n
NEW YORK
TIMES. Commercial speech was granted partial
First Amendment protection in Virginia State Board
of Pharmacy v . Virginia Citizens Consumer Council ,
Inc.(VIRSINIA PHARMACY) (25)
BC6E is the first
substantive First Amendment libel case to arise
after the extension of First Amendment protection
to commercial si:;eech.
The appellate court was clearly concerned that
courts could stifle criticism by i nsisting on
literal truth in what i s an inexact science, or
that the fear of liability could l ead to selfcensorship.
SUPREME COURT OPINION
Bose appealed the case to the United States
Supreme Court. ( 5 ) The Supreme Court in BOSE
extended the N.Y.TIMES actual malice standard to
product disparagement actions that involve a
public figure. The court held that the author's
t estimony at trial concerning the Consumer Reports
artic l e did not consti tute clear and convincing
evidence of actua l malice , i.e . , that Consumers
Union published the article "with knowledge that
it contained a false statement or with reckl ess
disregard of the truth."
The most important question involves defining
product critiques under the First Amendment. Are
they commercial si:;eech, or political speech? '!he
remainder of this article will compare the
N.Y.TIMES-BOSE line of d efamation cases with the
VIRGINIA PHARMACY concept of the rol e of
commercial speech in the First Amendment. The
purpose i s to create a logical structure for
defining the rol e of product critiques under the
First Amendment.
The Court a l so held that appellate judge s acting
under N.Y.TIMES must exercise independent judgment
and determine whether the record establishes
actual malice with convincing clari ty
Finally, the Court decided that the statement made
by Consumers Union fell well within the robust
debate P!=I1llitted by the First Amendment, and, as a
matter of law , could not have been made with t h e
"actual malice " required by N.Y.TIMES.
Historically, commercial speech was not considered
protected under the First Amendment. (24 )
The refore it could be regulated by the government
without affecting the First Amendment. However , in
VIRGINIA PHARM ACY the Court extended First
Amendment protection to some tyi:es of commercial
si:;eech, citing the strong interests of consumers
and soc i ety as a whole in the free flo w of
accurat e commercial information.
Th e statement i n this case represents
the sort of inaccuracy that is
commonplace in the forum of robust
debate to which the NEW YORK TIMES rule
applies .... Realistically , ... (sic)some
error is inevitabl e ; and the difficulty
of separating fact from fiction
convin ced th e Court . . . to limit
liability to i n stances where some
degree of culpability is present in
order to e l iminate the risk of undue
self censorship and the suppression of
truthful material. (5, p.1 966)
So long as we preserve a predominantly
free enterprise economy, the allocation
of our resources in large measure wil 1
be made through numerous private
economic d e cisions. It is a matter o f
public interest that those decisions , in
the aggregate, be intelligent and wel 1
informed. To this end, the free flow of
commercial
information
is
indisi:;ensable. (cites ommitted) And i f i t
is ind ispensable to the prop e r
the difference between hearing violin
203
defined commercial speech as"expression related
solely to the economic interests of the speaker
and its audience". [7 ,p.562) The court went on to
state:
allocation of resources in a free
enterprise system it is
also
indispensable to the formation of
intelligent opinions as to how that
system ought to be regulated or altered.
Therefore , even if the First Amendment
were thought to be primarily an
instrument to enlig h ten public
decisionmaking in a democracy, we could
n ot say that the free flow of
information does not serve that goal .
(footnotes omitted) [ 25 ,p. 765]
Commercial expression not only serves
the economic interest of the speaker ,
but also assists consumers and furthers
the societal interest in the fullest
possible dissemination of information.
[ 7 p. 562-63 )
The Court emphasized the role of truth by saying :
No problem arises when the product critique is
clearly accurate. Several Supreme Court decisions
protect accurate commercial spee'c h. Likewise,
libel law requires proof that the statement is not
only defamatory, but false. The question is what
liability can be imposed for critiques proven to
be false .
