FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHARMACEUTICAL RESEARCH No. 24-1570

AND MANUFACTURERS OF
D.C. No.
AMERICA,
6:19-cv-01996-
MO
Plaintiff - Appellee,
v.
OPINION
ANDREW R. STOLFI, in his official
capacity as Director of the Oregon
Department of Consumer and
Business Services,

Defendant - Appellant.

Appeal from the United States District Court

for the District of Oregon
Michael W. Mosman, District Judge, Presiding

Argued and Submitted February 5, 2025

Portland, Oregon

Filed August 26, 2025

Before: Carlos T. Bea, Lucy H. Koh, and Jennifer Sung,

Circuit Judges.

Opinion by Judge Koh;

Partial Concurrence and Partial Dissent by Judge Bea
2 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

SUMMARY *

First Amendment/Takings

The panel reversed the district court’s summary

judgment in favor of Plaintiff Pharmaceutical Researchers
and Manufacturers of America (“PhRMA”), in PhRMA’s
action challenging Oregon House Bill No. 4005 (“HB
4005”).
HB 4005 requires prescription drug manufacturers to
report information related to certain prescription drugs to the
Oregon Department of Consumer and Business Services
(“DCBS”). In most circumstances, HB 4005 requires DCBS
to post disclosed information on its website. However, HB
4005 expressly provides that DCBS may not publicly post
any information designated as a “trade secret” unless
disclosure is in the public interest. PhRMA brought facial
claims against HB 4005, alleging in relevant part, that:
(1) the reporting requirement violates the First Amendment
and (2) any invocation of the public-interest exception
constitutes an unconstitutional taking under the Fifth
Amendment.
The panel reversed the district court’s grant of summary
judgment in favor of PhRMA on its First Amendment claim.
The disclosures required by HB 4005, which involve
product-specific economic information about prescription
drugs that are available for purchase on the market, are
properly categorized as commercial speech. The panel
declined to reach the issue of whether the statute is subject

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 3

to intermediate scrutiny under Central Hudson Gas &

Electric Corp. v. Public Service Commission of New York,
447 U.S. 557 (1980), or a lower level of scrutiny under
Zauderer v. Office of Disciplinary Counsel of the Supreme
Court of Ohio, 471 U.S. 626 (1985), concluding that the
statute survives the more stringent standard of intermediate
scrutiny.
The panel reversed the district court’s grant of summary
judgment in favor of PhRMA on its Fifth Amendment
takings claim. Although DCBS has never invoked the
public-interest exception, PhRMA has standing and the
takings claim is ripe for review. The panel then determined
that it is appropriate to treat the claim as an alleged
regulatory taking, rather than as a categorical, per se taking.
Even assuming arguendo that a facial challenge can be made
under the test for regulatory takings set forth in Penn Central
Transportation Co. v. New York City, 438 12 U.S. 104
(1978), none of the Penn Central factors support PhRMA’s
facial takings claim.
Concurring in part and dissenting in part, Judge Bea
concurred that PhRMA’s facial takings challenge on the
Fifth Amendment ground failed because Oregon’s long-
standing public interest exception in its state trade secret
laws undermined the reasonableness of any expectation of
absolute protection of trade secrets in Oregon. Judge Bea
dissented because in his view, HB 4005’s Pricing Strategy
Disclosure Requirement compels non-commercial speech
and cannot survive strict scrutiny under the First
Amendment.
4 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

COUNSEL

Allon Kedem (argued), Elisabeth S. Theodore, Jeffrey L.

Handwerker, Matthew L. Farley, and Robert S. Jones,
Arnold & Porter Kaye Scholer LLP, Washington, D.C.;
Jonathan M. Hoffman and David Cramer, MB Law Group
LLP, Portland, Oregon; James C. Stansel, Melissa B.
Kimmel, and Joanne H. Chan, Pharmaceutical Research and
Manufacturers of America, Washington, D.C.; for Plaintiff-
Appellee.
Peenesh Shah (argued) and Denise G. Fjordbeck, Assistant
Attorneys General; Benjamin Gutman, Solicitor General;
Ellen F. Rosenblum, Attorney General; Oregon Department
of Justice, Salem, Oregon; for Defendant-Appellant.
Bryan Kao and Katelyn Wallace, Deputy Attorneys General;
Karli Eisenberg, Supervising Deputy Attorney General;
David Jones, Acting Senior Assistant Attorney General; Rob
Bonta, California Attorney General; Office of the California
Attorney General, Oakland, California; Kris Mayes, Arizona
Attorney General, Office of the Arizona Attorney General,
Phoenix, Arizona; Philip J. Weiser, Colorado Attorney
General, Office of the Colorado Attorney General, Denver,
Colorado; William Tong, Connecticut Attorney General,
Office of the Connecticut Attorney General, Hartford,
Connecticut; Kathleen Jennings, Delaware Attorney
General, Office of the Delaware Attorney General,
Wilmington, Delaware; Brian L. Schwalb, District of
Columbia Attorney General, Office of the District of
Columbia Attorney General, Washington, D.C.; Anne E.
Lopez, Hawai’i Attorney General, Office of the Hawai’i
Attorney General, Honolulu, Hawai’i; Kwame Raoul,
Illinois Attorney General, Office of the Illinois Attorney
General, Chicago, Illinois; Aaron M. Frey, Maine Attorney
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 5

General, Office of the Maine Attorney General, Augusta,

Maine; Anthony G. Brown, Maryland Attorney General,
Office of the Maryland Attorney General, Baltimore,
Maryland; Andrea J. Campbell, Commonwealth of
Massachusetts Attorney General, Office of the
Commonwealth of Massachusetts Attorney General, Boston,
Massachusetts; Dana Nessel, Michigan Attorney General,
Office of the Michigan Attorney General, Lansing,
Michigan; Keith Ellison, Minnesota Attorney General,
Office of the Minnesota Attorney General, St. Paul,
Minnesota; Aaron D. Ford, Nevada Attorney General, Office
of the Nevada Attorney General, Carson City, Nevada;
Matthew J. Platkin, New Jersey Attorney General, Office of
the New Jersey Attorney General, Trenton, New Jersey;
Raul Torrez, New Mexico Attorney General, Office of the
New Mexico Attorney General, Santa Fe, New Mexico;
Letitia James, New York Attorney General, Office of the
New York Attorney General, New York, New York; Joshua
H. Stein, North Carolina Attorney General, Office of the
North Carolina Attorney General, Raleigh, North Carolina;
Michelle A. Henry, Commonwealth of Pennsylvania
Attorney General, Office of the Pennsylvania Attorney
General, Harrisburg, Pennsylvania; Charity R. Clark,
Vermont Attorney General, Office of the Vermont Attorney
General, Montpelier, Vermont; Robert W. Ferguson,
Washington Attorney General, Office of the Washington
Attorney General, Olympia, Washington; for Amici Curiae
States of California, Arizona, Colorado, Connecticut,
Delaware, Hawai’i, Illinois, Maine, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, New York, North Carolina, Pennsylvania,
Vermont, Washington, and The District of Columbia.
6 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Margaret S. Olney, Bennett Hartman LLP, Portland,

Oregon, for Amicus Curiae Oregon Coalition for Affordable
Prescriptions.
Andrew R. Varcoe and Mariel A. Brookins, U.S. Chamber
Litigation Center, Washington, D.C.; Jeffrey S. Bucholtz,
King & Spalding LLP, Washington, D.C.; Matthew V.H.
Noller, King & Spalding LLP, San Francisco, California; for
Amicus Curiae The Chamber of Commerce of the United
States of America.

OPINION

KOH, Circuit Judge:

In 2018, the Oregon Legislative Assembly passed the

Prescription Drug Price Transparency Act, 2018 Or. Laws
Ch. 7, also referred to as House Bill No. 4005 (“HB 4005”),
codified at Or. Rev. Stat. §§ 646A.680-692. The law requires
prescription drug manufacturers to, inter alia, report to the
Oregon Department of Consumer and Business Services
(“DCBS”) information related to certain prescription drugs
including, for example, current and past list prices, generic
alternatives, and the length of time the drugs have been on
the market. Or. Rev. Stat. § 646A.689(3). In most
circumstances, HB 4005 requires DCBS to post disclosed
information on its website. Id. § 646A.689(9). However, HB
4005 expressly provides that DCBS may not publicly post
any information designated as a “trade secret” unless
disclosure is in the public interest. Id. § 646A.689(10)(a).
This appeal concerns two facial challenges against HB
4005 brought by Plaintiff-Appellee Pharmaceutical
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 7

Research and Manufacturers of America (“PhRMA”). First,

PhRMA alleges that HB 4005’s reporting requirement, Or.
Rev. Stat. § 646A.689(3), compels speech in violation of the
First Amendment. Second, PhRMA alleges that HB 4005’s
“public-interest exception,” Or. Rev. Stat.
§ 646A.689(10)(a), constitutes an uncompensated taking in
violation of the Fifth Amendment. The district court entered
summary judgment in favor of PhRMA on both claims and
entered final declaratory judgment. For the reasons below,
we reverse and remand to the district court for further
proceedings consistent with this opinion.
I. BACKGROUND AND PROCEDURAL
HISTORY
A. Statutory Background
In February 2018, the Oregon Legislative Assembly
enacted HB 4005, commonly known as the Prescription
Drug Price Transparency Act. In a preface to the bill, the
legislature explained that “the state has a substantial public
interest in the price and cost of prescription drugs,”
especially because the state acts as a “major purchaser of
prescription drugs” and “provides major tax expenditures for
health care through the tax exclusion of employer-sponsored
health insurance coverage and the deductibility of the excess
medical costs of individuals and families.” HB 4005, ch. 7.
In a statement of purpose, the legislature explained that HB
4005 is intended to “provide notice and disclosure of
information relating to the cost and pricing of prescription
drugs in order to provide accountability for prescription drug
pricing” and “permit purchasers, both public and private, as
well as pharmacy benefit managers, to negotiate discounts
and rebates for prescription drugs consistent with existing
state and federal law.” HB 4005, ch. 7.
8 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

i. The Reporting Requirement

The first provision at issue in this appeal, which the
parties refer to as the “reporting requirement,” requires
pharmaceutical manufacturers to disclose to DCBS
information related to the costs, revenues, and prices of
certain prescription drugs. 1 The challenged reporting
requirement applies only to drugs for which: (a) “[t]he price
was $100 or more for a one-month supply or for a course of
treatment lasting less than one month,” and (b) “[t]here was
a net increase of 10 percent or more in the price of the
prescription drug . . . over the course of the previous
calendar year.” Or. Rev. Stat. § 646A.689(2). For these
drugs, HB 4005 requires manufacturers to “report to
[DCBS], in the form and manner prescribed by [DCBS]” the
following information:

(a) The name and price of the prescription

drug and the net increase, expressed as a
percentage, in the price of the drug over
the course of the previous calendar year;
(b) The length of time the prescription drug
has been on the market;
(c) The factors that contributed to the price
increase;
(d) The name of any generic version of the
prescription drug available on the market;

1
For the purposes of HB 4005, a “manufacturer” is defined as “a person
that manufactures a prescription drug that is sold in [Oregon].” Or. Rev.
Stat. § 646A.689(1)(e). “Price” is defined as the drug’s wholesale
acquisition cost, i.e., the drug’s federally defined, national list price. Id.
§ 646A.689(1)(i); 42 U.S.C. § 1395w-3a(c)(6)(B).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 9

(e) The research and development costs

associated with the prescription drug that
were paid using public funds;
(f) The direct costs incurred by the
manufacturer:
(A) To manufacture the prescription
drug;
(B) To market the prescription drug;
(C) To distribute the prescription drug;
and
(D) For ongoing safety and effectiveness
research associated with the
prescription drug;
(g) The total sales revenue for the
prescription drug during the previous
calendar year;
(h) The manufacturer’s profit attributable to
the prescription drug during the previous
calendar year;
(i) The introductory price of the prescription
drug when it was approved for marketing
by the United States Food and Drug
Administration and the net yearly
increase, by calendar year, in the price of
the prescription drug during the previous
five years;
(j) The 10 highest prices paid for the
prescription drug during the previous
calendar year in any country other than
the United States;
(k) Any other information that the
manufacturer deems relevant to the price
increase . . . ; and
10 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

(l) The documentation necessary to support

the information reported under this
subsection.

Id. § 646A.689(3) (hereinafter, “HB 4005’s reporting

requirement”). 2
Following HB 4005’s enactment, DCBS promulgated
implementing regulations requiring manufacturers to
include, among other disclosures, “[t]he factors that
contributed to the price increase, including a narrative
description and explanation of all major financial and
nonfinancial factors that influenced the decision to increase
the wholesale acquisition cost of the drug product and to
decide on the amount of the increase.” Or. Admin. R. 836-
200-0530(2)(h). 3
ii. The Public-Interest Exception
The second provision at issue in this appeal, which the
parties refer to as the “public-interest exception,” relates to
the public disclosure of certain information reported to
DCBS by manufacturers. As a default, HB 4005 requires
DCBS to post information disclosed by manufacturers
publicly on the DCBS website. Or. Rev. Stat.

