First Resort, Inc. v. Dennis Herrera

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…