"there can be no cons ti tutiona 1
objection t o the suppression of
commercial messages that do not
accurately inform the public about
lawful activity."[7 p. 563)
It i s important to note the purpose of the
discussion of commercial speech. The doctrine of
commercial speech defines what speech can be
restrained by the government prior to publication.
In a libel case no speech has been restrained.
The application of the First Amendment is designed
to prevent self-restraint under fear or threat of
a libel action. If a type of speech could be
restrained by the government anyway, there is no
special reason to protect it from the fear of
libe l. On the other hand, if the type of speech
could not be constrained by the government, there
is an excellent case for applying the mcst liberal
standards to such speech. Since commercial speech
defines the limits of the government 's ability to
restrain speech, it provides an important dividing
line between the areas where robust debate is the
goal of the law, and where other values take
precedence.
This f irst requires analysis of the different
role of truth in debates involving public as
opposed to private persons. In a well known libel
case , the Supreme Court in Gertz v. Welch said
that "there is no constitutional value in false
statements of fact. "(10,p. 340)
Since the plaintiff in GERTZ was a private person,
he had a right to be protected against false
defamatory statements, with the press bearing the
risk that a statement made in good faith might be
incorrect. However, when dealing with a public
figure, the Court in N.Y.TIMES noted that:
factual errors are inevitabl e in free
debate, and the imposition of liability
for erroneous factual assertions can
'dampen the vigor and limit the variety
of public debate' by inducing selfcensorship.[ 19, p.279 )
The issue created by BOSE is whether First
Amendment privileges and immuniti es of
organizations working in the f i e ld of product
testing, comparison, and evaluation s hould be in
the class of commercial speech, which can be
controlled if fa lse, or ne wspaper commentary,
which is given the widest scope of freedom even if
false? In other words, since a false statement in
an advertisement is clearly restrainable by the
government (9), is a fa l se statement in a product
critique equally unprotected u nd er the
Constitution? Or do product critiques have a
special status under the First Amendment? Does it
make a difference whether a competitor or a third
party is criticizing the product? If there is to
be one rule for the advertiser and another for the
critic, how is it to be justified?
The press is therefore allowed to make errors when
dealing with public figures , if not made with
actual malice. The same rule does not apply to
advertisers .
Justice Stewart in VIRGINIA
PHARMACY differentiated between the press and the
advertiser stating that:
in contrast to the press, which must
often
attempt to assemble the true
facts from sketchy and sometimes
conflicting sources under the pressure
of publication deadlines, the commercial
advertiser generally knows the product
or service he seeks to sell and is in a
position to verify the accuracy of his
factual representat i ons before he
disseminates them. [25,p.777(Stewart J.,
concurr) )
From the point o f view of the producer , it is
conceptually difficu l t to separate a product
critique from a statement designed to sell a
product. A False statement cc:ncerning a product
is the natural target of a government ban on fa lse
advertising. Consumer Reports was not attempting
to market or sel 1 a product. However, CONSUMERS
UNION sells product critiques. The article
purported to be an unbiased professional critique
on loudspeaker systems readily avai l able to the
public. A false statement in the product critique
has the same capacity to mislead the public as a
This statement al l owed the court to continue
programs such as government control of fa l se
advertising. In later commercial speech cases the
Court has continue d to in s i st on truth in
commercial speech. In later cases the court has
expanded on the rights and limits of commercial
speech under the First Amendment. The Court has
recognized the critcal role of commercial speech
in the marketplace of ideas.
The Court has
204
false statement in an advertisement. It is clear
that if the statements in the Consumer Reports
Article had been made by a competitor, rather than
by Consumer Reports, there would be no question
that it was commercial speech. Therefore , the
speech may be deemed to be "commercial" in the
sense that Consumer Reports obtains revenue,
although not profits, from the distribution and
sale of its periodical. There was no suggestion
in any of the BOSE decisions that Consumers
Union's non-profit status had any effect on the
case.
critique .