2
Similar reporting requirements also apply to certain new prescription
drugs introduced above a certain price threshold. Or. Rev. Stat.
§ 646A.689(6). However, PhRMA’s motion for summary judgment
discussed only the reporting requirement for existing drugs, and the
district court’s declaratory judgment was limited to the reporting
requirement for existing drugs, Or. Rev. Stat. § 646A.689(3).
3
Although the partial dissent would find several subsections of HB
4005’s reporting requirement unconstitutional, the partial dissent agrees
that multiple other subsections, specifically § 646A.689(3)(a), (b), (g),
(i), and (j), do not violate the First Amendment. Partial Dissent at 80-81.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 11

§ 646A.689(9). However, HB 4005 provides that DCBS

may not post to its website information disclosed by
manufacturers if: (1) “[t]he information is conditionally
exempt from disclosure under [Or. Rev. Stat. § 192.345] as
a trade secret; and (2) “[t]he public interest does not require
disclosure of the information.” Id. § 646A.689(10)(a). For
purposes of HB 4005, a trade secret is defined to include
“any formula, plan, pattern, process, tool, mechanism,
compound, procedure, production data, or compilation of
information which is not patented, which is known only to
certain individuals within an organization and which is used
in a business it conducts, having actual or potential
commercial value, and which gives its user an opportunity
to obtain a business advantage over competitors who do not
know or use it.” Id. § 192.345; see id. § 646A.689(10)(a).
As of May 2020, manufacturers had asserted 4,865 trade
secret claims in the 1,112 reports submitted to DCBS.
PhRMA represents that, according to an annual report
published by DCBS, the number of trade secrets claimed by
manufacturers had risen to more than 10,500 as of December
2023. Since HB 4005 was enacted in 2018, DCBS has not
disclosed any information claimed as a trade secret.
B. Procedural History
Plaintiff PhRMA is a trade association whose members
include pharmaceutical and biotechnology manufacturers.
On December 9, 2019, PhRMA sued in federal court under
42 U.S.C. § 1983, naming as defendant the director of
DCBS, acting in his official capacity (hereinafter, the
“State”). PhRMA brought four facial claims against HB
4005, alleging that: (1) HB 4005 violates the dormant
Commerce Clause, (2) HB 4005 is preempted by the federal
Defend Trade Secrets Act, 18 U.S.C. §§ 1832-1839, (3) HB
12 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

4005’s reporting requirement violates the First Amendment,

and (4) any invocation of HB 4005’s public-interest
exception constitutes an unconstitutional taking under the
Fifth Amendment. 4 PhRMA initially sought both injunctive
relief and declaratory relief, but later abandoned any claim
for injunctive relief.
PhRMA and the State filed cross-motions for partial
summary judgment. In PhRMA’s summary judgment
motion, PhRMA’s First Amendment arguments addressed
only Or. Rev. Stat. § 646A.689(3)(c), which requires
manufacturers to provide the “factors that contributed to the
price increase,” and its implementing regulation, Or. Admin.
R. 836-200-0530(2)(h).
At a hearing in January 2024, the district court made an
oral preliminary ruling on the parties’ cross-motions. The
court granted summary judgment to PhRMA on its First
Amendment and Fifth Amendment takings claims, granted
summary judgment to the State on PhRMA’s preemption
claim, and denied summary judgment to both sides on the
dormant Commerce Clause claim. In its preliminary oral
ruling on the First Amendment claim, the district court
concluded that HB 4005’s reporting requirement was
unconstitutional without referencing any specific subsection
of HB 4005. However, the court had before it only the

4
In its complaint, PhRMA also challenged Oregon’s Advance
Notification Law, House Bill No. 2658, 2019 Or. Laws Ch. 436, which
requires manufacturers to provide 60 days’ notice before increasing the
price of certain medications. PhRMA voluntarily dismissed its
challenges to the Advance Notification Law, following the resolution of
a challenge to a similar California law. See generally Pharm. Rsch. &
Manufacturers of Am. v. David, No. 2:17-cv-02573 (E.D. Cal.).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 13

parties’ argument as to one subsection: Or. Rev. Stat.

§ 646A.689(3)(c).
Following the district court’s oral preliminary ruling, the
parties submitted briefing on the proper scope of the
judgment. Although PhRMA had only made summary
judgment arguments as to Or. Rev. Stat. § 646A.689(3)(c),
PhRMA requested a judgment declaring the entirety of HB
4005’s reporting requirement facially unconstitutional. In
response, the State argued in its declaratory judgment
briefing that subsection 646A.689(3)(c) should be severed
from the remainder of the statute.
In February 2024, the district court entered a declaratory
judgment. Pharm. Rsch. & Manufacturers of Am. v. Stolfi,
No. 6:19-CV-01996, 2024 WL 1144401 (D. Or. Feb. 16,
2024) (“Declaratory Judgment”). In relevant part, the court
declared that HB 4005’s reporting requirement violates the
First Amendment and is therefore unenforceable. Id.
Although the district court had previously provided no
analysis of any subsection of HB 4005’s reporting
requirement other than § 646A.689(3)(c) and provided no
analysis of any subsection of HB 4005 in the declaratory
judgment, it declared the entirety of § 646A.689(3)
unconstitutional. As the district court later explained in its
written opinion, although the district court acknowledged
the State’s argument that PhRMA’s First Amendment
summary judgment briefing addressed only
§ 646A.689(3)(c), the court declined to sever this subsection
from the statute because it concluded that the State had
waived any severability argument by failing to address
severability in its opposition to PhRMA’s summary
judgment motion, which only challenged § 646A.689(3)(c).
The court further declared that the publication of trade
secrets under the public-interest exception,
14 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

§ 646A.689(10)(a), constitutes a taking under the Fifth

Amendment, and that any invocation of the exception
without simultaneously providing just compensation for that
taking would accordingly violate the Fifth Amendment. Id.
In March 2024, the district court issued a written opinion
supporting its declaratory judgment. Pharm. Rsch. &
Manufacturers of Am. v. Stolfi, 724 F. Supp. 3d 1174 (D. Or.
2024) (“Summary Judgment Opinion”). As to PhRMA’s
First Amendment claim, the court first concluded that,
“[v]iewing the context of the disclosures as a whole, the
speech at issue here is best categorized as commercial
speech.” Id. at 1197-99. The district court next considered
which of the two levels of scrutiny governing commercial
speech—intermediate scrutiny under Central Hudson Gas &
Electric Corp. v. Public Service Commission of New York,
447 U.S. 557 (1980), or the more permissive standard set
forth in Zauderer v. Office of Disciplinary Counsel of the
Supreme Court of Ohio, 471 U.S. 626 (1985)—should be
applied to PhRMA’s claim. Id. at 1199-200. The court
explained that, for Zauderer to apply, the speech at issue
“must disclose ‘purely factual and uncontroversial
information.’” Id. at 1199 (quoting Nat’l Ass’n of Wheat
Growers v. Bonta, 85 F.4th 1263, 1275 (9th Cir. 2023)). The
court determined that “the only non-factual information HB
4005 asks for is the pharmaceutical companies’ narrative
explanations justifying certain increases in price,” but
explained that “this is not the kind of non-factual
information courts consider problematic under Zauderer.”
Id. Nonetheless, the court determined that because HB 4005
required manufacturers to “speak on a controversial topic
and, in particular, justify why they fall on one side . . . of that
controversy,” Zauderer review was inappropriate. Id. at
1200. Applying Central Hudson, the district court held that
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 15

HB 4005’s reporting requirement failed intermediate

scrutiny, concluding both that the State had failed to show
how HB 4005 would directly advance its legislative goals,
and that the State had failed to establish that HB 4005 was
narrowly tailored to advance these goals. Id. at 1200-02.
Again, the district court’s analysis did not address any
subsections of HB 4005’s reporting requirement except
§ 646A.689(3)(c).
As to PhRMA’s Fifth Amendment takings claim, the
district court first concluded that PhRMA has standing to
bring the claim, id. at 1186, and that the claim was ripe for
review, id. at 1187-88. Turning to the merits, the court then
determined that it was appropriate to treat PhRMA’s claim
as a regulatory taking, rather than a per se physical taking,
and apply the regulatory takings test set forth in Penn
Central Transportation Co. v. New York City, 438 U.S. 104
(1978). Id. at 1188-89. Applying the three factors articulated
in Penn Central, the court determined that “all the factors
support finding a regulatory taking” and thus concluded that
any invocation of the public-interest exception constitutes an
unconstitutional taking. Id. at 1189-90. Finally, the court
held that declaratory relief was an appropriate remedy,
explaining that “[u]nless just compensation is provided, a
taking of private property for public use occurs with each
mandated public disclosure.” Id. at 1190-91.
In its declaratory judgment, the district court declared the
entirety of HB 4005’s reporting requirement
unconstitutional under the First Amendment and declared
any invocation of the public-interest exception
unconstitutional under the Fifth Amendment. Finding “no
just reason for delay,” the court entered partial final
judgment on these claims under Federal Rule of Civil
16 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Procedure 54(b). Declaratory Judgment, 2024 WL 1144401

at *1. The State timely appealed.
II. JURISDICTION AND STANDARD OF
REVIEW
We have jurisdiction to review the district court’s partial
final judgment under 28 U.S.C. § 1291. We review the
district court’s summary judgment rulings de novo. Branch
Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th
Cir. 2017). Under Federal Rule of Civil Procedure 56, a
court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
III. DISCUSSION
A. First Amendment Claim
We first address PhRMA’s facial First Amendment
challenge. For the reasons below, we hold that HB 4005’s
reporting requirement is best categorized as commercial
speech and survives applicable First Amendment scrutiny.
i. Determining the Applicable Level of Scrutiny
a. Government Reporting Requirements
The State argues that HB 4005 merely requires
manufacturers to report specific information to a
government agency, which then makes that information
available to the public unless it is a confidential trade secret.
See Or. Rev. Stat. § 646A.689(3). And, as the State points
out, statutes and regulations that require regulated entities
and individuals to report information to a government
agency are a common feature of modern government. See,
e.g., 26 U.S.C. § 6033 (requiring tax-exempt organizations
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 17

to report internal financial information to the Internal

Revenue Service (“IRS”)); 17 C.F.R. § 229.402(b)
(requiring corporations to submit information regarding
executive compensation to the Securities and Exchange
Commission (“SEC”)); 40 C.F.R. §§ 705.10, 705.15
(requiring manufacturers of certain chemical substances to
report information regarding chemical use and processing to
the Environmental Protection Agency (“EPA”)); 21 C.F.R.
§§ 803.1, 803.20 (requiring medical device manufacturers to
report adverse medical events related to their products to the
Food and Drug Administration (“FDA”)); see also Pharm.
Care Mgmt. Ass’n v. Rowe, 429 F.3d 294, 316 (1st Cir. 2005)
(controlling concurrence) (referring to the “thousands” of
commonplace reporting requirements “on the books”). For
ease, we refer to such laws as “government reporting
requirements.” Notably, it is also commonplace for statutes
and regulations to authorize or require agencies to make the
information that must be disclosed under such reporting
requirements available to the public. See, e.g., 26 U.S.C.
§ 6104(a) (requiring the IRS to make certain information in
reports from tax-exempt organizations available to the
public); 40 C.F.R. § 705.30(h) (authorizing the EPA to
publicize chemical processing information); 21 C.F.R.
§ 803.9 (authorizing the FDA to publicly disclose
information in medical device reports).
Government reporting requirements are distinguishable
from laws that require a private individual or entity to
communicate information directly to another private
individual or entity or the general public. See, e.g., Am.
Beverage Ass’n v. City & County of San Francisco, 916 F.3d
749, 753-54 (9th Cir. 2019) (en banc) (ordinance requiring
health warning on advertisements for sugar-sweetened
beverages); Nat’l Ass’n of Wheat Growers, 85 F.4th 1263,
18 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

