First Resort, Inc. v. Dennis Herrera

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FIRST RESORT, INC., No. 15-15434
Plaintiff-Appellant,
D.C. No.
v. 4:11-cv-05534-SBA

DENNIS J. HERRERA, in his
official capacity as City Attorney OPINION
of the City of San Francisco;
BOARD OF SUPERVISORS OF THE
CITY & COUNTY OF SAN
FRANCISCO; CITY AND COUNTY
OF SAN FRANCISCO,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted November 15, 2016
San Francisco, California

Filed June 27, 2017

Before: Dorothy W. Nelson, A. Wallace Tashima,
and John B. Owens, Circuit Judges.

Opinion by Judge D.W. Nelson;
Concurrence by Judge Tashima
2 FIRST RESORT V. HERRERA

SUMMARY*

Constitutional Law

The panel affirmed the district court, and held that San
Francisco’s Pregnancy Information Disclosure and Protection
Ordinance (the “Ordinance”) was constitutional and not
preempted by state law.

The Ordinance is a law designed to protect indigent
women facing unexpected pregnancies from the harms posed
by false or misleading advertising by limited services
pregnancy centers (“LSPC”). First Resort, Inc., an LSPC,
challenged the constitutionality of the Ordinance.

The panel held that the Ordinance is facially valid
because it regulates only unprotected false or misleading
commercial speech – a category of speech afforded no
constitutional protection; and the Ordinance is not
unconstitutionally vague.

The panel held that the Ordinance was valid as applied to
First Resort. Specifically, the panel held that: the Ordinance
does not regulate First Resort’s protected speech; First
Resort’s commercial speech is not inextricably intertwined
with its protected speech; and the Ordinance does not
discriminate based on the particular opinion, viewpoint, or
ideology of First Resort or other LSPCs.

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 FIRST RESORT V. HERRERA 3

The panel held that the Ordinance does not violate the
Equal Protection Clause of the Fourteenth Amendment. The
panel held that the Ordinance regulates only unprotected
commercial speech, and because the Ordinance does not
unconstitutionally burden the fundamental right to free
speech, the Ordinance is subject only to rational basis review.
The panel concluded that the Ordinance was rationally related
to legitimate government interests.

The panel held that the Ordinance was not preempted by
California’s false advertising law, Cal. Bus. & Prof. Code §
17500. The panel declined to apply duplication preemption
to invalidate the Ordinance because its enforcement did not
raise double-jeopardy concerns, and First Resort had not
demonstrated that it duplicated state law.

Judge Tashima concurred in all of the panel’s opinion,
except for Part 4, as to which he remained dubitante (doubtful
about the legal proposition but hesitant to declare it wrong).
Judge Tashima was unpersuaded that the Ordinance was not
preempted by California’s false advertising law, and he
would certify that question to the California Supreme Court.

COUNSEL

Stephen A. Tuggy (argued) and Kelly S. Biggins, Locke Lord
LLP, Los Angeles, California, for Plaintiff-Appellant.

Erin B. Bernstein (argued) and Matthew Goldberg, Deputy
City Attorneys; Yvonne R. Meré, Chief of Complex and
Affirmative Litigation; Dennis J. Herrera, City Attorney;
Office of the City Attorney, San Francisco, California; for
Defendants-Appellees.
4 FIRST RESORT V. HERRERA

Jonathan M. Eisenberg, Deputy Attorney General; Mark R.
Beckington, Supervising Deputy Attorney General; Douglas
J. Woods, Senior Assistant Attorney General; Kathleen A.
Kenealy, Chief Assistant Attorney General; Office of the
Attorney General, Los Angeles, California; for Amicus
Curiae Attorney General of California.

Priscilla Joyce Smith, Yale Law School, Brooklyn, New
York, for Amici Curiae Information Society Project at Yale
Law School and First Amendment Scholars.

Paula M. Mitchell, Attorney; Lindsay N. Burton, Law School
Participant; Los Angeles, California; for Amici Curiae
NARAL Pro-Choice California, California Religious
Coalition for Reproductive Choice, California Women
Lawyers, and Women Lawyers Association of Los Angeles.

OPINION

NELSON, Senior Circuit Judge:

First Resort, Inc. (“First Resort”) challenges the
constitutionality of San Francisco’s Pregnancy Information
Disclosure and Protection Ordinance (“the Ordinance”), a law
designed to protect indigent women facing unexpected
pregnancies from the harms posed by false or misleading
advertising by limited services pregnancy centers (“LSPCs”).
S.F. Admin Code, ch. 93 §§ 93.1–93.5. The district court
granted in part Appellees’ (collectively, “the City”) motion
to dismiss, denied First Resort’s motion for summary
judgment, and granted Appellees’ cross-motion for summary
judgment. First Resort now appeals those decisions. We
have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm
 FIRST RESORT V. HERRERA 5

the district court and hold the Ordinance is constitutional and
not preempted by state law.

BACKGROUND

1. First Resort

Until 2014, First Resort, an LSPC, operated a state-
licensed community medical clinic and advertised its services
in San Francisco under the name “First Resort.” Since 2014,
First Resort has operated its clinic under the names “Third
Box” and “Support Circle.” As a non-profit corporation, First
Resort provides free pregnancy-related services, including
pregnancy testing, ultrasounds, and counseling. First Resort’s
goal is “to build an abortion-free world,” and therefore it does
not provide abortions or emergency contraception to its
patients, nor does it refer its patients to other facilities for
such services.

First Resort’s target clients are women who are unsure
how to proceed with unplanned pregnancies, including
women considering abortion. While operating its website
under the name “First Resort,” the clinic utilized paid-for
online advertising services, such as Google Adwords, to reach
its intended audience. Upon searching for certain keywords
such as “San Francisco,” “abortion,” and “emergency
contraception,” internet users were directed to First Resort’s
website. First Resort uses its online advertising to compete
with abortion providers for viewers’ attention.

Although First Resort has a clear anti-abortion agenda,
the clinic advertised itself online as an unbiased and neutral
organization that provided “abortion information, resources,
and compassionate support for women” with “unintended
6 FIRST RESORT V. HERRERA

pregnancies” who are “considering abortion.” The website
further stated that First Resort “equip[s] [women] with the
resources [they] need to make a well-informed decision about
[their] options,” and offered information about abortion
procedures and costs. Notably, the website and advertising
materials did not mention First Resort’s anti-abortion stance
or that it did not provide referrals for abortions.

2. False and Misleading Advertising by Clinics

False and misleading advertising by clinics that do not
provide abortions, emergency contraception, or referrals to
providers of such services has become a problem of national
importance. This issue has been the subject of a
congressional report and proposed federal legislation. See
Minority Staff of H. Comm. on Gov’t Reform, Special
Investigations Div., False & Misleading Health Information
Provided by Federally Funded Pregnancy Resource Centers
(July 2006) (the “Waxman Report”); Stop Deceptive
Advertising for Women’s Services Act of 2013, S. 981, 113th
Cong. (2013) (“A Bill [t]o direct the Federal Trade
Commission to prescribe rules prohibiting deceptive
advertising of abortion services . . . .”). The congressional
report found that certain pregnancy resource centers
“frequently fail to provide medically accurate information”
and that “the vast majority of pregnancy centers” contacted
during the investigation misrepresented the medical
consequences of abortion. Waxman Report at 14. The report
further concluded that while “[t]his tactic may be effective in
frightening pregnant teenagers and women and discouraging
abortion[,]” it “denies [them] vital health information,
prevents them from making an informed decision, and is not
an accepted public health practice.” Id.
 FIRST RESORT V. HERRERA 7

Local governments around the country, including in San
Francisco, have also sought to curtail the deceptive practices
of pregnancy service centers. On August 2, 2011, Supervisor
Malia Cohen, a member of the Board of Supervisors of the
City and County of San Francisco (“the Board”), introduced
legislation aimed at preventing such deceptive practices.
That same day, the City Attorney sent First Resort a letter
expressing his “serious concerns” about First Resort’s
misleading advertisements and asking First Resort to
“correct” its advertising “to clarify that the clinic does not
offer or make referrals for abortion services.” This is the
only such letter the City Attorney sent First Resort.