In Hutchinson v. Proxmire, the Supreme Court dealt
with a senator's criticism of a scientist's
research. The Court rejected the suggestion that
the scienti st was a limited public figure for the
purpose of comment on his receipt of federal funds
for research purposes.
The senator's golden
fleece award clearly carried the implication that
public funds were being expended on pointless and
wasteful research.
The Court noted that the
scientist was addressing a s mall, presumably
expert group of readers: "His published w+itings
reach a relatively smal l category of professional s
concerned witn research in human behavior". (14,
p. 135 ]
On the other hand, the speech in Consumer Reports
may be classified as political in the sense t hat
produc t critiques , whether biased or unbiased,
correct or incorrect, are really an exposition of
ideas and opinions concerning consumer choice in
the marketplace. Under this reasoning such
statements s hould be protected by the full force
of the First Amerx'lment.
This decision would seem to support the suggestion
that some scientists are public figures and some
are not. Few would argue that the Nobel prize
winning scientists who pioneered the polio
vaccines are not public figures. How can we draw
a line? The opinion in PROXMIRE is difficult to
interpret , but the conclusion may t ur n on the
highly personal nature of scientific work.
Criticism of a scientist's work as pointless and
wasteful is almost identical to a personal claim
of fraudulent activity.
In contrast, product
critiques are normally related to the product.
They may carry little of the moral overtone of a
libel action.
It is the role of the First Amendment to protect
speech related to political action. Since in our
free economy we rely on the private sector to
provide most goods and services , criticism of
those providers is a component not only of
commercial speech, but arguably political speech.
It may be argued that the criticism of products is
the type of robust debate that N.Y.TIMES was
designed to protect. Just as citizens s hould be
free to criticize politicians who promote
dangerous or wasteful policies with the maximum
freedom , so should consumers and their
organizations be able to criticize producers.
One solution would be that the product critique
shoul d be viewed, not from the point of view of
the producer, but from the point of view of the
consumer. To a consumer , al 1 vendors are i n the
same pos ition, no matter what their size ,
ownership, or scope of operation.
It should be noted that even in a political debate
a libel case can be won if the plaintiff proves
that the defendant knew the statement was false,
or acted in reckless disregard of the truth. This
may be an appropriate standard for consumers and
organizations. The issue can be further develoi:ed
by asking whether the standard should differ for
various vendors, large or small. Unfortunately ,
the law currently applies that standard only to
"public figures ". This requires analysis of the
status of public figures.
Suppose there were two apartment complexes in a
city. Both are constructed and operated in exactly
the same way, one by the city and the other by a
private developer. The city is clearly a public
figure. Is there any rational basis for treating
the other vendor differently? As far as the
consumer is concerned they are engaged in the same
activity. Logic would indicate that both are
public figures .
In both cases the public is
invited to consume the product. The same could be
said for the vendor of any product. Is there any
basis for concluding that some restaurants are
p ublic figures , a nd others are private persons ,
when it comes to restaurant reviews? Placing a
product in the marketplace is a public act.
Criticizing products serves the same purpose of
robust public debate as any political argument.
To many people it is even more important.
PUBLIC FIGURES
The Supreme Court in BOSE did not examine the
issue of whether a vendor is a utomatical l y a
public figure. The Court noted that the lower
court found that Bose was a public f i gure , and
Bose did not object to that c haracterization.
However, Bose had submitted its radical speaker
design to stereo critics and others, in the hope
that favorable reviews would stimulate sal es. The
d e sign itself sparked considerable technical
debate . This probably would have been enough to
make Bose a public figure , even unde r the most
restrictive analysis. More importantly, what is
the status of a vendor who doesn't advertise,
doesn't invite criticism, and whose name is hardly
a household word?