1266 (9th Cir. 2023) (law requiring businesses to provide

carcinogen warnings if products expose consumers to
glyphosate); CTIA—The Wireless Ass’n v. City of Berkeley,
928 F.3d 832, 837-38 (9th Cir. 2019) (ordinance requiring
retailers to provide warnings to customers about federal
radio-frequency radiation exposure guidelines for cell phone
users). For ease, we refer to laws that compel certain
information to be communicated directly from one private
entity to another as “direct disclosure requirements.”
Laws that require disclosures of information, including
both government reporting requirements and direct
disclosure requirements, are subject to First Amendment
scrutiny. See NetChoice, LLC v. Bonta, 113 F.4th 1101, 1117
(9th Cir. 2024) (“[T]he forced disclosure of information . . .
triggers First Amendment scrutiny.”). However, such laws
may be subject to different levels of scrutiny: rational basis
review, intermediate scrutiny, or strict scrutiny.
For direct disclosure requirements, the analytical path for
determining the applicable level of scrutiny is fairly well-
settled. A direct disclosure requirement that “compel[s]
individuals to speak a particular message” or “alter[s] the
content” of protected speech is generally viewed as a
content-based “compelled speech” requirement subject to
strict scrutiny, unless the content of the direct disclosure
requirement qualifies as “commercial speech,” which is
entitled to less constitutional protection. Compare Nat’l Inst.
of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766
(2018); Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 795 (1988), with Cent. Hudson, 447 U.S. at 562-
63, and Zauderer, 471 U.S. at 651; cf. Env’t Def. Ctr., Inc.
v. EPA, 344 F.3d 832, 849 (9th Cir. 2003) (recognizing that
government “may not constitutionally require an individual
to disseminate an ideological message” but concluding that
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 19

an EPA rule “requiring a provider of storm sewers . . . to

educate the public about the impacts of stormwater discharge
on water bodies and . . . the hazards of improper waste
disposal falls short of compelling such speech”). If the direct
disclosure requirement regulates “commercial speech,” then
courts apply either intermediate scrutiny, see Cent. Hudson,
447 U.S. at 564-66, or a lower level of scrutiny akin to
rational basis review, see Zauderer, 471 U.S. at 651. Nat’l
Ass’n of Wheat Growers, 85 F.4th at 1266, 1275.
For government reporting requirements, however, the
correct analytical path is less clear. The parties advocate for
two different approaches for determining the applicable
level of scrutiny. Under PhRMA’s preferred approach, all
government reporting requirements are, for First
Amendment purposes, the legal equivalent of direct
disclosure requirements and should be analyzed the same
way. That is, government reporting requirements are
categorically viewed as content-based “compelled speech”
requirements that are presumptively subject to strict
scrutiny. It is important to recognize that, under this
approach, government reporting requirements as a general
rule are subject to strict scrutiny—and the only exception is
for reports that qualify as “commercial speech” entitled to
less constitutional protection. 5 For ease, we refer to this
approach as the “presumptively strict approach.”

5
It is also important to recognize, in evaluating the merits of PhRMA’s
preferred analytical approach, that a content-based, compelled speech
requirement that does not qualify as a commercial speech regulation is
“presumptively unconstitutional” and must be struck down unless it
withstands strict scrutiny. See Nat’l Inst. of Fam. & Life Advocs., 585
U.S. at 766.
20 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

The State argues for a different approach for determining

the applicable level of scrutiny. The State’s alternative does
not categorically equate government reporting requirements
with direct disclosure requirements; nor does it categorically
equate government reporting requirements with “compelled
speech” requirements presumptively subject to strict
scrutiny. However, if a government reporting requirement
mandated that a covered entity or individual make a political
or ideological statement, then it would be viewed as
compelled speech that is presumptively subject to strict
scrutiny. 6 See United States v. Sindel, 53 F.3d 874, 878 (8th
Cir. 1995) (“A First Amendment protection against
compelled speech . . . has been found only in the context of
governmental compulsion to disseminate a particular
political or ideological message.”); cf. Full Value Advisors,
LLC v. SEC, 633 F.3d 1101, 1108 (D.C. Cir. 2011) (“First
Amendment concerns are paramount when the Government
compels a speaker to endorse a position contrary to his
beliefs, or to ‘affirm[] a belief and an attitude of mind’ he
opposes.” (alteration in original) (quoting W. Va. Bd. of
Educ. v. Barnette, 319 U.S. 624, 633 (1943))). Thus, under
the State’s alternative approach, a government reporting
requirement may be subject to strict scrutiny, but that is not
presumptively the correct standard of review. For ease, we
refer to this alternative as the “potentially strict approach.”

6
Of course, government reporting requirements are also potentially
subject to heightened or strict scrutiny under various other constitutional
doctrines. See, e.g., Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 57-76
(1974) (considering First, Fourth, and Fifth Amendment challenges to a
government reporting requirement); Ams. for Prosperity Found. v.
Bonta, 594 U.S. 595, 602, 611-19 (2021) (considering a freedom of
association challenge to a government reporting requirement).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 21

In our view, there are several compelling reasons to

follow the State’s potentially strict approach. For one, as the
State notes, two of our sister circuits have taken this
approach in cases addressing First Amendment challenges to
government reporting requirements. In doing so, they have
explicitly rejected the argument that government reporting
requirements necessarily compel speech—and therefore are
presumptively subject to strict scrutiny—simply because
they mandate the disclosure of specific information.
In United States v. Sindel, 53 F.3d 874 (8th Cir. 1995),
the Eighth Circuit considered a First Amendment challenge
to IRS Form 8300, which requires taxpayers to report
information related to cash transactions, including “the
name, address, tax identification number, and other
information about each payor and each person on whose
behalf payment is made.” Id. at 875. The court rejected the
argument that Form 8300 “compel[s] speech,” holding that
although the “protection against compelled speech” applies
“in the context of governmental compulsion to disseminate
a particular political or ideological message,” Form 8300
“requires [the plaintiff] only to provide the government with
information which his clients have given him voluntarily,
not to disseminate publicly a message with which he
disagrees.” Id. at 878.
In Full Value Advisors, LLC v. SEC, 633 F.3d 1101 (D.C.
Cir. 2011), the D.C. Circuit considered a First Amendment
challenge to an SEC regulation requiring institutional
investment managers to report quarterly to the SEC “the
names, shares, and fair market value of the securities” over
which the managers exercise control. Id. at 1104. This
information was made publicly available unless managers
sought and received an individual exemption from the SEC.
Id. at 1104-05. Because exemption requests might require
22 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

managers to, for example, “provide a description of their

investment strategy and explain why disclosure would be
detrimental,” the plaintiff argued that the regulation
compelled it to speak in violation of the First Amendment.
Id. at 1105-06. However, the court applied a level of scrutiny
“akin to the general rational basis test,” and concluded that
the regulation satisfied this standard. Id. at 1109 (citation
omitted). 7 Like the Eighth Circuit in Sindel, the D.C. Circuit
rejected the plaintiff’s argument that the required reports to
the SEC were “a form of compelled speech,” holding that the
regulation was not “a veiled attempt to ‘suppress unpopular
ideas or information or manipulate the public debate through
coercion rather than persuasion.’” Id. at 1108-09 (quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).
A First Circuit case, Pharmaceutical Care Management
Association v. Rowe, 429 F.3d 294 (1st Cir. 2005), is also
instructive. Rowe involved a direct disclosure requirement,
not a government reporting requirement: the challenged state
law required pharmacy benefit managers to disclose
conflicts of interest and certain financial information to third
parties with which they entered into contracts. Id. at 299.
Nonetheless, the First Circuit’s reasons for rejecting the
plaintiff ’s argument that the challenged disclosure
requirement should be viewed as “compelled speech”
suggest that it, too, would use the potentially strict approach

7
Although the plaintiff in Full Value Advisors challenged subsections of
the SEC regulation at issue that required public disclosures of its
investment positions, the D.C. Circuit determined that this issue was not
ripe for review and cabined its analysis to disclosures made only to the
SEC. 633 F.3d at 1106-07, 1110.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 23

to analyze a government reporting requirement. As the First

Circuit explained:

[The plaintiff’s] First Amendment claim is

completely without merit. So-called
“compelled speech” may under modern
Supreme Court jurisprudence raise a serious
First Amendment concern where it effects a
forced association between the speaker and a
particular viewpoint. See, e.g., Wooley v.
Maynard, 430 U.S. 705 (1977) (requiring all
New Hampshire drivers to display “Live Free
or Die” on their license plates); Miami
Herald Publ’g Co. v. Tornillo, 418 U.S. 241
(1974) (requiring newspapers to afford
political candidates a right to reply to
editorial critiques). What is at stake here, by
contrast, is simply routine disclosure of
economically significant information
designed to forward ordinary regulatory
purposes—in this case, protecting covered
entities from questionable [pharmacy benefit
manager] business practices. There are
literally thousands of similar regulations on
the books—such as product labeling laws,
environmental spill reporting, accident
reports by common carriers, SEC reporting as
to corporate losses and (most obviously) the
requirement to file tax returns to government
units who use the information to the obvious
disadvantage of the taxpayer. The idea that
these thousands of routine regulations require
an extensive First Amendment analysis is
mistaken. Zauderer, 471 U.S. 626, makes
24 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

clear “that an advertiser’s rights are

adequately protected as long as disclosure
requirements are reasonably related to the
State’s interest in preventing deception of
consumers.” Id. at 651. This is a test akin to
the general rational basis test governing all
government regulations under the Due
Process Clause. The test is so obviously met
in this case as to make elaboration pointless.

Id. at 316 (controlling concurrence).

Although Sindel and Full Value Advisors did not address
laws that specifically required the government to make
reported information available to the public, 8 the Supreme
Court’s reasoning in Village of Schaumburg v. Citizens for a
Better Environment, 444 U.S. 620 (1980), and Riley v.
National Federation of the Blind of North Carolina, Inc.,
487 U.S. 781 (1988), suggests that public dissemination of
regulatory information collected by the government should
not necessarily change the analytical framework. Cf.
NetChoice, 113 F.4th at 1117-19 (rejecting the state’s
argument that a confidential government reporting
requirement cannot unconstitutionally compel speech and
subjecting the requirement to strict scrutiny).
In Village of Schaumburg, the Supreme Court struck
down a local ordinance that required charitable
organizations—in order to be eligible for a permit to engage
in solicitation—to use a certain amount of their solicitation

8
Even where a statute or regulation does not specifically provide for the
public disclosure of reported information, that information may be made
available to the public through federal or state public records laws. See,
e.g., 5 U.S.C. § 552 (Freedom of Information Act).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 25

proceeds towards their charitable missions. 444 U.S. at 623-

24. The Court held that this requirement did not withstand
strict scrutiny and was not sufficiently tailored to the
Village’s asserted interest in fraud prevention. Id. at 636-37.
It explained that “[t]he Village’s legitimate interest in
preventing fraud can be better served by measures less
intrusive than a direct prohibition on solicitation,” including
through Illinois’s existing financial disclosure requirements
for charitable organizations. Id. at 637-38. Those state
reporting requirements required charitable organizations to
submit to the state a registration statement detailing “a
variety of information about the organization and its
fundraising activities,” and these reports were “open to
public inspection.” Id. at 830 n.5 & 837 n.12.
In Riley, the Supreme Court considered the
constitutionality of a direct disclosure requirement: the
challenged North Carolina statute required fundraisers to
disclose to potential donors the percentage of funds they had
turned over to charities in the previous year when soliciting
charitable donations. 487 U.S. at 786. The Court concluded
that the direct disclosure requirement “alter[ed] the content”
of fundraisers’ speech during charitable solicitations, and it
therefore applied strict scrutiny. Id. at 795, 798. 9 In

9
In Riley, the state argued that, even if charitable solicitations generally
are fully protected speech, the challenged statute “regulate[d] only
commercial speech” because the information the fundraiser was
compelled to disclose to potential donors “relate[d] only to the
professional fundraiser’s profit from the solicited contribution.” Id. at
795. The Supreme Court assumed without deciding that speech related
to the fundraiser’s “financial motivation for speaking . . . in the abstract
is indeed merely ‘commercial,’” but held that it lost “its commercial
character when it [wa]s inextricably intertwined with” fully protected
charitable solicitations—and such “intertwining” is what the challenged
direct disclosure law effectively required. Id. at 795-96.
26 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

concluding that the statute was not adequately tailored, the

Court explained that “more benign and narrowly tailored
options [were] available.” Id. at 800. Most relevant here, the
Court explained that “as a general rule, the State may itself
publish the detailed financial disclosure forms it requires
professional fundraisers to file. This procedure would
communicate the desired information to the public without
burdening a speaker with unwanted speech during the course
of a solicitation.” Id. In other words, at the same time that
the Court held that a direct disclosure requirement—a law
mandating disclosure of controversial financial information
in the context of solicitation—was a “compelled speech”
requirement subject to strict scrutiny, the Court strongly
implied that a government reporting requirement was not—
even if it would require fundraisers to report the same
controversial financial information and disseminate it to the
public. 10 See also id. at 795 (“[W]e do not suggest that States

10
In American Target Advertising, Inc. v. Giani, 199 F.3d 1241 (10th
Cir. 2000), the Tenth Circuit applied Riley’s reasoning to evaluate a First
Amendment challenge to a Utah statute that, in relevant part, required
professional fundraising consultants to meet certain registration and
disclosure requirements. Id. at 1248. The statute required fundraisers to
provide the state’s consumer protection agency with, among other things,
“a satisfactory statement of the factual basis for the projected percentage
[of contributions] and projected anticipated revenues provided to the
charitable organization, and if a flat fee is charged, documentation to
support the reasonableness of such flat fee.” Utah Code § 13-22-
9(1)(b)(vii)(D). Similar to the regulatory regime created by HB 4005, the
state made these fundraiser reports available to the public. See Am.
Target Advert., Inc. v. Giani, 23 F. Supp. 2d 1303, 1307 (D. Utah 1998).
The Tenth Circuit recognized that charitable solicitations are protected
speech but determined that the statute was a content-neutral regulation
of that speech, and was therefore subject to only intermediate scrutiny.
Am. Target Advert., 199 F.3d at 1247. Citing Riley, the court concluded
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 27

must sit idly by and allow their citizens to be defrauded. . . .