At an October 18, 2011 Board meeting, various
supervisors commented on the proposed legislation.
Supervisor Cohen stated, “I want to remind you the purpose
and intent of this Ordinance is to protect consumers of
pregnancy-related services by prohibiting [LSPCs] from
knowingly disseminating false or misleading advertising
information about the services they provide.” Supervisor
Weiner said, “we are obviously balancing . . . constitutional
rights here,” noting that “we’re all very conscious of the First
Amendment,” and that “this has been a narrowly drafted
ordinance.” Disagreeing with his colleagues, Supervisor
Elsbernd argued that “the proponents of this legislation [have]
made clear that their target is . . . First Resort,” and that
“there has been no testimony, documentation, no affidavits of
any woman, any service, someone seeking service who has
been misled.”

On October 25, 2011, the Board passed the Ordinance in
a ten-to-one vote. The Ordinance was signed into law on
November 3, 2011, and took effect on December 4, 2011.
8 FIRST RESORT V. HERRERA

3. The Ordinance

The Ordinance amended the San Francisco
Administrative Code, adding Chapter 93, Sections 93.1
through 93.5, “to prohibit [LSPCs] from making false or
misleading statements to the public about pregnancy-related
services the centers offer or perform.” The Ordinance is
divided into five sections: (1) “Title,” (2) “Findings,”
(3) “Definitions,” (4) “Violation,” and (5) “Enforcement.”
See generally S.F. Admin. Code, ch. 93 §§ 93.1–93.5.

The “Findings” section explains the impetus for the
Ordinance, stating that “[i]n recent years, clinics that seek to
counsel clients against abortion”—often referred to as crisis
pregnancy centers (“CPCs”)—“have become common
throughout California.” Id. § 93.2(5). Although some CPCs
“openly acknowledge, in their advertising and their facilities,
that they do not provide abortions or emergency
contraception or refer clients to other providers of such
service[,]” others “seek to mislead women contemplating
abortion into believing that their facilities offer abortion
services and unbiased counseling.” Id. § 93.2(6). “Because
of the time-sensitive and constitutionally protected nature of
the decision to terminate a pregnancy, false and misleading
advertising by clinics that do not offer or refer clients for
abortion or emergency contraception is of special concern to
the City.” Id. § 93.2(9). This is because “[w]hen a woman is
misled into believing that a clinic offers services that it does
not in fact offer, she loses time crucial to the decision
whether to terminate a pregnancy,” and “may also lose the
option to choose a particular procedure, or to terminate a
pregnancy at all.” Id. The “Findings” section also
emphasizes that the “City respects the right of [LSPCs] to
counsel against abortions . . . and the City does not intend by
 FIRST RESORT V. HERRERA 9

this Chapter to regulate, limit or curtail such advocacy.” Id.
§ 93.2(10).

In addition, the “Findings” section notes the City’s
relevant financial concerns. In particular, the Ordinance
explains that if women “who have chosen to terminate a
pregnancy are misled and delayed by the false advertising of
CPCs, the cost of providing more invasive and expensive
options may fall upon the City health facilities, which provide
the medical services of last resort for the City’s indigent
population.” Id. § 93.2(11).

In the “Definitions” section, the Ordinance distinguishes
between a “[p]regnancy services center” and an LSPC. Id.
§ 93.3(f)–(g). A “[p]regnancy services center” is defined as
“a facility, licenced or otherwise . . . the primary purpose of
which is to provide services to women who are or may be
pregnant, that either (1) offers obstetric ultrasounds, obstetric
sonograms or prenatal care to pregnant women, or (2) has the
appearance of a medical facility.” Id. § 93.3(g). An LSPC,
on the other hand, is “a pregnancy services center, as defined
in subsection (g), that does not directly provide or provide
referrals to clients for the following services: (1) abortions; or
(2) emergency contraception.” Id. § 93.3(f). As explained
below, the prohibition on false advertising set forth in the
Ordinance only applies to LSPCs. Id. § 93.4.

The “Violation” section of the Ordinance provides:

(a) It is unlawful for any [LSPC], with intent
directly or indirectly to perform pregnancy-
related services (professional or otherwise), to
make or disseminate or cause to be made or
disseminated before the public in the City, or
10 FIRST RESORT V. HERRERA

to make or disseminate or cause to be made or
disseminated from the City before the public
anywhere, in any newspaper or other
publication, or any advertising device or in
any other manner or means whatever,
including over the Internet, any statement,
concerning those services, professional or
otherwise, or concerning any circumstance or
matter of fact connected with the proposed
performance or disposition thereof, which is
untrue or misleading, whether by statement or
omission, that the [LSPC] knows or which by
the exercise of reasonable care should know
to be untrue or misleading.

(b) It is unlawful for any [LSPC], with intent
directly or indirectly to perform pregnancy-
related services (professional or otherwise), to
make or disseminate or cause to be so made or
disseminated any such statement identified in
subsection (a) as part of a plan or scheme with
the intent not to perform the services
expressly or impliedly offered, as advertised.

Id. (emphasis added).

Finally, as set forth in the “Enforcement” section, “[t]he
City Attorney may enforce” the Ordinance through a civil
action. Id. § 93.5(a). Before filing an action, however, the
City Attorney must provide the LSPC with written notice of
the violation and indicate that the LSPC has ten days “in
which to cure the false, misleading, or deceptive advertising.”
Id. “If the [LSPC] has not responded to the written notice
within ten (10) days, or refuses to cure the false, misleading,
 FIRST RESORT V. HERRERA 11

or deceptive advertising within that period,” the City
Attorney may file suit against the LSPC for injunctive relief.
Id. § 93.5(a)–(b). Further, the Ordinance provides that,
“[u]pon a finding by a court . . . that [an LSPC] has violated
Section 93.4 . . . , the City shall be entitled to recover civil
penalties from each and every party responsible for the
violation of not less than fifty dollars ($50) and not more than
five hundred dollars ($500) per violation.” Id. § 93.5(c).

4. Procedural History

On November 16, 2011, First Resort brought suit against
the City in the United States District Court for the Northern
District of California, alleging freedom of expression, equal
protection, void for vagueness, and state law preemption
claims. The City moved to dismiss all claims except the
freedom of expression claim. The district court denied the
motion as to the equal protection claim and granted the
motion with leave to amend as to the void for vagueness and
preemption claims.

First Resort then filed its First Amended Complaint
(“FAC”) on October 11, 2012, re-alleging all claims from the
original complaint except the void for vagueness claim. On
March 11, 2013, the district court denied the City’s new
motion to dismiss the preemption claim. After the close of
discovery, First Resort and the City filed cross-motions for
summary judgment.

Granting summary judgment in favor of the City, the
district court construed First Resort’s freedom of speech
claim as a facial challenge and held that the Ordinance only
regulates unprotected false and misleading commercial
speech and does not violate the First Amendment “in every
12 FIRST RESORT V. HERRERA

conceivable application.” First Resort, Inc. v. Herrera, 80 F.
Supp. 3d 1043, 1049 (N.D. Cal. 2015) (citation omitted). The
district court further held that its “determination that the
Ordinance does not violate the First Amendment forecloses
First Resort’s claim under the Equal Protection Clause,” and
that because enforcement of the Ordinance “does not interfere
or conflict with an enforcement action” under Section 17500
of the California Business and Professions Code, the
Ordinance is not preempted by state law. Id. at 1054, 1057.

