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ANDERSON, CLAYTON & CO. v. WASHINGTON STATE DEPT.

October 29, 1975

ANDERSON, CLAYTON & CO., a Delaware Corporation et al., Plaintiffs,
v.
WASHINGTON STATE DEPARTMENT OF AGRICULTURE and Stewart Bledsoe, the Washington State Director of Agriculture, Defendants



The opinion of the court was delivered by: EAST

THE CAUSE

 PARTIES:

 The above-named corporate plaintiffs (hereinafter collectively and severally referred to as Plaintiffs) are independent competitive manufacturers and national marketeers of five nationally known brands of margarine.

 The Washington State Department of Agriculture is an agency of the State of Washington and the individually named defendant, and any successor in office, is the executive officer charged with the direction of the agency's enforcement of the agriculture laws of the state and particularly the hereinafter specified legislative Act. The agency and its executive officer are hereinafter collectively and individually referred to as Defendants.

 CHALLENGED STATUTE:

 A statute of the State of Washington, RCW 15.40.030, provides:

 
" Advertising of oleomargarine -- Dairy terms prohibited. It shall be unlawful in connection with the labeling, selling, or advertising of oleomargarine to use dairy terms, or words or designs commonly associated with dairying or dairy products, except to the extent that such words or terms are necessary to meet legal requirements for labeling . . .."

 Other sections provide for the ex parte seizure of a violator's product within the state and its condemnation (15.40.040) and criminal penalties (15.40.050) for violation of RCW 15.40.030.

 FACTS:

 The Plaintiffs' national electronic and printed news media program of advertising their respective margarine products has been geared to the regulatory provisions of the federal 1950 Oleomargarine Act as administrated by the Federal Trade Commission and those advertisements carry comparative references of their margarine product to dairy products, such as cream and butter.

 The Defendants have in the past and now threaten the Plaintiffs in writing to strictly and literally enforce RCW 15.40.030 and its sanctions against the Plaintiffs if they publish proposed advertisement of margarine products which therein contain comparative references of their respective products to dairy terms and specifically to "butter." In deference to and under the force of the Defendants' threats of prosecution, the Plaintiffs have not published any advertisements containing such references to butter which they otherwise would have done.

 In order to comply with RCW 15.40.030 and the threatened enforcement thereof by the Defendants, the Plaintiffs have been forced to "cut in" or "trim out" of their national news media advertisement beamed for or published in the State of Washington the comparative references to dairy products and particularly butter at an expense and cost in excess of $200,000. *fn1"

 PLAINTIFFS' CONTENTION:

 The Plaintiffs assert that RCW 15.40.030, together with its sanctions, is per se unconstitutional in ...


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