North Carolina may constitutionally require fundraisers to
disclose certain financial information to the State, as it has
since 1981.” (citing Sec’y of State of Md. v. Joseph H.
Munson Co., 467 U.S. 947, 967 n.16 (1984))).
To be clear, a law requiring a regulated entity to express
or endorse a political or ideological message would still be
subject to strict scrutiny under the State’s potentially strict
approach. But the potentially strict approach would provide
an analytical framework that would distinguish between
government reporting requirements that “effect[] a forced
association between the speaker and a particular viewpoint”
and those involving only “routine disclosure of
economically significant information designed to forward
ordinary regulatory purposes” which typically will not
“require an extensive First Amendment analysis.” Rowe, 429
F.3d at 316 (controlling concurrence); see also id. (“The idea
that these thousands of routine [government reporting]
regulations require an extensive First Amendment analysis
is mistaken.”).
Another advantage of using the potentially strict
approach to determine the applicable level of scrutiny is that
it does not require us to evaluate, as a threshold question,
whether the government reporting requirement should be
categorized as a regulation of “commercial speech” by
applying tests that were developed in a very different factual

that the registration and disclosure requirements were narrowly tailored

to the state’s substantial interest in fighting fraud. Id. at 1248. Notably,
the court did not treat the registration and disclosure requirements as
“compelled speech” subject to strict scrutiny, instead applying
intermediate scrutiny, even though the requirements impacted fully
protected charitable solicitations, not lesser-protected commercial
speech.
28 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

context. The commercial speech doctrine has primarily

evolved in the context of regulations of commercial entities’
advertising, including laws that restricted advertising, see
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 62-63,
66-68 (1983); Cent. Hudson, 447 U.S. at 558-60, 561-63;
and laws that required advertisements to contain specific
disclosures (i.e., direct disclosure requirements), see
Zauderer, 471 U.S. at 633, 637-38.
Because the commercial speech doctrine originated in
this advertising context, the traditional legal tests for
determining whether speech is “commercial” reflect this
paradigm. The Court set forth these tests in Bolger v. Youngs
Drug Products Corp., 463 U.S. 60 (1983). There, the Court
considered a federal law that restricted the mailing of
unsolicited advertisements for contraceptive devices. Id. at
61-62. The plaintiff, a manufacturer of contraceptives,
sought to mail unsolicited advertisements, including
informational pamphlets promoting its products but also
discussing venereal disease and family planning. Id. at 67-
68. It challenged the application of the federal statute to its
proposed mailings on First Amendment grounds. Id. at 63.
The plaintiff argued that the restricted speech was not
commercial (and therefore fully protected) because the
proposed mailings included non-commercial, educational
information. Id. at 65-66.
In determining that the plaintiff’s proposed mailings
were “properly characterized as commercial speech,” the
Court explained that the “core notion of commercial speech
[is] ‘speech which does no more than propose a commercial
transaction.’” Id. at 66-67 (quoting Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748, 762 (1976)) (cleaned up). The Court also identified
three, non-dispositive factors that reflected the commercial
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 29

nature of the informational pamphlets in particular: (1) the

pamphlets were “conceded to be advertisements,” (2) they
referred to particular products, and (3) the plaintiff had an
“economic motivation” for mailing the pamphlets. Id. at 66-
67.
The tests articulated in Bolger were designed to
determine the appropriate level of scrutiny to apply to laws
that regulate voluntary speech from a regulated commercial
entity to a public audience. They are therefore inapt for
determining what level of scrutiny to apply to speech in an
entirely different context—mandatory reports from the
regulated entity to the government, which the government
may then make available to the public. The submission of
information to the government pursuant to a government
reporting requirement typically does not “propose a
commercial transaction,” even if it involves the disclosure of
information directly related to commercial transactions. Id.
at 66 (emphasis added). It also does not neatly fit two of the
factors identified in Bolger: A report to the government is
not an “advertisement,” and regulated entities and
individuals typically produce these reports out of legal
obligation, not economic motivation. Id. at 66-67.
Because of this conceptual mismatch, applying these
tests strictly in the context of government reporting
requirements produces counterintuitive results. Cf. Nat’l
Ass’n of Mfrs. v. SEC, 800 F.3d 518, 535 (D.C. Cir. 2015)
(Srinivasan, J., dissenting) (explaining why “confining
Zauderer to advertisement or product labels gives rise to
highly curious results”). It would be odd to subject speech in
a consumer-facing advertisement to less scrutiny than
speech in an annual report filed with a state regulatory body
simply because it better fits the doctrinal tests for defining
commercial speech. Consider, for example, if HB 4005
30 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

required manufacturers to prominently display information

about price increases in direct-to-consumer television
advertisements, rather than in annual reports filed with
DCBS. In that circumstance, the traditional “definitions” of
commercial speech would likely be satisfied, and yet,
disclosure of this information by the State in DCBS reports,
rather than by a manufacturer in an advertisement, is a less
burdensome disclosure obligation. See Riley, 487 U.S. at
800-01. That is, “[i]t would be strange . . . if the same
compelled . . . disclosure—providing the same information
about the same product—commanded more demanding First
Amendment scrutiny if it appeared in a single yearly report”
instead of in every television advertisement. Nat’l Ass’n of
Mfrs., 800 F.3d at 535 (Srinivasan, J., dissenting). This
counterintuitive result underscores that, as a general matter,
it makes little sense to determine the appropriate level of
scrutiny to apply to government reporting requirements
using the traditional definitions of commercial speech. 11

11
The combination of the presumptively strict approach with the partial
dissent’s view of Bolger’s commercial speech standard would also
produce results that are inconsistent with the Supreme Court’s reasoning
in Riley. Recall that in Riley, the Court concluded that the challenged
direct disclosure requirement failed strict scrutiny in part because there
was a less restrictive alternative: the state could “constitutionally” serve
its governmental interests by requiring professional fundraisers to file
“detailed financial disclosure forms” specifying the percentage of
charitable donations retained by the fundraiser and then “publish[ing]”
those forms. 487 U.S. at 795, 800. Under the presumptively strict
approach, that government reporting requirement would be subject to
strict scrutiny unless the reported information qualified as commercial
speech under Bolger. But mandatory reports to the government about
how professional fundraisers profit from charitable donations do not
“propose a commercial transaction,” they are not “advertisements,” and
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 31

In two recent cases, our court has applied strict scrutiny

to evaluate government reporting requirements. However, as
explained below, neither of those cases require us to adopt
PhRMA’s presumptively strict approach. In NetChoice, LLC
v. Bonta, 113 F.4th 1101 (9th Cir. 2024), we considered a
challenge to a California law that required “online
businesses” to prepare reports “identifying, for each offered
online service, product, or feature likely to be accessed by
children, any risk of ‘material detriment to children that arise
from the data management practices of the business.’” Id. at
1109, 1116 (quoting Cal. Civ. Code § 1798.99.31). Every
covered business was also required to assess “factors related
to ‘harm’ prior to offering a new online service, product, or
feature that is likely to be accessed by children.” Id. at 1116.
Consistent with the potentially strict approach, we first
addressed the question whether the challenged “DPIA report
requirement” compelled speech, and we concluded that it
“clearly compels speech by requiring covered businesses to
opine on potential harm to children.” Id. at 1117. We further
explained that the reporting requirement “invites First
Amendment scrutiny because it deputizes covered
businesses into serving as censors for the State” by requiring
business to make subjective decisions on whether or not
material is “potentially harmful to children.” Id. at 1118.
That is, because the government reporting requirement
mandated the covered entity to make a subjective opinion

they are not produced out of an “economic motivation.” Bolger, 463 U.S.
at 66-67. Further, the Court in Riley described the financial disclosures
at issue as “unfavorable” to the fundraisers. 487 U.S. at 800. Therefore,
under the presumptively strict approach and the partial dissent’s view of
Bolger, the less restrictive and “constitutional” alternative identified by
the Riley Court would be unconstitutional unless it withstood strict
scrutiny.
32 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

statement on a political issue, we concluded it was properly

analyzed as a compelled speech requirement. 12 Next, we
determined the appropriate level of scrutiny to apply. Id. at
1119. Because we had determined that the DPIA reporting
requirement was a compelled speech requirement, it would
be subject to strict scrutiny unless it regulated only
“commercial speech . . . subject to a lesser standard than
strict scrutiny.” Id. at 1119-20. In resolving that issue, we
again noted that the challenged requirement compelled
covered entities to “opine on potential speech-based harms
to children . . . disconnected from any economic
transaction,” and we concluded that “the subjective opinions
compelled by [the law] are best classified as non-commercial
speech” and therefore applied strict scrutiny. Id. at 1119-21.
NetChoice very briefly considered the fact that the
challenged law was a government reporting requirement,
and it did so only in rejecting the state’s argument that the
First Amendment is “wholly inapplicable” to government
reporting requirements. 13 Id. at 1117-18. In other words,

12
The partial dissent suggests that the NetChoice panel did not view the
DPIA report requirements as compelling any political or ideological
messages, seemingly because the panel never used the words “political”
or “ideological.” Partial Dissent at 104-05. But the NetChoice panel
made quite clear that it viewed the DPIA reporting requirement as
“requir[ing] businesses to go beyond opining about their products or
services to opine on highly controversial issues of public concern.” 113
F.3d at 1120.
13
NetChoice relied on Americans for Prosperity Foundation v. Bonta,
594 U.S. 595 (2021), for this proposition. We note that Americans for
Prosperity Foundation considered the First Amendment right to
association, not the compelled speech doctrine. That case concerned a
challenge to a California law that required charitable organizations to
submit Schedule B of IRS Form 990 to the state. Id. at 602. (Schedule B
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 33

NetChoice neither considered whether, nor conclusively

held that, government reporting requirements are
categorically compelled speech requirements presumptively
subject to strict scrutiny.
Next, in X Corp. v. Bonta, 116 F.4th 888 (9th Cir. 2024),
we considered a challenge to a different California law,
California’s Assembly Bill 587 (“AB 587”), that required
large social media companies to report to the state, among
other things, whether and how they define several categories
of content for purposes of their terms of service, including:
hate speech or racism, extremism or radicalization,
disinformation or misinformation, harassment, and foreign
political interference. Id. at 894. But in X Corp., unlike in
NetChoice, we did not begin by expressly considering
whether the challenged government reporting requirement
compelled speech, and we did not answer that question by
determining whether it required the covered entity to make
subjective, political or ideological opinion statements.
Compare NetChoice, 113 F.4th at 1116-18, with X Corp.,
116 F.4th at 899-900. Instead, we skipped over that question
and started our analysis by asking whether the required
“Content Category Reports” were commercial speech. Id. at
901. Then, we concluded that AB 587 did not regulate
commercial speech because it required companies “to recast
[their] content-moderation practices into language
prescribed by the State, implicitly opining on whether and
how certain controversial categories of content should be

requires organizations to disclosure the names and addresses of

significant donors. Id.) The Supreme Court concluded that the law
violated First Amendment associational rights. Id. at 611-19. There is no
indication, however, that the Court viewed any aspect of the reporting
requirement as a content-based compelled speech requirement subject to
strict scrutiny.
34 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