First Resort timely appealed, arguing that the Ordinance
is an invalid content-based regulation of protected speech, is
void for vagueness, impermissibly engages in viewpoint
discrimination, violates the Equal Protection Clause of the
Fourteenth Amendment, and is preempted by state law.

STANDARD OF REVIEW

We review de novo the district court’s granting of a
motion to dismiss. Coal. to Defend Affirmative Action v.
Brown, 674 F.3d 1128, 1133 (9th Cir. 2012). We also review
de novo the district court’s grant or denial of summary
judgment, and “determine, viewing the evidence in the light
most favorable to the nonmoving party, whether there are any
genuine issues of material fact and whether the district court
correctly applied the relevant substantive law.” Wallis v.
Princess Cruises, Inc., 306 F.3d 827, 832 (9th Cir. 2002).

DISCUSSION

1. The Ordinance Is Facially Valid.

“An ordinance may be facially unconstitutional in one of
two ways: ‘either [ ] it is unconstitutional in every
 FIRST RESORT V. HERRERA 13

conceivable application, or [ ] it seeks to prohibit such a
broad range of protected conduct that it is unconstitutionally
overbroad.’” Foti v. City of Menlo Park, 146 F.3d 629, 635
(9th Cir. 1998) (quoting Members of City Council v.
Taxpayers for Vincent, 466 U.S. 789, 796 (1984)). First
Resort appears to challenge the Ordinance on both grounds.
We conclude the Ordinance is facially valid because it
regulates only unprotected false or misleading commercial
speech and is not unconstitutionally vague.

a. The Ordinance Only Regulates Unprotected
Commercial Speech.

Because the type of speech subject to regulation by the
Ordinance is a threshold issue, we must first determine
whether the Ordinance only regulates false or misleading
commercial speech. This question lies at the heart of the
dispute, because while commercial speech is generally
subject to intermediate scrutiny, the Constitution affords no
protection to false or misleading commercial speech. Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y.,
447 U.S. 557, 563 (1980) (“[T]here can be no constitutional
objection to the suppression of commercial messages that do
not accurately inform the public about lawful activity. The
government may ban forms of communication more likely to
deceive the public than to inform it . . . .”) (internal citations
omitted). First Resort argues that the Ordinance regulates all
advertising, not only false or misleading advertising, and that
the Ordinance is subject to heightened scrutiny because it
regulates only non-commercial speech. We disagree.

First, the argument that the Ordinance regulates all
advertising is unavailing. The Ordinance clearly makes
“unlawful . . . any statement . . . which is untrue or
14 FIRST RESORT V. HERRERA

misleading” concerning services provided by LSPCs. S.F.
Admin. Code § 93.4(a). Because the Ordinance plainly
regulates only false or misleading speech, the central issue
therefore is whether the regulated speech should be
characterized as commercial.

As we have previously explained, “[c]ommercial speech
is ‘defined as speech that does no more than propose a
commercial transaction.’” Hunt v. City of L.A., 638 F.3d 703,
715 (9th Cir. 2011) (quoting United States v. United Foods,
Inc., 533 U.S. 405, 409 (2001)); see also Bd. of Trs. of State
Univ. of N.Y. v. Fox, 492 U.S. 469, 473–74 (1989) (stating the
commercial transaction test is “the test for identifying
commercial speech”). Our commercial speech “analysis is
fact-driven, due to the inherent ‘difficulty of drawing bright
lines that will clearly cabin commercial speech in a distinct
category.’” Greater Balt. Ctr. for Pregnancy Concerns, Inc.
v. Mayor & City Council of Balt., 721 F.3d 264, 284 (4th Cir.
2013) (quoting City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410, 419 (1993)). Under Bolger v. Youngs Drug
Prods. Corp., 463 U.S. 60 (1983), “[w]here the facts present
a close question, ‘strong support’ that the speech should be
characterized as commercial speech is found where the
speech is an advertisement, the speech refers to a particular
product, and the speaker has an economic motivation.” Hunt,
638 F.3d at 715 (quoting Bolger, 463 U.S. at 66–67 and
describing the Bolger test). However, while “[t]he
combination of all these characteristics . . . provides strong
support for the . . . conclusion that [regulated speech is]
properly characterized as commercial speech,” Bolger,
463 U.S. at 67, each characteristic need not “necessarily be
present in order for speech to be commercial,” id. at 67 n.14.
 FIRST RESORT V. HERRERA 15

This case is not the first time we have addressed the
commercial speech doctrine in the context of medical service
providers. In American Academy of Pain Management v.
Joseph, 353 F.3d 1099 (9th Cir. 2004), we held that
advertisements for paid medical services constituted
commercial speech under the Bolger test. Id. at 1106. There,
a non-profit organization and two of its member doctors
challenged a provision of a California state law prohibiting
doctors from advertising they were “board certified” unless
the certifying board satisfied certain requirements. Id. at
1103–05. Holding that the state law regulated only
commercial speech under Bolger, we explained: “The statute
. . . identifies that the object of its regulation is ‘advertising.’
The advertising regulated relates to a specific product,
medical services. Finally, the advertiser has an economic
motive for engaging in this kind of speech, which is to solicit
a patient base.” Id. at 1106.

As in that case, the Ordinance states that its purpose is to
regulate advertising related to a similar product: limited
medical services offered by LSPCs. See S.F. Admin. Code
§ 93.2(12) (“[T]he City has determined that there exists a
need to regulate false and misleading advertising by
pregnancy clinics offering limited services.”); id.
§§ 93.3(f)–(g), 93.4(a). Further, the regulated LSPCs have at
least one similar economic motive for engaging in false
advertising: to solicit a patient base.

First Resort attempts to distinguish American Academy on
the grounds that the patients in that case were paying clients
who provided a monetary—and therefore economic—
motivation for doctors to advertise. Thus, according to First
Resort, LSPCs do not have a similar economic motive to
16 FIRST RESORT V. HERRERA

solicit patients because they do not necessarily receive
payments from patients for services rendered.

We decline to limit American Academy’s holding to
circumstances where clients pay for services. Here, the
solicitation of a non-paying client base directly relates to an
LSPC’s ability to fundraise and, in turn, to buy more
advertisements. Indeed, as explained in the Joint Statement
of Undisputed Facts submitted in support of the parties’
cross-motions for summary judgment, “First Resort’s
employees are encouraged to share client stories because they
are useful in fundraising,” and “[a] majority of First Resort’s
fundraising communications reference the benefit of its
services to clients and often include client stories.”
Furthermore, at least in the case of First Resort, successful
advertising directly affects employee compensation, as
“[m]embers of First Resort’s senior management team are
eligible to receive bonuses based on criteria which may
include . . . the number of new clients.” Because LSPCs
utilize advertising to maintain a patient base, which in turn
can generate income, we conclude that LSPCs have an
economic motivation for advertising their services.

“In any event, the potential commercial nature of speech
does not hinge solely on whether the [LSPCs have] an
economic motive, as even Bolger does not preclude
classification of speech as commercial in the absence of the
speaker’s economic motivation.” Greater Baltimore,
721 F.3d at 285–86. Thus, regardless of whether LSPCs have
an economic motivation in advertising, their regulated speech
can still be classified as commercial.