The issue is of vital
importance , since a vendor who is not a public
figure could win a defamation action based on a
mere negligent false statement in a product
As to the particul ar coosumer's interest
in the free flow of commercial
information, that inte rest may be as
keen, if not keener by far , than his
interest in th e days most urgent
political debate. (25 , p.748 )
A possible conclusion is that any vendor who
places a product on the market, is a public figure
for the purpose of critique of the product. This
plainly would fall under the definition of public
figures in GERTZ as including those who "engage
205
publ ic's attent ion in an at terrpt to infl~ence
its outcane" . [ 10, p. 352) Advertisers clearl y
engage the public's att ention and attempt to
influence them to buy their product.
Nothing
about the Supreme Court's ruling requires that the
public issue be overtly political.
to fashion one r ule for vendors , another rule for
critics , such as CONSUMERS UNION.
the
This occurred i n the related cases of PERMA-MAID
[ 20) and SCIENI'IFIC MANUFAC'IURIN3
[ 23 ) .
In
SCIENTIFIC MANUFACTURING an author was selling a
book which contained his own opinion that aluminum
pots caused cancer.
In PERMA-MAID a corporation
selling cast iron pots made the same c laims.
The
Federal Trade Carmissi on brought actions against
both parties.
The FIC prevailed against the
manufacturer on a claim of fa l se advertising but
lost against the author on First Amendment grounds
suggest strongly that a non-canpetitor critic is
entitl ed to greater protection un:ler the First
Amendment.
The alternative is that sane vendors are public
figures, and others are not.
The problem with
this approach can be seen in a case called GOIDEN
BF.AR. [ ll )
In GOIDEN BF.AR the products being sold were
franchises t o handle various soft drink machines.
A magazine orie nted towards buyers of these
franchises published an article which could be
considered negl igentl y defamatory.
In the
litigation the court considered Golden Bear to be
a private party as a matter of l aw:
CONCLUSION
Here Golden Bear of Texas did not
"thrust itself" into a public controversy by rrerel y advertising its services.
Were we to agree with Entrepreneur's
hypothesis , the mere fact of advertising
would
render all
business public
f i gures.[11, p. 952)
The BOSE case represents a clear step forward f or
consumer oriented criticism of product vendors.
Under Bose vendors who are public figures must
show actual malice, and the evidence of actual
malice must be examined in detail at the appellate
l evel.
BOSE left open the question of who is a
public figure.
Analyzing this issue in light of
the social concerns raised in N. Y.TIMES and its
progeny woul d result in a rule where any vendor i s
a public f igure with regard to consumer criticism
of his product.
In GOIDEN BEAR a consumer oriented magazine was
held l iable for defamation because it did not
adequately differentiate between two corporations
of similar name , engaged in the same line of
business. The article was literally true , but the
court held the implication of bad conduct by one
corporation to the other to be defamatory.
Most importantly,
the court imposed on the
defendant magazine the burden of proof that the
statements were true , rather than the plaintiff
corporation having t o prove that the statements
were false.
This was the result of the finding,
as a matter of law, that Golden Bear was not a
"public figure" . See also [6, l 7) •
In a simi lar case,
HALT.MARK BUIIDERS, [ 12) a
homebuilder sued a TV station for defamation
regarding statements concerning the defendant's
homes.
The court declared the builder to be a
private person, and held the television s tation to
a s tandard of proving the t rut h of the broadcast.
This does not seem to canport with the free and
robust debate of N. Y. TIMES, or the acceptance in
VIRGINIA
PHARMACY t hat carrnercial
speech
represents a key First Arrendment concern.
A
better rul e is that all vendors are public figures
with regard to products they offer for sale.
1.
Abrams , Floyd. "The Supreme Court Turns a New
Page in Libel . " American Bar Association
Journal, 70:89-91, August 1984-. -
2.
American I.aw Int itute. Restatement of the
I.aw, TORTS 2d, St. Paul Minn. American I.aw
Institute Publ ishers., 1977.
3.
Bose Corp.
v. Consumer Union of United
States, Inc., 508 F.Supp. 1249 (1981).
4.
Bose Corporation v. Consumers Union of United
States, Inc. , 692 F2d 189 (1982).
5.
Bose corporation v.
United States, Inc.,
1949, April 30, 1984.
6.