moderated.” Id. at 901. And we therefore applied strict

scrutiny. Id. at 903.
In both NetChoice and X Corp., our application of strict
scrutiny ultimately turned on the subjective and political or
ideological nature of the information that the regulations
required. Specifically, in both cases, we concluded that the
government reporting requirement at issue forced regulated
entities to opine on fraught political issues, such as what
online content is “harmful to children” or what content
constitutes “hate speech or racism.” See NetChoice, 113
F.4th at 1117-18; X Corp., 116 F.4th at 901-02. We therefore
applied the rule that laws that regulate speech based on its
expressive content, by “compel[ling] speakers to utter or
distribute speech bearing a particular message,” are subject
to strict scrutiny. Turner Broad., 512 U.S. at 642.
Using the potentially strict approach would have led to
the same conclusion in both cases. That is, using the
potentially strict approach, we would still conclude that the
government reporting requirements at issue in NetChoice
and X Corp. must be subject to strict scrutiny because they
compelled private entities to make subjective, ideological
opinion statements to the government by identifying what
online content is “harmful to children” or what content
constitutes “hate speech or racism.” See 113 F.4th at 1117-
18; 116 F.4th at 901-02. Because laws that require speakers
to disseminate ideological messages are subject to strict
scrutiny—whether in a government report or an
advertisement—we would apply that standard. See Turner
Broad., 512 U.S. at 642. However, we would reach this
conclusion without applying the inapt commercial speech
standards along the way. Rather, we would cut to the chase:
because the government reporting requirements at issue in
those cases mandate the “report” of political or ideological
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 35

statements, they are subject to strict scrutiny—regardless of

whether they otherwise look like commercial speech
regulations under Bolger.
PhRMA reads X Corp. as effectively adopting the
presumptively strict approach. That is, it reads X Corp. as
supporting the broad proposition that, because government
reporting requirements mandate the disclosure of specific
information, they are categorically content-based, compelled
speech regulations subject to strict scrutiny unless they
qualify as regulations of “commercial speech.” We are not
persuaded by this reading of X Corp. for several reasons.
First, as explained above, our application of strict
scrutiny in X Corp. turned on the fact that AB 587 required
social media companies to “speak a particular message” by
“opining on whether and how certain controversial
categories of content should be moderated.” Id. 899-901
(citation omitted). X Corp. did not expressly hold that all
government reporting requirements are compelled speech
requirements subject to strict scrutiny unless they regulate
commercial speech. Indeed, reading X Corp. in this way
would create considerable tension with the decisions of our
sister circuits and with the Supreme Court’s reasoning in
Riley and Village of Schaumburg, which suggests that many
government reporting requirements are not subject to strict
scrutiny, regardless of whether they can be categorized as
regulations of commercial speech. Second, and relatedly, X
Corp. also did not reach the question of what level of
scrutiny should apply if a government reporting requirement
does not qualify as a “commercial speech” regulation but
does not compel the regulated entity to make subjective
political or ideological statements. See, e.g., United States v.
Kirilyuk, 29 F.4th 1128, 1134 (9th Cir. 2022) (“[C]ases are
not precedential for propositions not considered.” (internal
36 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

quotation marks and citation omitted)). Third, X Corp. did

not consider the potential consequences of presumptively
treating all government reporting requirements as compelled
speech requirements subject to strict scrutiny.
Although, in our view, using the potentially strict
approach followed by our sister circuits would be more
doctrinally sound and avoid unintended consequences, we
do not need to fully resolve whether X Corp. requires us to
use the presumptively strict approach in this case, because
both approaches lead us to the same conclusion. As
explained further below, using the presumptively strict
approach, we conclude that HB 4005’s reporting
requirement qualifies as a commercial speech regulation
subject to either intermediate scrutiny or lower scrutiny
under Zauderer, and that it withstands intermediate scrutiny.
HB 4005 is distinguishable from the laws challenged in X
Corp. and NetChoice because it does not compel the covered
entities to make subjective political or ideological
statements. For that same reason, HB 4005 would not be
subject to strict scrutiny under the potentially strict approach
discussed above. 14
b. Commercial Speech
Under the presumptively strict approach, to determine
the level of scrutiny applicable to HB 4005’s reporting
requirement, we must first consider whether HB 4005’s
reporting requirement is properly categorized as commercial
speech. As discussed, the “core notion of commercial speech
[is] ‘speech which does no more than propose a commercial

14
PhRMA’s First Amendment challenge focuses on its argument that
HB 4005’s reporting requirement unconstitutionally compels speech. It
does not argue HB 4005’s reporting requirement should be subject to
strict scrutiny for any other reason.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 37

transaction.’” Bolger, 463 U.S. at 66 (quoting Va. State Bd.

of Pharmacy, 425 U.S. at 762) (cleaned up); accord United
States v. United Foods, Inc., 533 U.S. 405, 409 (2001).
Courts also consider the three so-called “Bolger factors”:
(1) whether the speech is an advertisement, (2) whether the
speech refers to a particular product, and (3) whether the
speaker has an economic motivation. Ariix, LLC v.
NutriSearch Corp., 985 F.3d 1107, 1116 (9th Cir. 2021)
(citing Hunt v. City of Los Angeles, 638 F.3d 703, 715 (9th
Cir. 2011)). 15

15
The partial dissent suggests that these tests limit commercial speech to
content “akin to something people would otherwise disclose in proposing
commercial transactions.” Partial Dissent at 86. However, “in the
commercial context . . . [the government] often requires affirmative
disclosures that the speaker might not make voluntarily.” Rubin v. Coors
Brewing Co., 514 U.S. 476, 492 & n.1 (1995) (Stevens, J., concurring)
(categorizing “Surgeon General’s Warning’ labels on cigarettes” as
commercial speech). Indeed, it is entirely common for courts to conclude
that regulatory disclosures related to a specific product are commercial
speech, even where the specific information disclosed is directly
contrary to the speaker’s economic interest and therefore would not be
disclosed absent regulation. See, e.g., Am. Beverage Ass’n, 916 F.3d at
755-56 (health warning on advertisements for sugar sweetened
beverages); Nat’l Ass’n of Wheat Growers, 85 F.4th at 1275 (carcinogen
warnings for business whose products expose consumers to glyphosate);
CTIA, 928 F.3d at 841-42 (warnings about radio-frequency radiation
exposure guidelines for cell phone users); Am. Meat Inst. v. U.S. Dep’t
of Agri., 760 F.3d 18, 21 (D.C. Cir. 2014) (en banc) (country of origin
labeling on the packaging of meat products). And in any case, the partial
dissent’s assumption that the “pricing strategies” that manufacturers
must disclose under HB 4005—i.e., the “factors that contributed to the
price increase[s]” of pharmaceutical drugs, Or. Rev. Stat.
§ 646A.689(3)(c)— are “not akin to anything people would otherwise
disclose in proposing commercial transactions” is unfounded. Partial
Dissent at 86. Companies routinely provide explanations for price
38 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Courts treat these legal tests “as just a starting point,

however, and instead try to give effect to a ‘common-sense
distinction’ between commercial speech and other varieties
of speech.” X Corp., 116 F.4th at 900 (quoting Ariix, 985
F.3d at 1115); see also Ariix, 985 F.3d at 1116 (explaining
that the Bolger factors “are important guideposts, but they
are not dispositive”). 16 The “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.” X Corp., 116 F.4th at 900 (quoting First Resort,
Inc. v. Herrera, 860 F.3d 1263, 1272 (9th Cir. 2017)).
Our Circuit has characterized speech as commercial
“even if not a clear fit” with these legal tests where the
speech nonetheless “communicates the terms of an actual or
potential [commercial] transaction.” Id. at 901. We have, for
example, applied the commercial speech doctrine to
regulations requiring landlords to provide contact
information for tenants’ rights organizations before
initiating buyout negotiations for condominium conversions,
see S.F. Apartment Ass’n v. City and County of San

increases in proposing commercial transactions. See, e.g., Daniella

Genovese, Egg Surcharge Hits Diners’ Wallets, Fox Bus. (Feb. 7, 2025
13:32 ET), https://www.foxbusiness.com/lifestyle/egg-surcharge-hits-
diners-wallets-experts-say-consumers-should-fear-menu-price-hikes-
more (featuring a photo of a menu with a disclaimer explaining a
temporary surcharge “due to the nationwide rise in cost of eggs”); Utpal
M. Dholakia, If You’re Going to Raise Prices, Tell Customers Why,
Harv. Bus. Rev. (June 29, 2021) (describing a United Airlines message
to customers explaining its decision to raise the price of its United Club
membership).
16
Indeed, in Bolger itself the Supreme Court emphasized that it did not
“mean to suggest that each of the characteristics present in this case must
necessarily be present in order for speech to be commercial.” 463 U.S.
at 67 n.14.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 39

Francisco, 881 F.3d 1169, 1174, 1176-77 (9th Cir. 2018);

and to regulations requiring retailers to provide warnings
about federal radio-frequency radiation exposure guidelines
for cell phone users, see CTIA, 928 F.3d at 841-42.
Similarly, in Environmental Defense Center, Inc. v. EPA, we
applied the Supreme Court’s reasoning in Zauderer in
rejecting a compelled speech challenge to an EPA regulation
that required municipal storm sewer providers to educate the
public about the dangers of improper waste disposal. 344
F.3d at 849-51. We explicitly concluded that the “policy
considerations” underlying the commercial speech doctrine
applied in that context because the regulation required
“market-participant” storm sewer providers to “inform the
public how to dispose safely of toxins.” Id. at 851 n.27.
Although the compelled disclosures in these cases did
not “propose a commercial transaction,” we applied the
commercial speech doctrine because they nonetheless
provided parties to “actual or potential” commercial
transactions with information about those transactions. 17 X
Corp., 116 F.4th at 901; see also NetChoice, LLC v. Paxton,
49 F.4th 439, 446, 485-86 (5th Cir. 2022), rev’d on other
grounds sub nom. Moody v. NetChoice, LLC, 603 U.S. 707
(2024) (applying the commercial speech doctrine to evaluate
a state law requiring social media platforms to publish
information related to their content-moderation policies);
NetChoice, LLC v. Att’y Gen., Fla., 34 F.4th 1196, 1206-07,
1223 (11th Cir. 2022), rev’d on other grounds sub nom.
Moody, 603 U.S. 707 (same).

17
Notably, none of these decisions applied the factors identified in
Bolger. 463 U.S. at 66-68; see generally S.F. Apartment Ass’n, 881 F.3d
at 1176-80; CTIA, 928 F.3d at 841-49; Env’t Def. Ctr., 344 F.3d at 849-
51.
40 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

The reports required by HB 4005 likewise communicate

the terms of potential commercial transactions. Specifically,
the reports communicate product-specific economic
information about prescription drugs that are available for
purchase on the market. See Or. Rev. Stat. § 646A.689(2),
(3). Much of the information required by HB 4005’s
reporting requirement is basic marketing information that
manufacturers already disclose to the federal government
and/or the public. See, e.g., id. § 646A.689(3)(a), (i) (current
and past list prices); id. § 646A.689(3)(b) (time drug has
been on the market); id. § 646A.689(3)(d) (generic
alternatives); id. § 646A.689(3)(g) (sales revenue); id.
§ 646A.689(3)(j) (prices in other countries); see also U.S.
Food & Drug Admin., Orange Book Preface (Mar. 27,
2025), https://www.fda.gov/drugs/development-approval-
process-drugs/orange-book-preface (providing background
on the FDA’s “Orange Book” report, which publicizes
therapeutic equivalence evaluations of generic drugs to
“serve as public information . . . in the area of drug product
selection”); Or. Rev. Stat. § 689.515 (permitting generic
substitution based on therapeutic equivalence evaluations
made by the FDA). Indeed, the partial dissent agrees that
much of this “general marketing information” “compels
factual and uncontroversial information and probably does
not violate the First Amendment.” Partial Dissent at 80-81.
The remaining information required by HB 4005’s reporting
requirement is economic information that is no less tethered
to commercial transactions. See Or. Rev. Stat.
§ 646A.689(3)(e), (f) (costs incurred by manufacturers); id.
§ 646A.689(3)(c), (k) (factors contributing to price
increases); id. § 646A.689(3)(h) (profit information).
HB 4005’s reporting requirement thus improves the
“free flow of commercial information” for all drug
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 41

purchasers—both public and private. Va. State Bd. of

Pharmacy, 425 U.S. at 765. Not only does HB 4005’s
reporting requirement provide drug pricing information to
the State (itself a major drug purchaser in Oregon), but it also
ensures private consumers have access to this information
via public reports prepared by DCBS. See Or. Rev. Stat.
§ 646A.689(9). Indeed, the explicit purpose of HB 4005 is
to provide market participants with information to facilitate
future commercial transactions between drug manufacturers
and market participants. See HB 4005, ch. 7 (“[T]he
Legislative Assembly intends by this [Act] to permit
purchasers, both public and private, as well as pharmacy
benefit managers, to negotiate discounts and rebates for
prescription drugs.”).
Treating product-specific government reporting
requirements as commercial speech makes sense in this case.
Part of the reason that the First Amendment protects
commercial speech is that such speech furthers the
“consumer’s interest in the free flow of commercial
information.” Va. State Bd. of Pharmacy, 425 U.S. at 764;
see also Milavetz, Gallop & Milavetz, P.A. v. United States,
559 U.S. 229, 249-50 (2010) (“First Amendment protection
for commercial speech is justified in large part by the
information’s value to consumers . . . .”); Cent. Hudson, 447
U.S. at 561-62 (“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.”). Notably, outside the
context of commercial transactions, the information required
by HB 4005 has no independent expressive meaning. Cf.
Zauderer, 471 U.S. at 651 (noting that the “interests at stake”
in regulating commercial transactions “are not of the same
order” as those where a speech regulation “prescribe[s] what
42 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

shall be orthodox in politics, nationalism, religion, or other

matters of opinion” (quoting Barnette, 319 U.S. at 642)).
Where, as here, a government reporting requirement is
closely tethered to the sale of a product and “assists
consumers and furthers the societal interest in the fullest
possible dissemination of information,” it is properly
categorized as commercial speech. Cent. Hudson, 447 U.S.
at 561-62. 18
The partial dissent argues that certain subsections of HB
4005’s reporting requirement—namely, those that it views
as related to “pricing strategy” 19— require manufacturers to
disclose information that “go[es] further” than
communicating the terms of a potential transaction because
the reports require manufacturers to express “opinions about
and reasons for” their drug prices. Partial Dissent at 81-82,