We find the reasoning in Fargo Women’s Health Org.,
Inc. v. Larson, 381 N.W.2d 176 (N.D.), cert. denied, 476 U.S.
 FIRST RESORT V. HERRERA 17

1108 (1986), persuasive. In that case, the Supreme Court of
North Dakota, addressing a factually similar case, upheld a
preliminary injunction preventing a “pro-life” pregnancy
clinic from engaging in “false and deceptive advertising and
related activity [that] misleads persons into believing that
abortions are conducted at the clinic with the intent of
deceptively luring those persons to the clinic to unwittingly
receive anti-abortion propaganda.” Id. at 177, 179. As in this
case, the pro-life clinic argued that its communications
constituted non-commercial speech “because no financial
charges [were] assessed against persons receiving services.”
Id. at 180. However, the court did not find that the lack of
payment for services was dispositive to the commercial
speech inquiry. Instead, the court explained that, “[m]ore
importantly, the Help Clinic’s advertisements are placed in a
commercial context and are directed at the providing of
services rather than toward an exchange of ideas.” Id. at 181.
The court thus concluded that, “[i]n effect, the Help Clinic’s
advertisements constitute promotional advertising of services
through which patronage of the clinic is solicited, and in that
respect constitute classic examples of commercial speech.”
Id.

Here, as in Larson, the Ordinance is directed at
advertisements related to the provision of certain medical
services, not the exchange of ideas; the City did not attempt
to ban advertisements related to constitutionally protected
pro-life advocacy. See S.F. Admin. Code § 93.2(10) (“The
City respects the rights of [LSPCs] to counsel against
abortions . . . and the City does not intend . . . to regulate,
limit or curtail such advocacy.”); id. § 93.2(12). Instead, the
Ordinance only regulates the dissemination of false or
misleading statements regarding the pregnancy-related
services an LSPC offers in a marketplace for those services.
18 FIRST RESORT V. HERRERA

Id. § 93.4(a). Furthermore, we note that the evidence in the
record suggests First Resort views itself as advertising and
participating in a competitive marketplace for commercially
valuable services. In the Joint Statement of Undisputed
Facts, First Resort admits that it “views its online advertising
as competing with that of abortion providers for the attention
of online viewers,” and that “[t]he medical services offered
by First Resort, such as pregnancy testing, ultrasounds, and
nursing consultations have monetary value.”

Because the Ordinance regulates advertising designed to
attract a patient base in a competitive marketplace for
commercially valuable services, we hold that the Ordinance
regulates “classic examples of commercial speech.” Larson,
381 N.W.2d at 181. Accordingly, as the Ordinance only
regulates false or misleading commercial speech—a category
of speech afforded no constitutional protection—First
Resort’s first facial challenge fails.

b. The Ordinance Is Not Void for Vagueness.

First Resort also argues the Ordinance is facially invalid
because it is unconstitutionally vague. However, we
conclude First Resort has waived this void for vagueness
challenge. In its original complaint, First Resort’s second
claim for relief was that the Ordinance was unconstitutionally
vague. The district court dismissed this claim with leave to
amend. In its FAC, First Resort did not replead the claim,
effectively abandoning it. See Lacey v. Maricopa Cty.,
693 F.3d 896, 928 (9th Cir. 2012) (en banc) (“For claims
dismissed with prejudice and without leave to amend, we will
not require that they be repled in a subsequent amended
complaint to preserve them for appeal. But for any claims
voluntarily dismissed, we will consider those claims to be
 FIRST RESORT V. HERRERA 19

waived if not repled.”); see also Chubb Custom Ins. Co. v.
Space Sys./Loral, Inc., 710 F.3d 946, 973 n.14 (9th Cir.
2013).1 Moreover, even if we were to conclude First Resort
had not waived its void for vagueness challenge, the
challenge nonetheless fails on the merits.

A law is unconstitutionally vague if it does not “provide
a reasonable opportunity to know what conduct is prohibited,
or is so indefinite as to allow arbitrary and discriminatory
enforcement.” Human Life of Wash. Inc. v. Brumsickle,
624 F.3d 990, 1019 (9th Cir. 2010) (citation and internal
quotation marks omitted); see also Roberts v. U.S. Jaycees,
468 U.S. 609, 629 (1984). First Resort has not satisfied either
of these grounds.

First, we may reject a vagueness challenge when it is
“clear what the ordinance as a whole prohibits.” Human Life
of Wash., 624 F.3d at 1021 (citation and internal quotation
marks omitted). Further, “otherwise imprecise terms may
avoid vagueness problems when used in combination with
terms that provide sufficient clarity.” Id. (citation and
internal quotation marks omitted). In arguing that a person of
ordinary intelligence cannot possibly know what speech is
regulated or who might be punished by the Ordinance’s
penalty provisions, First Resort fails to view the specific

1
We find unpersuasive First Resort’s argument that it “reserved its
claim by continuing to allege [in its FAC] the Ordinance was vague and
therefore unconstitutional, but without asserting it as a claim separate from
its free speech claim.” Contrary to First Resort’s suggestion, it does not
appear First Resort continued to assert a void for vagueness claim.
Although First Resort moved for summary judgment on all of the other
claims pleaded in the FAC, it did not even reference its void for vagueness
claim in that motion.
20 FIRST RESORT V. HERRERA

language it challenges in the context of the Ordinance as a
whole.

As the district court noted, the Ordinance states in the
“Findings” section “that its purpose is to prevent [LSPCs]
from engaging in ‘false and misleading advertising’ regarding
the nature of the counseling and services it provides or does
not provide.” First Resort, Inc. v. Herrera, No. 11-5534,
2012 WL 4497799, at *5 (N.D. Cal. Sept. 28, 2012) (quoting
S.F. Admin. Code § 93.2(6)–(9), (11)–(12) (emphasis
omitted)). Additionally, the Ordinance makes clear what is
not regulated. In particular, the Ordinance explains that the
City does not intend to “regulate, limit, or curtail” advocacy,
that it “respects the right of [LSPCs] to counsel against
abortions,” S.F. Admin. Code § 93.2(10), and that it “respects
the right of individuals to express and promote” their beliefs
about abortion, id. § 93.2(3). Further, the Ordinance specifies
that, before bringing an action, “the City Attorney shall give
written notice of the violation” and indicate that the LSPC
“has ten (10) days in which to cure the false, misleading, or
deceptive advertising.” Id. § 93.5(a). Given this context, it
is clear what the Ordinance as a whole prohibits; First
Resorts’s argument that a person of ordinary intelligence
cannot possibly know what speech the Ordinance regulates is
unpersuasive.

Furthermore, First Resort’s hypothetical examples
concerning what the Ordinance covers and who might be
punished under its provisions do not render the Ordinance
unconstitutionally vague. As the Supreme Court has
explained, “speculation about possible vagueness in
hypothetical situations not before the Court will not support
a facial attack on a statute when it is surely valid in the vast
majority of its intended applications.’” Hill v. Colorado,
 FIRST RESORT V. HERRERA 21

530 U.S. 703, 733 (2000) (citation and internal quotation
marks omitted). Thus, even if First Resort had not waived its
void for vagueness challenge, its challenge would still fail on
the merits.

2. The Ordinance Is Valid As Applied to First Resort.

The parties disagree over whether First Resort properly
alleged as-applied challenges as well as a facial challenge to
the Ordinance, such that First Resort waived its as-applied
challenges on appeal. Without providing much explanation,
the district court concluded that First Resort’s challenges
below were only facial. We disagree, but conclude that First
Resort’s as-applied challenges fail.

“An as-applied challenge contends that the law is
unconstitutional as applied to the litigant’s particular speech
activity, even though the law may be capable of valid
application to others.” Foti, 146 F.3d at 635. For example,
“a litigant may separately argue that discriminatory
enforcement of a speech restriction amounts to viewpoint
discrimination in violation of the First Amendment.” Id.
First Resort appears to have alleged at least three as-applied
challenges below: (1) that First Resort’s speech regarding the
nature of its organization and services is fully protected;
(2) that any commercial speech contained within First
Resort’s advertisements is “inextricably intertwined” with its
protected speech; and (3) that the Ordinance was passed
because the Board disagreed with First Resort’s anti-abortion
views. While we think that First Resort’s as-applied
arguments were properly made below such that they should
be addressed on appeal, each argument fails on the merits.
22 FIRST RESORT V. HERRERA

a. The Ordinance Does Not Regulate First Resort’s
Protected Speech.