Bruno and Stillman Inc. v. Globe Newspaper
Company, 633 F.2d 583 (1980) .
7.
Central Hudson Gas & El ectric Corporation v.
Public Service Carmission of New York , 447
U.S. 557 , 100 S.Ct. 2343, 65 L.Eil.2d. 341 ,
(1980).
8.
Drechsel , Robert , Moon , Deborah. "Corporate
Libel Plaintiffs and the News Media: An
Anlysis of the Public-Private Distinction
after Gertz" , Arrerican Business I.aw Journal
21 : 128- 156 . (1983) .
-
9.
Federal Trade Ccrmri.ssion v. Colgate-Palrrolive
Co. , 380 U.S. 374 , 85 S.Ct. 1035 , 13 L.Eil. 2d
904' (1965) •
CXMPEI'ITOR V. NON CXMPEI'ITOR CRITICS
Based on the above analysis, vendors in a free
enterprise econany, whatever their size , product,
or method of doing business , would be publ ic
figures protected by a standard of actual malice.
This proposal
does not mean that canpetitors
woul d have the same privilege.
Clearly, a
misrepresentation concerning a
canpetitor's
product i s precisely the type of conduct the Cpurt
i..QUld allow to be regulated.
It may be pcssible
206
Consumers
U.S.
Union of
,104 S.Ct.
10.
Gartz v . Robert Welch Inc. , 418 U.S . 323, 94
S.Ct. 2997, 41 L.El:l.2d. 789 (1974).
11.
Golden Bear Distributing Systens of Texas,
Inc v. Charles Revel , Inc d/b/a Entrepreneur
Magazine, 708 F.2d 944 (198 3).
12.
Hallmark Builders v. Gaylord Broadcasting,
733 F.2d 1461 (1984) .
13.
Heckathorn, Cynthia S.,Note: "OOSE CORPORATION
v. CONSUMrnS UNION OF THE UNITED STATES, INC :
Elctending the NEW YORK TlMES Privil ege to
Product Disparagenent" .
University of
Pittsburg Law Review 44 :1039 ( 1983) .
14.
Hutchinson v. Proxmire, 443 U. S. 111,
S.Ct. 2765, 61 L.El:l.2d 411,(1979 ) .
15.
Jarnes,Jolm P., "Coqorate Plaintiffs in Libel
Actions: Rosenbloan Resurrected?",
Western
tew England Law Review 1: 741 (1979.).
16.
Latham, John L. ,Note: "'!be First Amendment and
the
Basis of Liability in Actions
for
Corporate Libel arrl Product Disparagement"
awry Law Journal 27:755 (1978).
17.
lewis v Tine
(1983).
18.
Fred T.
"Note:
Corporat e
Magaziner ,
and Product
Disparagement:
Defamation
the
Analogy
to
Personal
Narr™ing
Columbia Law Review 75:963,
Defamation",
(1975) .
19.
New York Times v . Sullivan, 376 U.S. 254 , 84
S.Ct. 710, 11 L.El:l. 2d 686 (1964).
20.
Penna-Mai d Co. v. Federal Trade Camri.ssion,
121 F. 2d 282 (1941).
21.
Petrus , Barbara A. "Note : Defamation and the
First Amendment in the Corporate Context" ,
Albany Law Review 46:603 , (1982).
22 .
Prasser, William L. Handbook of the Law of
'lbrts (4th ed) . st.Paul ,Minn. ,West Publishing
Co 1971- . - -
23.
Sci entific Manufacturing Co. v . Federal Trade
Camri.ssion , 124 F.2d 640 (194 1)
24.
Va lentine v. Chrestensen, 316 U.S. 52 , 62
S.Ct . 920, 86 L.El:l. 1262 (1942)
25.
Virginia State Board of Pharmacy v. Virginia
Citizens Consurrer Council Inc. , 425 U.S. 748 ,
96 S.Ct . 1817, 48 L.El:l .2d 346 (1976).
Incorporated,
99
710 F.2d 549
207