18
Contrary to the partial dissent’s assertions, we have not “articulate[d]
a new legal test” for government reporting requirements. Partial Dissent
at 95. Nor have we “discard[ed]” the Bolger factors. Partial Dissent at
79, 85. Rather, we have simply recognized that some aspects of the
commercial speech doctrine are more instructive in this context than
others. Our fact-cabined analysis reflects the reality that the “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.” X Corp., 116 F.4th at 900 (quoting First Resort, 860 F.3d at
1272). Additionally, although the partial dissent characterizes our
analysis as lacking a “limiting principle,” Partial Dissent at 113, we
highlight the close tether between the speech compelled by HB 4005 and
commercial pharmaceutical transactions. Speech, such as this, that is
incidental to a commercial transaction is not far removed from the “core”
of commercial speech, i.e., speech that “propose[s] a commercial
transaction.” United Foods, 533 U.S. at 409.
19
The partial dissent agrees that other basic marketing information
required by HB 4005 is “factual and uncontroversial commercial
information.” Partial Dissent at 80-81.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 43

91-95 (quoting X Corp., 116 F.4th at 901). 20 We disagree.

The economic-focused reports at issue here are a far cry from
the “politically fraught” definitions at issue in X Corp. 116
F.4th at 902. The law under review in X Corp., AB 587,
required social media companies to identify what they
believed to be “Hate speech or racism,” “Extremism or
radicalization,” “Disinformation or misinformation” and
“Foreign political interference,” which is an intensely
political exercise. Id. at 896. HB 4005’s reporting
requirement simply does not compel manufacturers to
express any analogous normative view about their drug
pricing, 21 nor does it require manufacturers to define their
drug pricing in value-laden, state-prescribed language. 22

20
Indeed, the partial dissent seems to imagine that HB 4005 requires
manufacturers to report a detailed, play-by-play recount of internal
discussions about pricing. Partial Dissent at 91-94, 98-100. However, the
State represented at oral argument that DCBS would consider the
following straightforward list of factors to be a satisfactory response to
Or. Rev. Stat. § 646A.689(3)(c): “supply cost increases, research costs,
and investor return.”
21
Unlike the information required by HB 4005, the speech compelled by
AB 587 had independent expressive meaning outside the context of any
commercial transaction. What constitutes “hate speech,” for example, is
a matter of public debate and concern outside the context of a social
media company’s terms of service (or, indeed, any commercial
transaction). By contrast, it would make little sense to divorce the speech
compelled by HB 4005, such as a pharmaceutical manufacturer’s
distribution costs, Or. Rev. Stat. § 646A.689(3)(f)(3), from specific
product sales.
22
The partial dissent asserts that reports required under HB 4005 “recast
drug manufactures’ pricing strategies into language prescribed by
Oregon” because requiring manufacturers to report on various costs
“impl[ies] that any increase in drug prices can be fairly justified only by
increases in costs.” Partial Dissent at 91. But under this view, laws
44 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Rather, HB 4005 requires manufacturers to report product-

specific, economic information about their products such as
current and past list prices, generic alternatives, and the
length of time the drugs have been on the market. Compare
Or. Rev. Stat. § 646A.689(3), with X Corp., 116 F.4th at 894,
and NetChoice, 113 F.4th at 1109, 1119-20.
PhRMA similarly argues that HB 4005’s reporting
requirement calls for “opinion[s] . . . about the reasons for
high prescription prices.” But no opinion is required for a
manufacturer to disclose, as a matter of historical fact, the
factors the company considered in setting its drug price.
Contrary to PhRMA’s arguments, HB 4005’s reporting
requirement does not “reinforce the State’s message that
manufacturers are the ones responsible for drug prices.”
Indeed, manufacturers are free to explicitly reject any such
message and explain (to DCBS, market participants, and the
public at large) the full range of factors that drive their
pricing decisions. If, for example, a manufacturer raises the

requiring nutrition labels on food products would also be subjected to

strict scrutiny simply because they require reporting based on categories
prescribed by the state. Contra Am. Beverage Ass’n, 916 F.3d at 756.
Moreover, even setting aside that the “factors that contributed to [a] price
increase” are reported separately from these costs here, see Or. Rev. Stat.
§ 646A.689(3)(c), (e), (f), if consumers were to find an “implicit”
message in the State’s decision to request cost information from
manufacturers, any such message would be attributable to the State. Just
as consumers understand that the categories of information disclosed on
nutrition labels (e.g., added sugars, trans fats, protein) are selected by the
government, it is clear here that the categories of information disclosed
under HB 4005 are selected by the State. Of course, the “State can
express [its] view[s] through its own speech,” Sorrell v. IMS Health Inc.,
564 U.S. 552, 578 (2011), and nothing about HB 4005 prevents a
manufacturer from defining and disseminating its own message about
drug pricing.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 45

price of a drug to mitigate rising manufacturing costs, fund

future research and development, offset a tax hike, or
comply with new regulatory requirements, it remains
entirely free to explain the impact of these economic
pressures on the drug’s price. See Or. Rev. Stat.
§ 646A.689(3)(k) (requesting “[a]ny other information that
the manufacturer deems relevant to the price increase”); Or.
Admin. R. 836-200-0530(2)(h) (requiring manufacturers
include “a narrative description and explanation of all major
financial and nonfinancial factors” contributing to a price
increase).
And although drug pricing decisions may implicate
controversial public policy issues, this fact is insufficient to
transform the required reports into noncommercial speech.
See Bolger, 469 U.S. at 68 (“We have made clear that
advertising which ‘links a product to a current public debate’
is not thereby entitled to the constitutional protection
afforded noncommercial speech.” (quoting Cent. Hudson,
447 U.S. at 563 n.5)); Bd. of Trs. v. Fox, 492 U.S. 469, 475
(1989) (“[C]ommunications can constitute commercial
speech notwithstanding the fact that they contain discussions
of important public issues.” (internal quotation marks and
citation omitted)); Valle Del Sol Inc. v. Whiting, 709 F.3d
808, 819 (9th Cir. 2013) (concluding that restrictions on
solicitation speech of day laborers implicated commercial
speech because, although “[t]he act of soliciting work as a
day laborer may communicate a political message, . . . the
primary purpose of the communication is to advertise a
laborer’s availability for work and to negotiate the terms of
such work”). In this way, HB 4005’s reporting requirement
is similar to the hypothetical government reporting
requirement that the Court tacitly approved of in Riley.
There, the Court suggested that North Carolina could require
46 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

professional fundraisers to submit financial reports that

disclosed the percentage of solicitation funds actually turned
over to charities within the last 12 months—and then
disseminate those financial reports to the public. Riley, 487
U.S. at 800. As here, exposing how much money
professional fundraisers take from charitable donations
could be considered “controversial” to the extent that it
reflects fundraisers’ profit-motivated decisionmaking, and
publication of this information arguably went against the
fundraisers’ economic interests. 23
That HB 4005 calls for the reporting of some information
that may reflect internal decisionmaking also does not
dissuade us from categorizing the reporting requirement as
commercial speech. 24 Many routine financial regulations

23
The partial dissent attempts to reconcile its reasoning with Riley by
reframing the required disclosure in Riley as communicating the “price
of [a professional fundraiser’s] services.” Partial Dissent at 111-12. But
there is no difference in kind between requiring a professional fundraiser
to publicly disclose “the average percentage of gross receipts actually
turned over to charities by the fundraiser for all charitable solicitations
conducted in North Carolina within the previous 12 months,” Riley, 487
U.S. at 786, and requiring a pharmaceutical manufacturer to disclose the
factors that contributed to a price increase. Both regulations essentially
require the covered entity to (indirectly) explain to customers what it is
they are paying for, even if the covered entity would prefer not to provide
such clarity.
24
PhRMA’s focus on the disclosure of “internal decisionmaking”
attempts to inject concerns about confidentiality into the First
Amendment analysis. But PhRMA cites no authority for the proposition
that confidentiality has a role to play in our First Amendment analysis.
In any event, HB 4005 does not broadly compel the public disclosure of
confidential information. A manufacturer may designate the information
as a trade secret in its report to DCBS, and the State may only disclose
protected trade secret information under the public-interest exception.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 47

require the reporting of similar internal economic analysis.

See, e.g., 17 C.F.R. § 229.402(b) (requiring corporations to
describe the “objectives of the [corporation’s executive]
compensation programs” including “[w]hat the
compensation program is designed to reward” and
“[w]hether and . . . how the [corporation] has considered the
results of the most recent shareholder advisory vote on
executive compensation” in publicly disclosed SEC filings);
Rowe, 429 F.3d at 299, 307, 310, 316 (controlling
concurrence) (analyzing a regulation requiring pharmacy
benefit managers to identify and disclose “conflicts of
interest” and “financial and utilization information” to health
benefit providers as commercial speech). The mere fact that
a reporting requirement compels regulated entities to
disclose information reflecting the company’s internal
decisionmaking does not strip that speech of its
fundamentally commercial character. 25
Having concluded that HB 4005’s reporting requirement
is properly categorized as commercial speech, our next step
would normally be to determine whether the statute is
subject to intermediate scrutiny under Central Hudson, or
qualifies for a lower level of scrutiny under Zauderer. 26 See

Or. Rev. Stat. § 646A.689(10)(a). The State has not done so since the
law was enacted in 2018.
25
Although the degree to which a compelled disclosure reflects a
company’s internal strategies might bear on whether speech is “purely
factual” for purposes of determining if Zauderer review is appropriate,
471 U.S. at 651, it does not bear on whether a reporting requirement
regulates commercial speech.
26
For HB 4005, application of the commercial speech doctrine to
determine the appropriate level of scrutiny does not produce a doctrinally
48 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Nat’l Ass’n of Wheat Growers, 85 F.4th at 1275. We need

not decide this issue, however, because we conclude that HB
4005’s reporting requirement survives even the more
stringent standard, intermediate scrutiny under Central
Hudson. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(“As a general rule courts . . . are not required to make
findings on issues the decision of which is unnecessary to
the results they reach.”).
ii. Application of Intermediate Scrutiny
For HB 4005’s reporting requirement to survive
intermediate scrutiny under Central Hudson, the State must
establish that the law “‘directly advance[s]’ a ‘substantial’
governmental interest, and [that] the means chosen [are] not
. . . ‘more extensive than necessary.’” Nat’l Ass’n of Wheat

indefensible result. However, there are other longstanding government

reporting requirements that would be subject to strict scrutiny under the
presumptively strict approach—even if we treated the Bolger factors as
a “just a starting point” (as Bolger instructs) and focused on whether the
report “communicates the terms of an actual or potential [commercial]
transaction.” X Corp., 116 F.4th at 900-01. Consider, for example, IRS
Form 990, which requires noncommercial entities, including non-profit
charitable organizations, to disclose information about their missions and
“program service accomplishments,” as well as detailed financial
information (such as their revenues, sources of revenues, spending, and
most highly compensated employees). See Form 990, Internal Rev.
Serv., https://www.irs.gov/pub/irs-pdf/f990.pdf; see also Form 990,
Library of Cong. Rsch. Guide, https://guides.loc.gov/nonprofit-
sector/form-990. Further, the 990 is a public document that can be
accessed in a variety of ways, including on government websites. See,
e.g., Tax Exempt Organization Search Tool, Internal Rev. Serv.,
https://www.irs.gov/charities-non-profits/search-for-tax-exempt-
organizations. Under the presumptively strict approach, this
longstanding reporting requirement would likely be subject to strict
scrutiny simply because it “compels” noncommercial entities to disclose
noncommercial information.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 49

Growers, 85 F.4th at 1275 (quoting Cent. Hudson, 447 U.S.