First Resort’s first as-applied argument relies on the same
reasoning as its facial challenge. Specifically, First Resort
asserts that because its advertisements constitute non-
commercial speech, the Ordinance as applied to First Resort
amounts to a content-based regulation subject to strict
scrutiny. As explained above, because the Ordinance only
targets false or misleading commercial speech, First Resort
must demonstrate that the Ordinance regulates First Resort’s
own non-commercial speech to prevail on its as-applied
challenge. It cannot.

As stated in the Joint Statement of Undisputed Facts,
“First Resort provides counseling and basic medical services
such as pregnancy tests, ultrasounds and early prenatal care
to pregnant women as needed, free of charge.” These
services “have monetary value,” and First Resort uses its
online and print advertisements to compete in a competitive
marketplace for those services. Indeed, First Resort uses
“services like Google’s Adwords” and employs “hundreds of
keywords for San Francisco,” such that “when an internet
search is run for ‘abortion San Francisco,’ a link to First
Resort’s website can appear as a paid advertisement above
the search results.” “First Resort views [this] online
advertising as competing with that of abortion providers for
the attention of online viewers.” Accordingly, as explained
above, First Resort’s advertisements subject to the Ordinance
constitute commercial speech because they “are placed in a
commercial context and are directed at the providing of
services rather than toward an exchange of ideas.” Larson,
381 N.W.2d at 181.
 FIRST RESORT V. HERRERA 23

First Resort also has a clear economic motivation to
produce successful advertisements. To provide its services
for free, First Resort engages in fundraising efforts which are
furthered, at least in part, by First Resort’s ability to attract
new clients. Indeed, “First Resort’s employees are
encouraged to share client stories because they are useful in
fundraising.” Not surprisingly, then, “[a] majority of First
Resort’s fundraising communications reference the benefit of
its services to clients and often include client stories.”
Furthermore, the success of First Resort’s advertising directly
relates to employee compensation, as “[m]embers of First
Resort’s senior management team are eligible to receive
bonuses based on criteria which may include . . . the number
of new clients.”

As such, “[First Resort’s] advertisements constitute
promotional advertising of services through which patronage
of the clinic is solicited, and in that respect constitute classic
examples of commercial speech.” Larson, 381 N.W.2d at
181. Because the Ordinance only regulates the false or
misleading aspects of those advertisements, the Ordinance
only regulates unprotected speech. This as-applied challenge
therefore fails.

b. First Resort’s Commercial Speech Is Not
Inextricably Intertwined with Its Protected
Speech.

First Resort also argues that, even if its advertising
constitutes commercial speech, that speech is inextricably
intertwined with core protected speech such that the
Ordinance is subject to strict scrutiny. While it is true that
“[c]ommercial speech does not retain its commercial
character when it is inextricably intertwined with otherwise
24 FIRST RESORT V. HERRERA

fully protected speech . . . [,] where the two components of
speech can be easily separated, they are not inextricably
intertwined.” Hunt, 638 F.3d at 715 (internal citation and
quotation marks omitted). Here, First Resort’s commercial
speech (speech concerning the limited medical services it
provides) would have been easily separated from its fully
protected speech (speech concerning truthful information
about pregnancy) on its website.

As the City explained in its August 2, 2011 letter to First
Resort, the clinic’s website included “detailed information
about abortion procedures offered at outpatient medical
clinics” and “implie[d] on its ‘Abortion Procedures’ page that
First Resort perform[ed] pregnancy tests and ultrasounds as
a prelude to offering abortion as an outpatient procedure, or
referring clients to a provider who performs abortions.” As
applied to First Resort, the Ordinance only would regulate the
misleading aspects of this information, which conceals from
the public the fact that First Resort neither performed
abortions nor referred clients to abortion providers.

This misleading commercial speech is easily separated
from other protected, non-misleading portions of First
Resort’s website, such as information regarding certain
pregnancy-related issues. The website stated, for example:
“If you have missed at least one period, you may be pregnant
. . . . The only sure way to know is by having a pregnancy test
or pelvic exam.”; “Ultrasound is a technique that uses sound
waves to project a picture of an embryo or fetus in the
womb.” Accordingly, because the commercial and fully
protected portions of First Resort’s speech are separable, the
Ordinance is not subject to heightened scrutiny.
 FIRST RESORT V. HERRERA 25

c. The Ordinance Does Not Discriminate Based on
Viewpoint.

Finally, First Resort contends that the Ordinance engages
in impermissible viewpoint discrimination by regulating
LSPCs and exempting abortion providers because the City
disapproves of the LSPCs’ anti-abortion views. While First
Resort does not make clear whether this viewpoint
discrimination challenge is as-applied or facial, its argument
fails regardless of how the challenge is categorized.

A regulation engages in viewpoint discrimination when
it regulates speech “based on ‘the specific motivating
ideology or perspective of the speaker.’” Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2230 (2015) (quoting Rosenberger
v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829
(1995)); see also Moss v. U.S. Secret Serv., 572 F.3d 962, 970
(9th Cir. 2009) (“[V]iewpoint discrimination occurs when the
government prohibits speech by particular speakers, thereby
suppressing a particular view about a subject.”) (citation and
internal quotation marks omitted). Viewpoint discrimination
is a “‘more blatant’ and ‘egregious form of content
discrimination,’” Reed, 135 S. Ct. at 2230 (quoting
Rosenberger, 515 U.S. at 829), and regulations that
discriminate on this basis are subject to strict scrutiny, Turner
Broad. Sys. Inc. v. FCC, 512 U.S. 622, 658 (1994).

We conclude the Ordinance does not discriminate based
on the particular opinion, viewpoint, or ideology of First
Resort or other LSPCs. As the district court explained,
whether the Ordinance applies depends on the services
offered, not on the particular views espoused or held by a
clinic. Indeed, the Ordinance applies regardless of what, if
any, objections the LSPCs may have to certain family-
26 FIRST RESORT V. HERRERA

planning services. Contrary to First Resort’s assertion, an
LSPC may choose not to offer abortions or abortion referrals
for reasons that have nothing to do with their views on
abortion, such as financial or logistical reasons. See Greater
Balt., 721 F.3d at 288 (holding that an ordinance regulating
LSPCs did not engage in viewpoint discrimination and
explaining that “there may be [LSPCs] with no ‘moral or
religious qualms regarding abortion and birth-control,’ . . .
who refrain from providing or referring abortion or birth
control for other reasons”).

Moreover, contrary to First Resort’s suggestion, the
Ordinance regulates LSPCs because they engage in false or
misleading speech, irrespective of their viewpoints. The
Ordinance is aimed at protecting women from the false or
misleading advertisements of certain pregnancy centers that
appear to but do not actually offer abortion-related services.
Thus, although the Ordinance only applies to the specific
service providers that present this grave threat to women’s
health, we do not conclude that the Ordinance discriminates
based on the LSPCs’ views on abortion. Indeed, the
Ordinance merely seeks to prevent LSPCs from harming
women through false or misleading speech about their
services and in no way restricts those entities from expressing
their views about abortion to the public or their clients.

Put differently, it may be true that LSPCs engage in false
or misleading advertising concerning their services because
they hold anti-abortion views. However, the Ordinance does
not regulate LSPCs based on any such anti-abortion views.
Instead, the Ordinance regulates these entities because of the
threat to women’s health posed by their false or misleading
advertising.
 FIRST RESORT V. HERRERA 27

To the extent First Resort argues that the Ordinance is a
viewpoint-based regulation of speech on the grounds that the
City had an illicit motive, that argument also fails. “Even if
[First Resort] could establish that the City had an illicit
motive in adopting [the Ordinance], that would not be
dispositive” because “[t]he Supreme Court has held
unequivocally that it ‘will not strike down an otherwise
constitutional statute on the basis of an alleged illicit
legislative motive.’” Menotti v. City of Seattle, 409 F.3d
1113, 1130 n.29 (9th Cir. 2005) (quoting United States v.
O’Brien, 391 U.S. 367, 383 (1968)).

For the foregoing reasons, we hold that the Ordinance
does not discriminate based on viewpoint.

3. The Ordinance Does Not Violate the Equal Protection
Clause.

Next, First Resort contends the Ordinance violates the
Equal Protection Clause of the Fourteenth Amendment
because it burdens speech and impermissibly creates a
classification based on the identity of the speaker. We
disagree.

As set forth above, the Ordinance regulates only
unprotected commercial speech. Thus, because the
Ordinance does not unconstitutionally burden the
fundamental right to free speech, the Ordinance is subject
only to rational basis review. See Rubin v. City of Santa
Monica, 308 F.3d 1008, 1019 (9th Cir. 2002) (“[R]ational
basis review is appropriate unless the restriction
unconstitutionally burdens a fundamental right, here, the right
to free speech. Because we conclude that the restrictions do
not unconstitutionally burden Rubin’s right of free speech, we
28 FIRST RESORT V. HERRERA

find that neither do they violate his Equal Protection right.”);
ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 798 (9th
Cir. 2006) (“If . . . there is no First Amendment right at issue,
the City need only proffer a rational basis for the
regulation.”). A law survives rational basis review “so long
as it bears a rational relation to some legitimate end.” Tucson
Woman’s Clinic v. Eden, 379 F.3d 531, 543 (9th Cir. 2004)
(citation and internal quotation marks omitted).

By regulating false or misleading advertising concerning
LSPCs’ services, the Ordinance directly furthers various
legitimate government ends, including preventing consumer
deception, protecting women’s reproductive health, and
advancing the City’s fiscal goals. See S.F. Admin Code
§ 93.2(8)–(9), (11)–(12). Further, the Ordinance sets out
valid reasons for distinguishing between LSPCs and full-
service providers. In particular, the Ordinance states that
“false and misleading advertising by clinics that do not offer
or refer clients for abortion or emergency contraception is of
special concern to the City” because “[w]hen a woman is
misled into believing that a clinic offers services that it does
not in fact offer, she loses time crucial to the decision
whether to terminate a pregnancy” and “may also lose the
option to choose a particular procedure, or to terminate the
pregnancy at all.” Id. § 93.2(9). As the City asserts in its
brief, “[w]here a clinic offers a full range of services, the
consumer harms of false and misleading advertising may
remain, but the threat to a woman’s ability to access time-
sensitive and constitutionally protected medical care does
not.”

Moreover, the Supreme Court has made clear that a
legislative body may choose to implement different
regulatory schemes for different entities without offending
 FIRST RESORT V. HERRERA 29

the Equal Protection Clause. See Williamson v. Lee Optical
of Okla., Inc., 348 U.S. 483, 489 (1955) (“Evils in the same
field may be of different dimensions and proportions
requiring different remedies. . . . Or the reform may take one
step at a time, addressing itself to the phase of the problem
which seems most acute to the legislative mind. The
legislature may select one phase of one field and apply a
remedy there, neglecting the others.”) (internal citations
omitted); Nat’l Ass’n for Advancement of Psychoanalysis v.
Cal. Bd. of Psychology, 228 F.3d 1043, 1053 (9th Cir. 2000)
(“The question is . . . whether it was rational for the
California Legislature to implement different licensing
schemes for psychologists, and for social workers and family
counselors. It is not irrational for the Legislature to progress
one step, or one profession, at a time.”).

First Resort’s equal protection challenge also fails to the
extent First Resort separately argues that the Ordinance
burdens a suspect class. Because LSPCs are not a suspect
class, only rational basis review—not strict scrutiny—applies.
Cf. Tucson Woman’s Clinic, 379 F.3d at 547 (holding
abortion providers are not a suspect class).

Because the Ordinance is rationally related to legitimate
government interests, it survives rational basis review.
Accordingly, we reject First Resort’s equal protection
challenge.

4. The Ordinance is Not Preempted by California
Business and Professions Code § 17500.

Finally, First Resort argues that the Ordinance is
duplicative of California’s false advertising law, Cal. Bus. &
Prof. Code § 17500 (“§ 17500” or “the FAL”), and therefore
30 FIRST RESORT V. HERRERA

preempted by state law. Although, as a general matter, the
Ordinance and § 17500 both regulate false and misleading
advertising, First Resort has failed to show that duplication
preemption should apply here to invalidate the Ordinance.
See Big Creek Lumber Co. v. Cty. of Santa Cruz, 136 P.3d
821, 827 (Cal. 2006) (“The party claiming that general state
law preempts a local ordinance has the burden of
demonstrating preemption.”).

Whether a California state law preempts a local law is
governed by Article XI, section 7 of the California
Constitution, which states that “[a] county or city may make
and enforce within its limits all local, police, sanitary, and
other ordinances and regulations not in conflict with general
laws.” Cal. Const., art. XI, § 7 (emphasis added). “[A]bsent
a clear indication of preemptive intent from the Legislature,”
California courts presume that a local law in an area of
traditional local concern “is not preempted by state statute.”
Big Creek Lumber Co., 136 P.3d at 827 (emphasis in
original).

As this Court has recognized, “[t]he California Supreme
Court has held that State Law is ‘in conflict with’ or preempts
local law if the local law ‘duplicates, contradicts, or enters an
area fully occupied by general law, either expressly or by
legislative implication.’” Fireman’s Fund Ins. Co. v. City of
Lodi, 302 F.3d 928, 941 (9th Cir. 2002) (quoting Sherwin-
Williams Co. v. City of L.A., 844 P.2d 534, 536 (Cal. 1993)).
“Local legislation is ‘duplicative’ of general law when it is
coextensive therewith.” Sherwin-Williams, 844 P.2d at 537.

As we have previously noted, “California courts have
largely confined the duplication prong of the state preemption
test to penal ordinances.” Fireman’s Fund, 302 F.3d at 956.
 FIRST RESORT V. HERRERA 31

This is because when a local ordinance and a state criminal
law are duplicative, “a conviction under the [local] ordinance
will operate to bar prosecution under state law for the same
offense.” Id. (quoting Cohen v. Bd. of Supervisors of the City
& Cty. of S.F., 707 P.2d 840, 848 n.12 (Cal. 1985)) (internal
quotation marks omitted); accord In re Portnoy, 131 P.2d 1,
2 (Cal. 1942) (“Insofar as the [ordinance purports] to prohibit
acts which are already made criminal by the Penal Code, it is
clear that they exceed the proper limits of supplementary
regulation and must be invalid because in conflict with the
statutes which they duplicate.”).

Here, because the Ordinance is civil and contains no
criminal provisions or penalties, there is no double-jeopardy
bar to a state criminal prosecution for the same false
advertising that the Ordinance prohibits, and First Resort has
failed to show that enforcing the Ordinance would interfere
with enforcing state law. Still, First Resort argues that
California courts have applied duplication preemption to both
civil and penal ordinances. However, as the district court
recognized, the cases First Resort cites in support of this
argument are distinguishable as they do not indicate a civil
ordinance should be invalidated on the basis of duplication
preemption alone. See, e.g., Sequoia Park Assocs. v. Cty. of
Sonoma, 176 Cal. App. 4th 1270, 1292–1301 (Ct. App. 2009)
(holding a local civil ordinance was preempted but not
relying solely on the fact that the ordinance was duplicative
of the state statute); Korean Am. Legal Advocacy Found. v.
City of L.A., 23 Cal. App. 4th 376, 390–93 (Ct. App. 1994)
(concluding that a civil ordinance was not preempted on
duplication or other grounds); cf. S.D. Myers v. City & Cty. of
S.F., 336 F.3d 1174, 1177–78 (9th Cir. 2003) (same). While
we need not decide that duplication preemption may never
apply to a civil ordinance, the fact that the Ordinance here is
32 FIRST RESORT V. HERRERA

civil rather than penal weighs against invalidating it based on
duplication preemption.