at 564-66).
First, we conclude that the State’s asserted interests in
HB 4005’s reporting requirement are “substantial.” Cent.
Hudson, 447 U.S. at 566. When the Oregon Legislative
Assembly passed HB 4005, it highlighted the State’s
“substantial public interest in the price and cost of
prescription drugs,” and explained that HB 4005 is
specifically designed to: (1) “provide notice and disclosure
of information relating to the cost and pricing of prescription
drugs in order to provide accountability for prescription drug
pricing,” and (2) “permit purchasers, both public and
private, as well as pharmacy benefit managers, to negotiate
discounts and rebates for prescription drugs consistent with
existing state and federal law.” HB 4005, ch. 7.
Although “consumer curiosity” alone is generally
insufficient as a substantial state interest, see Nat’l Elec.
Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 115 n.6 (2d Cir. 2001),
the State’s asserted interests here are not limited to
transparency for its own sake. Rather, the State’s
transparency goals are intended to ensure the “preservation
of a fair bargaining process” in negotiations related to drug
purchasing. 44 Liquormart, Inc. v. Rhode Island, 517 U.S.
484, 501 (1996); see also id. at 502 (“It is the State’s interest
in protecting consumers from ‘commercial harms’ that
provides ‘the typical reason why commercial speech can be
subject to greater governmental regulation than
noncommercial speech.’” (quoting Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 426 (1993))); Bolger, 463 U.S.
at 69 (highlighting the “substantial individual and societal
interests in the free flow of commercial information”
(internal quotation marks and citation omitted)).
50 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

The pharmaceutical drug market is characterized by

significant informational asymmetries. See Robin Feldman
& Charles Tait Graves, Naked Price and Pharmaceutical
Trade Secret Overreach, 22 Yale J.L. & Tech. 61, 70-77
(2020) (explaining that in the pharmaceutical market,
“perverse incentives, along with externalities and
information asymmetries, operate to blunt the natural
competitive forces society might otherwise enjoy”). The
State has a substantial interest in reducing those
asymmetries, facilitating informed commercial transactions,
and improving the efficiency of the pharmaceutical market.
See S.F. Apartment Ass’n, 881 F.3d at 1177 (recognizing San
Francisco’s asserted interests in the “fairness of buyout
negotiations” between landlords and tenants and the
“reduct[ion] [in] the likelihood that tenants will accept
‘unfair’ buyout agreements” as substantial); cf. Edenfield v.
Fane, 507 U.S. 761, 769 (1993) (“For purposes of [the
Central Hudson] test, there is no question that [the State’s]
interest in ensuring the accuracy of commercial information
in the marketplace is substantial.”). This is particularly true
given the State’s role as a direct purchaser of pharmaceutical
drugs and a major payer in the health care system, and given
the magnitude of the State’s expenditures on prescription
drugs. See Brief for the State of Cal., et al. as Amici Curiae,
at 15 (noting the Oregon Health Authority spent more than
$1.3 billion in 2022 on prescription drugs for those enrolled
in Oregon’s Medicaid and children’s health program).
Second, we conclude that HB 4005’s reporting
requirement “directly advances” these substantial interests.
Cent. Hudson, 447 U.S. at 566. To meet the “direct
advancement” requirement, the State must demonstrate that
“the harms it recites are real and that its restriction will in
fact alleviate them to a material degree.” Edenfield, 507 U.S.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 51

at 771. However, even “in a case applying strict scrutiny,”

the State may “justify speech restrictions by reference to
studies and anecdotes pertaining to different locales
altogether”—or even “based solely on history, consensus,
and simple common sense.” Lorillard Tobacco Co. v. Reilly,
533 U.S. 525, 555 (2001) (internal quotation marks and
citation omitted).
The district court concluded that the State had not
established how HB 4005 would directly advance its
asserted interests because the State had failed to point to data
showing that HB 4005 would “actually reduce the cost of
prescription drugs in Oregon.” Summary Judgment Opinion,
724 F. Supp. 3d at 1202. It is true that, in its summary
judgment briefing, the State failed to cite any empirical
evidence linking drug pricing transparency laws to lower
drug prices. But the State has never claimed that HB 4005’s
reporting requirement itself will directly lower drug prices.27
Rather, the State’s stated goal in enacting HB 4005 was to
reduce information asymmetries in the pharmaceutical
market and provide drug purchasers with leverage in
negotiations with manufacturers. It is common sense that
collecting and publishing information about drug pricing,

27
Although HB 4005’s stated legislative goal is not to lower drug prices,
amici curiae have provided evidence showing a correlation between drug
pricing transparency laws and reductions in drug price increases. For
example, the Oregon Coalition for Affordable Prescriptions cites data
from Vermont showing that in the four years after the State passed a drug
price transparency law in 2016, there was a 79% decline in the number
of drugs reaching the per-year price increase threshold that triggered the
law’s reporting requirements. Brief for the Or. Coalition for Affordable
Prescriptions as Amici Curiae, at 12 (citing Johanna Butler, Drug Price
Transparency Laws Position States to Impact Drug Prices, Nat’l Acad.
for State Health Pol’y (Jan. 10, 2022), https://nashp.org/drug-price-
transparency-laws-position-states-to-impact-drug-prices).
52 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

costs, and pharmaceutical market conditions “directly

advances” this goal. Cf. Spirit Airlines, Inc. v. U.S. Dep’t of
Transp., 687 F.3d 403, 415 (D.C. Cir. 2012) (“The
government interest—ensuring the accuracy of commercial
information in the marketplace—is clearly and directly
advanced by a regulation requiring that the total, final price
[of commercial airfare] be the most prominent.”); Medicare
and Medicaid Programs; Regulation To Require Drug
Pricing Transparency, 84 Fed. Reg. 20732, 20744 (May 10,
2019) (“Price transparency helps improve market
efficiencies by helping consumers make informed choices
and the disclosure of price information clearly and directly
advances this interest.”).
Third, we conclude that the State’s chosen means of
speech regulation here are not “more extensive than
necessary to further the State’s interest[s].” Cent. Hudson,
447 U.S. at 569-70. In its briefing before this court, PhRMA
does not argue that a more limited disclosure would suffice
or identify any specific subsection of HB 4005’s reporting
requirement that it asserts is unnecessary to advance the
State’s interests. Rather PhRMA’s sole argument is that HB
4005’s reporting requirement is impermissibly
underinclusive because it applies only to pharmaceutical
manufacturers, and does not require other supply chain
participants to provide any drug pricing information.
However, “[a]s a general matter, governments are entitled to
attack problems piecemeal, save where their policies
implicate rights so fundamental that strict scrutiny must be
applied.” Zauderer, 471 U.S. at 651 n.14; see also
Destination Ventures, Ltd. v. FCC, 46 F.3d 54, 56 (9th Cir.
1995) (“The First Amendment does not require Congress to
forgo addressing the problem at all unless it completely
eliminates [the problem].”). Moreover, PhRMA’s
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 53

“argument holds even less water here because the narrow

tailoring requirement guards against over-regulation rather
than under-regulation.” Metro Lights, LLC v. City of Los
Angeles, 551 F.3d 898, 911 (9th Cir. 2009).
Additionally, courts have repeatedly characterized the
mechanism of disclosure here—wherein the State rather than
a regulated entity makes disclosed information available to
the public—as narrowly tailored. For example, in Riley, the
Court concluded that the North Carolina statute at issue,
which required fundraisers to directly disclose the
percentage of funds they had turned over to charities, was
not narrowly tailored because there were “more benign and
narrowly tailored options.” Id. at 800. Again, the Court
explained that “as a general rule, the State may itself publish
the detailed financial disclosure forms it requires
professional fundraisers to file. This procedure would
communicate the desired information to the public without
burdening a speaker with unwanted speech during the course
of a solicitation.” Id.; see also Buckley v. Valeo, 424 U.S. 1,
68 (1976) (explaining that, in the context of campaign
finance, “disclosure requirements certainly in most
applications appear to be the least restrictive means of
curbing the evils of campaign ignorance”); Nat’l Ass’n of
Wheat Growers, 85 F.4th at 1283 (explaining that a more
narrowly tailored alternative for a product warning would be
for the state to “post information about glyphosate on its own
website”); Nat’l Fed’n of the Blind of Tex., Inc. v. Abbott,
647 F.3d 202, 214 (5th Cir. 2011) (“[T]here is nothing
stopping Texas from requiring [a regulated entity] to file
financial disclosure forms, which Texas could publish
without burdening the [entity] with unwanted speech.”).
Under the State’s chosen means of regulation here,
manufacturers remain free to disseminate their own
54 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

messages directly to consumers and to the public at large.

See Va. State Bd. of Pharmacy, 425 U.S. at 770 (“[P]eople
will perceive their own best interests if only they are well
enough informed, and that the best means to that end is to
open the channels of communication rather than to close
them.”).
Ultimately, Central Hudson review requires only “a
reasonable fit between the means and ends of the regulatory
scheme.” Lorillard, 533 U.S. at 561. We conclude that HB
4005’s reporting requirement is appropriately tailored and
survives intermediate scrutiny.
iii. Severability
In this appeal, the State again argues that, even if
PhRMA were to prevail, it is entitled only to a judgment
severing and invalidating Or. Rev. Stat. § 646A.689(3)(c),
which requires manufacturers to report the “factors that
contributed to the price increase.” Because we conclude that
all subsections of HB 4005’s reporting requirement are
constitutional under the First Amendment, we do not reach
this argument. We note, however, that when striking down a
state statute as unconstitutional, “‘the normal rule’ is that
‘partial, rather than facial, invalidation is the required
course.’” Project Veritas v. Schmidt, 125 F.4th 929, 960 n.29
(9th Cir. 2025) (en banc) (quoting Brockett v. Spokane
Arcades, Inc., 472 U.S. 491, 504 (1985)).
Here, PhRMA only addressed § 646A.689(3)(c) in its
summary judgment briefing. As a result, the State’s
opposition to PhRMA’s summary judgment motion only
addressed § 646A.689(3)(c). Similarly, the district court
only analyzed § 646A.689(3)(c) in its preliminary oral
ruling. Nevertheless, PhRMA subsequently proposed a
declaratory judgment invalidating the entirety of
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 55

§ 646A.689(3). Although the State then raised severability

in its brief objecting to PhRMA’s proposed declaratory
judgment, the district court invalidated the entire reporting
requirement because it considered the State’s severability
argument waived. Summary Judgment Opinion, 724 F.
Supp. 3d at 1197 n.6. At no point did the district court ever
provide substantive analysis on any subsection except
§ 646A.689(3)(c). Moreover, because PhRMA’s motion for
summary judgment only addressed § 646A.689(3)(c), the
State had no reason to raise severability in its opposition to
PhRMA’s summary judgment motion. Thus, the State could
not have waived the severability issue in its opposition to
PhRMA’s motion for summary judgment.
But even if the State had waived the argument, our en
banc court recently expressed “doubt” that declining to
consider severability based on waiver “would be the proper
course,” explaining that “the Supreme Court has previously
faulted our court for failing to consider severability before
invalidating an entire state statute.” Project Veritas, 125
F.4th at 960 n.29 (citing Brockett, 472 U.S. at 507; Ayotte v.
Planned Parenthood of N. New England, 546 U.S. 320, 328-
31 (2006); New York v. United States, 505 U.S. 144, 186
(1992)). So even if some subsections of Or. Rev. Stat.
§ 646A.689(3) did not survive the applicable level of
scrutiny, the appropriate next step would be to sever them.
* * *
In sum, assuming arguendo that HB 4005’s reporting
requirement is subject to intermediate scrutiny, we conclude
that it is a permissible regulation of commercial speech. We
thus hold that the State, not PhRMA, is entitled to summary
judgment on PhRMA’s First Amendment claim.
56 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

B. Fifth Amendment Takings Claim

We next turn to whether HB 4005’s public-interest
exception constitutes an unconstitutional taking of private
property under the Fifth Amendment. For the reasons below,
we hold that PhRMA is not entitled to summary judgment in
this facial challenge.
“The Takings Clause of the Fifth Amendment states that
‘private property [shall not] be taken for public use, without
just compensation.’” Knick v. Twp. of Scott, Pennsylvania,
588 U.S. 180, 184 (2019) (alteration in original) (quoting
U.S. Const. amend. V). 28 Here, PhRMA argues that the
public-interest exception is a facial violation of the Takings
Clause because, each and every time the exception is
invoked, the State takes manufacturers’ property—
specifically, their trade secrets—without providing just
compensation. The State advances two primary arguments:
(1) that PhRMA’s claim is nonjusticiable, and (2) that
PhRMA cannot prevail on the merits of its facial claim.
i. Justiciability
Both parties acknowledge that, to date, DCBS has never
invoked the public-interest exception and never publicly
disclosed any of the thousands of purported trade secrets
filed with DCBS under HB 4005. The State argues that,
because DCBS has yet to invoke the exception, PhRMA’s
claim is nonjusticiable. The pre-enforcement posture of this
facial challenge raises two issues: Article III standing and
ripeness. We discuss each in turn.