Moreover, we are not convinced that the Ordinance
duplicates the FAL, as the laws are not coextensive and do
not proscribe “precisely the same acts.” Great W. Shows, Inc.
v. Cty. of L.A., 44 P.3d 120, 127–28 (Cal. 2002) (citation and
internal quotation marks omitted). First, the Ordinance,
which only applies to LSPCs, S.F. Admin. Code § 93.4, is
narrower in scope than the FAL, which applies to “any
person, firm, corporation or association, or any employee
thereof,” Cal. Bus. & Prof. Code § 17500. The FAL also
applies to false statements concerning the disposal and sale of
real and personal property, as well as the performance and
sale of professional and non-professional services, while the
Ordinance only applies to the performance of pregnancy-
related services. Id.

Second, First Resort has failed to meet its burden to show
that the FAL covers all acts proscribed by the Ordinance. For
instance, the Ordinance prohibits disseminating untrue or
misleading statements by LSPCs “whether by statement or
omission,” S.F. Admin. Code § 93.4(a), while the text of the
FAL does not mention omissions, Cal. Bus. & Prof. Code
§ 17500. Similarly, the Ordinance regulates services
“expressly or impliedly offered,” S.F. Admin. Code § 93.4(b),
while the FAL does not mention implied offers, Cal. Bus. &
Prof. Code § 17500. Further, under the Ordinance, LSPCs
are prohibited both (a) from making untrue or misleading
statements concerning their pregnancy-related services, and
(b) from making such statements with the “intent not to
perform” those services “as advertised.” S.F. Admin. Code
§ 93.4. The FAL, on the other hand, prohibits all persons (a)
from making untrue or misleading statements concerning
 FIRST RESORT V. HERRERA 33

property or services, and (b) from making such statements
with “the intent not to sell” property or services as advertised.
Cal. Bus. & Prof. Code § 17500. Thus, the Ordinance differs
from the FAL as it narrowly proscribes false advertising
concerning the performance of services, irrespective of
whether those services are offered for sale.

We also note that the Ordinance and the FAL contain
entirely different enforcement schemes. A violation of the
FAL is a misdemeanor offense punishable by imprisonment
of up to six months, or by a fine of up to $2,500, or both, as
well as a civil offense punishable by the same fine. Id.
§§ 17500, 17536. A violation of the Ordinance cannot result
in a criminal penalty, and is only punishable by a fine of up
to $500. The Ordinance also authorizes the City Attorney to
apply for injunctive relief tailored to the harmful effects of
LSPCs’ false advertising, including (a) paying for and
disseminating corrective advertising in the same form as the
false advertising, and (b) posting notice on the LSPCs’
premises stating, among other things, whether abortions or
abortion referrals are available at the LSPC. S.F. Admin.
Code § 93.5.

In sum, we decline to apply duplication preemption to
invalidate the Ordinance because its enforcement does not
raise double-jeopardy concerns and First Resort has not
demonstrated that it duplicates state law.

CONCLUSION

For the forgoing reasons, we affirm the district court’s
decisions in favor of the City.

AFFIRMED.
34 FIRST RESORT V. HERRERA

TASHIMA, Circuit Judge, concurring in part and dubitante
in part:

I concur in all of Judge Nelson’s fine opinion, except for
Part 4, as to which I remain dubitante. Part 4 of the majority
opinion holds that San Francisco’s Pregnancy Information
Disclosure and Protection Ordinance (the “Ordinance”) is not
preempted by California Business and Professions Code
§ 17500, California’s false advertising law (“FAL”). Yet, the
analysis the opinion engages in to reach this conclusion is, at
best, sketchy. Because I do not believe that this analysis can
bear the weight it is asked to shoulder, I am unpersuaded that
the Ordinance is not preempted by the FAL. The question of
whether the Ordinance is preempted by the FAL is an open
and important one. Because the California case law gives no
clear answer to this question, I would certify the question to
the California Supreme Court, see Cal. R. Ct. 8.548, rather
than make an educated guess at the answer, as the majority
does here.

The majority gives two reasons why the Ordinance is not
preempted. But, as I demonstrate below, it is far from clear
that the majority’s answer is the one the California Supreme
Court would reach.

Does Duplication Preemption Apply to Non-Penal
Ordinances?

The majority “decline[s] to apply duplication preemption
to invalidate the Ordinance because its enforcement does not
raise double-jeopardy concerns.” Maj. Op. at 33. Ostensibly,
the majority does not hold that duplication preemption “may
never apply to a civil ordinance.” Maj. Op. at 31–32.
Nevertheless, the majority reasons that “the fact that the
 FIRST RESORT V. HERRERA 35

Ordinance here is civil rather than penal weighs against
invalidating it based on duplication preemption.” Id. The
majority’s conclusion relies heavily on Fireman’s Fund Ins.
Co. v. City of Lodi, 302 F.3d 928, 941 (9th Cir. 2002). But
the most that the majority can tease out of Fireman’s Fund is
that “California courts have largely confined the duplication
prong of the state preemption test to penal ordinances.” Maj.
Op. at 30 (citing Fireman’s Fund, 302 F.3d at 956).
(emphasis added).1 Nothing in Fireman’s Fund bars us from
applying duplication preemption to the facts of the instant
case. The majority also cannot convincingly explain why
S.D. Myers v. City & County of San Francisco, 336 F.3d
1174, 1177–78 (9th Cir. 2003), which was decided one year
after Fireman’s Fund, should not control. There, we
undertook the duplication preemption analysis to determine
if a California non-penal statute preempted a San Francisco
non-penal ordinance. Although we ultimately concluded that
the two laws were not co-extensive and therefore not
preempted, our detailed analysis of the issue casts doubt on
the majority’s position that duplication preemption does not
apply to a non-penal ordinance.

This doubt is magnified by the California Supreme
Court’s long-standing recognition that duplication preemption
applies to civil, non-penal ordinances. See Chavez v. Sargent,
339 P.2d 801, 810 n.3 (Cal. 1959) (“We recognize that in
Pipoly v. Benson [125 P.2d 482 (Cal. 1942)] the Chief Justice
was dealing with a penal ordinance and that the ordinance
with which we are concerned declares no penal sanction, but
we nevertheless view the quoted language as applicable
here.”). There is thus no firm basis in California law to

1
In addition, of course, Fireman’s Fund is not an expression of the
California Supreme Court itself.
36 FIRST RESORT V. HERRERA

support the majority’s “declin[ing] to apply duplication
preemption,” simply because a non-penal ordinance is
involved.

Thus, while the majority “decline[s] to apply duplication
preemption,” Maj. Op. at 33, I respectfully suggest that, in
doing so, the majority puts the shoe on the wrong foot. The
question we should be asking is whether there is “clear
authority” that duplication preemption does not apply (not
that it does not “largely” apply) to a civil ordinance. There is
not.

Does the FAL Apply to the Advertising of the Services
Offered by LSPCs?

The majority opinion goes on at great length to
demonstrate that the speech engaged in by First Resort, and
regulated by the Ordinance, is commercial speech. But in
Part 4, the opinion implies that First Resort’s speech is not
commercial at all because the Ordinance “narrowly
proscribes false advertising concerning the performance of
[an LSPC’s] services, irrespective of whether those services
are offered for sale.” Maj. Op. at 33. The majority implies
that the FAL does not apply to services that are not “offered
for sale.” But this implication is unsupported by a close
analysis of the text of the FAL. In fact, the FAL makes it
unlawful for any person who intends “to perform services,”
to make any untrue or misleading statement “connected with
the proposed performance” of that service. Cal. Bus. & Prof.
Code §17500. The FAL contains no explicit requirement that
 FIRST RESORT V. HERRERA 37

those services be “offered for sale.”2 Id. Thus, the majority
does not tell us the source of its implication that the FAL
requires a sales transaction.

Confusing the issue even further is the majority’s reliance
earlier in the opinion on Fargo Women’s Health Org., Inc. v.
Larson, 381 N.W. 2d 176 (N.D. 1986) (“Larson”), which
“upheld a preliminary injunction preventing a ‘pro-life’
pregnancy clinic from engaging in ‘false and deceptive
advertising . . . [that] misleads persons into believing that
abortions are conducted at the clinic with the intent of
deceptively luring those persons to the clinic to unwittingly
receive anti-abortion propaganda.’” Maj. Op. at 16–17
(quoting Larson, 381 N.W.2d at 177, 179). The majority
further observes that the North Dakota Supreme Court “did
not find that the lack of payment for services was dispositive
to the commercial speech inquiry.” Id. at 17. It goes on to
observe that “the Help Clinic’s advertisements are placed in
a commercial context and are directed at the providing of
services rather than toward an exchange of ideas.” Id. at 17
(quoting Larson, 381 N.W.2d at 181). Thus, the majority
approvingly quotes Larson that, “[i]n effect, the Help Clinic’s
advertisements constitute promotional advertising of services
through which patronage of the clinic is solicited, and in that
respect constitute classic examples of commercial speech.”
Id. at 17 (quoting Larson, 381 N.W.2d at 181).

2
There is a separate and independent clause at the end of the FAL
which makes it unlawful to make any misleading statement “as part of a
plan or scheme with the intent not to sell property or services” at the price
advertised. Id. This is the only mention of the word “sale” or any of its
variants in the FAL.
38 FIRST RESORT V. HERRERA

What the majority does not tell us is that the law at issue
in Larson was “North Dakota’s false advertising statute,
Chapter 51-12 N.D.C.C.” 381 N.W.2d at 182. That statute
is substantially similar to California’s FAL and the
preliminary injunction issued in that case was issued under
the North Dakota false advertising statute. Thus, by
necessary implication, the North Dakota Supreme Court held
that the false advertising statute applied to the Help Clinic’s
advertising, even though no sale was involved.3 It thus seems
entirely plausible that the California FAL, which is similarly-
worded to the North Dakota statute, could also be construed
to cover the type of advertising in which First Resort and
other LSPCs engage. Certainly, there is no authority holding
the contrary.

Further, without citing any supporting authority, the
majority implies that the regulation of false advertising is a
matter of “local concern.” Maj. Op. at 30 (“California courts
presume that a local law in an area of traditional local
concern ‘is not preempted by state statute.’” (quoting Big
Creek Lumber Co. v. Cty. of Santa Cruz, 136 P.3d 821, 827
(Cal. 2006))). First, Big Creek Lumber involved a local
zoning regulation and thus does not speak to preemption
under the FAL. In the area of false advertising, albeit in the
context of federal preemption, the California Supreme Court
has stated that “consumer protection laws such as the . . .
false advertising law . . . are within the states’ historic police

3
It is true that the North Dakota Supreme Court said that it was not
deciding whether the false advertising statute applied to the case and that
any opinion on the merits would be advisory. Id. at 182–83. It cannot be
gainsaid, however, that a preliminary injunction was issued under the
North Dakota false advertising statute and that injunction was affirmed on
appeal by the North Dakota Supreme Court.
 FIRST RESORT V. HERRERA 39

powers. . . .” Farm Raised Salmon Cases, 175 P.3d 1170 ,
1176 (Cal. 2008) (emphasis added). We have likewise stated
that “consumer protection laws have traditionally been in
state law enforcement hands.” Chae v. SLM Corp., 593 F.3d
936, 944 (9th Cir. 2010) (emphasis added) (citations omitted).

Moreover, the statewide FAL was enacted over 75 years
ago, in 1941. It has been in effect ever since, with only minor
amendments, and with few, if any, challenges from local
ordinances. The recently-enacted Ordinance, of course, has
no such lineage.

Finally, the majority also asserts that

First Resort has failed to meet its burden to
show that the FAL covers all acts proscribed
by the Ordinance. For instance, the
Ordinance prohibits disseminating untrue or
misleading statememts by LSPCs “whether by
statement or omission,” while the text of the
FAL does not mention omissions.

Maj. Op. at 32 (internal citations omitted). But this simplistic
view overlooks the substantial body of case law under the
FAL. California courts have made clear that: “Under the
False Advertising Law . . . ‘[a] perfectly true statement
couched in such a manner that it is likely to mislead or
deceive the consumer, such as by failure to disclose other
relevant information is actionable.’” Consumer Advocatets v.
Echostar Satellite Corp., 8 Cal. Rptr. 3d 22, 30 (Ct. App.
2003) (emphasis added); see also Day v. AT&T Corp., 74 Cal.
Rptr. 2d 55 (Ct. App. 1998) (“A perfectly true statement
couched in a manner that is likely to mislead or deceive the
consumer, such as by failure to disclose other relevant
40 FIRST RESORT V. HERRERA

information, is actionable under the [FAL].” (emphasis
added)); Paduano v. Am. Honda Motor Co., 88 Cal. Rptr. 3d
90, 127 (Ct. App. 2009) (same) (quoting Day). As can
plainly be seen, the majority’s assertion that the FAL does not
prohibit the making of misleading omissions ignores
California case law and is patently untrue.

We Should Certify This Question to the California
Supreme Court.

Certification is warranted if there is no
controlling precedent and the California
Supreme Court’s decision could determine the
outcome of a matter pending in our court.
This appeal not only meets both criteria, but
also presents an issue of significant public
importance.

Flo & Eddie, Inc. v. Pandora Media, Inc., 851 F.3d 950, 954
(9th Cir. 2017) (citing Cal. R. Ct. 8.548(a)).

Whether preemption applies to the Ordinance is outcome
determinative—if it does, the Ordinance must be struck
down. And, as I have shown above, the answer is far from
certain—there is no directly controlling precedent.
Moreover, the question is an important one in a broader
sense. Whether the FAL covers advertising of the kind at
issue here will dictate not only the outcome of this case, but
also whether other cities and counties throughout California
can copycat the Ordinance. Or whether the FAL itself
governs such commercial speech. This broad public interest
makes this question one particularly suitable for certification.
 FIRST RESORT V. HERRERA 41

True, certification is unnecessary when the state’s law “is
rather well-defined.” Sygenta Seeds, Inc. v. Cty. of Kauai,
842 F.3d 669, 681 (9th Cir. 2016). On the other hand, we
certify issues “because they require interpretation of the state
[law at issue] beyond that found in state or federal cases.”
Barnes-Wallace v. City of San Diego, 607 F.3d 1167, 1175
(9th Cir. 2010). I submit that it cannot seriously be
contended that the answer to the question here is “well-
defined.” On the contrary, whether preemption applies to and
ousts the Ordinance requires an interpretation of the FAL
“beyond that found in state or federal cases.” We do the
California public, as well as the litigants, a disservice by
refusing to certify this controlling question to the one body
that can provide a definitive answer: the California Supreme
Court.

• ! •

Because I remain dubitante on the state law preemption
issue, I respectfully suggest that we should certify the
question of whether the Ordinance is preempted by the FAL
to the California Supreme Court.