28
The Takings Clause applies against the States through the Fourteenth
Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U.S.
155, 160 (1980).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 57

a. Article III Standing

Here, PhRMA asserts associational standing on behalf of
its member pharmaceutical and biotechnology
manufacturers. “To satisfy associational standing
requirements, an organization must demonstrate that (1) at
least one of its members has suffered an injury in fact that is
(a) concrete and particularized and (b) actual or imminent,
rather than conjectural or hypothetical; (2) the injury is fairly
traceable to the challenged action; and (3) it is likely, not
merely speculative, that the injury will be redressed by a
favorable decision.” California Rest. Ass’n v. City of
Berkeley, 89 F.4th 1094, 1099 (9th Cir. 2024). 29 The State
argues that PhRMA cannot establish this first prong, i.e., that
any of its members has suffered an injury in fact. We
disagree.
The State argues that PhRMA cannot establish an injury
in fact in its facial challenge because the law’s enactment
had no immediate effect on private property. This argument
is unavailing. To establish injury in fact, “[a]n allegation of
future injury may suffice if the threatened injury is ‘certainly
impending,’ or there is a ‘substantial risk’ that the harm will
occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158 (2014) (quoting Clapper v. Amnesty Int’l USA, 568 U.S.
398, 411, 414 n.5 (2013)); see also In re Zappos.com, Inc.,
888 F.3d 1020, 1026 (9th Cir. 2018). Standing alone, the fact

29
Associational standing also requires that “the interests [the
organization] seeks to protect are germane to the organization’s purpose”
and that “neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.” Associated Gen.
Contractors of Am., San Diego Chapter, Inc. v. Cal. Dep’t of Transp.,
713 F.3d 1187, 1194 (9th Cir. 2013). The State does not dispute that
PhRMA has established these elements of associational standing, and we
agree.
58 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

that the public-interest exception has never been invoked

does not persuade us that the alleged harm here is, as the
State argues, “purely speculative.” Indeed, in a hearing
before the district court, when the State was asked whether
DCBS’s decisions not to invoke the public-interest
exception have been “influenced by the pendency of this
litigation,” counsel stated that this was “possible.” Where, as
here, “the State has not disavowed any intention of invoking
the [challenged] provision,” manufacturers face a “credible
threat” of public disclosure of their trade secrets. Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298, 302
(1979). Importantly, PhRMA’s theory of standing does not
rest on a “speculative multi-link chain of inferences” about
possible future events, In re Zappos.com, 888 F.3d at 1026,
nor does it depend on the independent actions of third
parties, see Washington v. U.S. Food & Drug Admin., 108
F.4th 1163, 1175 (9th Cir. 2024). Rather, PhRMA’s theory
rests on a single determination by DCBS that disclosure of a
claimed trade secret is in the “public interest.” See Or. Rev.
Stat. § 646A.689(10)(a). Once that determination is made,
disclosure under HB 4005 is mandatory. See id.
§ 646A.689(9) (explaining that unless the public-interest
exception applies, DCBS “shall post to its website”
information disclosed by manufacturers (emphasis added)).
We thus conclude that the risk of future injury is sufficiently
nonspeculative to establish injury in fact.
The remaining Article III standing requirements are also
satisfied. The risk of future harm faced by PhRMA’s
members is self evidently “fairly traceable” to the conduct
being challenged—the invocation of the public-interest
exception.
Redressability is also satisfied here. In considering
Article III redressability, the focus is primarily on “the
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 59

connection between the alleged injury and requested judicial

relief.” Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1146
(9th Cir. 2013). PhRMA’s requested relief here is a
declaratory judgment recognizing that any invocation of the
public-interest exception without simultaneously providing
just compensation would violate the Fifth Amendment. A
declaratory judgment in PhRMA’s favor would redress
manufacturers’ injuries by making a “definitive
determination of the legal rights of the parties.” Aetna Life
Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937); see also
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126-27
(2007); Seattle Pac. Univ. v. Ferguson, 104 F.4th 50, 62 (9th
Cir. 2024). In other words, even though a declaratory
judgment itself would not provide immediate relief to
PhRMA’s members, the preclusive effect of the judgment
would provide manufacturers relief by binding the State in
any subsequent lawsuits seeking compensation for
unconstitutional takings under the challenged provision. Cf.
Larson v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A]
plaintiff satisfies the redressability requirement when he
shows that a favorable decision will relieve a discrete injury
to himself. He need not show that a favorable decision will
relieve his every injury.”).
To be sure, in this context there is significant overlap
between constitutional standing and ripeness issues. But, for
Article III standing purposes, it suffices to conclude that the
preclusive effect of a declaratory judgment in PhRMA’s
favor would redress manufacturers’ alleged injuries.
b. Ripeness
We also conclude that PhRMA’s takings claim is ripe for
review. “[T]he ripeness inquiry contains both a
constitutional and a prudential component.” Thomas v.
60 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Anchorage Equal Rts. Comm’n, 220 F.3d 1134, 1138 (9th

Cir. 2000) (quoting Portman v. County of Santa Clara, 995
F.2d 898, 902 (9th Cir. 1993)). The constitutional
component of the ripeness inquiry focuses on whether the
issues presented are “definite and concrete, not hypothetical
or abstract.” Id. (quoting Ry. Mail Ass’n v. Corsi, 326 U.S.
88, 93 (1945)). Here, this inquiry “coincides squarely with
standing’s injury in fact prong,” id., and for the reasons
discussed above, see supra Section III.B.i.a, we conclude
that PhRMA’s claim meets constitutional ripeness
requirements.
Turning to prudential ripeness, in the context of a takings
claim, the key question is whether the plaintiff has “received
a ‘final decision regarding the application of the [challenged]
regulations to the property at issue’ from ‘the government
entity charged with implementing the regulations.’” Suitum
v. Tahoe Reg’l Plan. Agency, 520 U.S. 725, 734 (1997)
(quoting Williamson Cnty. Reg’l Plan. Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 186 (1985)). “[O]ur
analysis is guided by two overarching considerations: ‘the
fitness of the issues for judicial decision and the hardship to
the parties of withholding court consideration.’” Thomas,
220 F.3d at 1141 (quoting Abbott Laby’s v. Gardner, 387
U.S. 136, 148 (1967)).
Generally, in the takings context, “[o]nce the
government is committed to a position . . . the dispute is ripe
for judicial resolution.” Pakdel v. City & County of San
Francisco, 594 U.S. 474, 479 (2021). It is true that the State
has yet to define the circumstances under which “[t]he public
interest . . . require[s] disclosure.” Or. Rev. Stat.
§ 646A.689(10)(a). However, PhRMA has chosen to litigate
this case as a facial challenge and seeks a declaration stating
that every disclosure under the public-interest exception—
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 61

regardless of why that disclosure was made—constitutes an

unconstitutional taking. Resolving this facial claim does not
involve probing fact-specific DCBS public-interest
determinations, and thus there is no finality issue that renders
this claim unripe. Guggenheim v. City of Goleta, 638 F.3d
1111, 1117 (9th Cir. 2010) (en banc) (“Facial challenges are
exempt from [prudential finality requirements] because a
facial challenge by its nature does not involve a decision
applying the statute or regulation.”); see also Suitum, 520
U.S. at 736 n.10 (“[F]acial challenges to regulation are
generally ripe the moment the challenged regulation or
ordinance is passed, but face an uphill battle since it is
difficult to demonstrate that mere enactment of a piece of
legislation deprived the owner of economically viable use of
his property.” (cleaned up)).
To be sure, whether any individual invocation of the
public-interest exception constitutes an unconstitutional
taking is a fact-specific, individualized inquiry. See infra
Section III.B.ii. But we conclude that this issue is properly
addressed as part of the merits of PhRMA’s facial claim. No
additional factual development is necessary for this court to
decide whether every invocation of the exception constitutes
a taking. Because the “issue presented is fit for judicial
resolution,” Abbott Laby’s, 387 U.S. at 153, we see no
reason to withhold a decision on the merits.
ii. Merits of the Takings Clause Claim
Because we conclude that PhRMA’s facial takings claim
is justiciable, we next turn to the merits.
As a threshold matter, we note that manufacturers have
a protectable property interest in their claimed trade secret
information to the extent that the information is “cognizable
as a trade-secret property right under [state] law.”
62 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04

(1984); see also Carpenter v. United States, 484 U.S. 19, 26
(1987) (“Confidential business information has long been
recognized as property.”); St. Michael’s Convalescent Hosp.
v. California, 643 F.2d 1369, 1374 (9th Cir. 1981); CDK
Glob. LLC v. Brnovich, 16 F.4th 1266, 1282 (9th Cir. 2021).
Here, Oregon law recognizes a property interest in trade
secrets, see Or. Rev. Stat. § 307.020(1)(a)(I) (defining trade
secrets as intangible personal property for property tax
purposes); State ex rel. Sports Mgmt. News v. Nachtigal, 921
P.2d 1304, 1309 (Or. 1996) (recognizing that Oregon’s
Uniform Trade Secrets Act “protect[s] the property interests
of the holder of [a] trade secret”), and thus trade secrets
submitted to DCBS constitute protectable property under the
Fifth Amendment. 30
a. Legal Standard
We next turn to the proper legal standard for evaluating
PhRMA’s takings claim. The Supreme Court has articulated
two categories of takings under the Fifth Amendment. See
Cedar Point Nursery v. Hassid, 594 U.S. 139, 147-49
(2021). Where the government “physically acquires private
property for a public use,” a “per se” taking has occurred. Id.
at 147-48. But where the government “instead imposes
regulations that restrict an owner’s ability to use his own

30
We note that the definition of a “trade secret” incorporated by
reference in HB 4005 is not identical to the definition in Oregon’s
Uniform Trade Secrets Act. Compare Or. Rev. Stat. § 192.345(2) (HB
4005 definition), with id. § 646.461(4) (Oregon Uniform Trade Secrets
Act definition). However, the parties have not suggested that there is any
material difference in these definitions, and the State does not dispute
that trade secrets submitted under HB 4005 are property protected by the
Fifth Amendment.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 63

property,” courts “appl[y] the flexible test developed in Penn

Central.” Id. at 148.
PhRMA does not assert that HB 4005 involves a
“physical” taking but nonetheless argues that the public-
interest exception should be considered a per se,
“categorical” taking because it “denies [manufacturers] all
economically beneficial or productive use” of their property.
Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992).
This argument is unpersuasive for three reasons.
First, in the only Supreme Court case addressing an
alleged taking of trade secrets, Ruckelshaus v. Monsanto
Co., 467 U.S. 986 (1984), the Court categorized the alleged
taking as a regulatory taking and looked to the Penn Central
factors. Id. at 1005-06. Second, it is far from clear that
Lucas’s categorical approach extends beyond real property
to intangible personal property. Lucas involved a land-use
regulation and the Supreme Court framed the inquiry as
whether the governmental action “denies an owner
economically viable use of his land.” 505 U.S. at 1016
(emphasis added). Indeed, Lucas explicitly distinguished
land from personal property, explaining that “in the case of
personal property, by reason of the State’s traditionally high
degree of control over commercial dealings, [a plaintiff]
ought to be aware of the possibility that new regulation
might even render his property economically worthless.” Id.
at 1027-28. Third, even if Lucas’s categorical approach were
applicable to intangible personal property, it is far from clear
that every disclosure made under the public-interest
exception will “den[y] all economically beneficial . . . use”
of a manufacturer’s trade secret in all cases. 505 U.S. at 1015
(emphasis added); see also Tahoe-Sierra Pres. Council, Inc.
v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 330 (2002)
(“Anything less than a ‘complete elimination of value,’ or a
64 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

‘total loss,’ . . . require[s] the kind of analysis applied in

Penn Central.” (quoting Lucas, 505 U.S. at 1019 n.8)). As
discussed below, the economic impact of a disclosure will
likely vary case by case, depending on the trade secret at
issue and the extent of the information actually disclosed by
DCBS. See infra Section III.B.ii.b.2.
We therefore categorize PhRMA’s claim as a potential
regulatory taking governed by the standards articulated in
Penn Central.
b. Application of Penn Central
We begin by highlighting again that PhRMA has chosen
to litigate this case as a facial challenge. Because “‘[c]laims
of facial invalidity often rest on speculation’ about the law’s
coverage and its future enforcement” and “‘threaten to short
circuit the democratic process’ by preventing duly enacted
laws from being implemented in constitutional ways,” the
Supreme Court has “made facial challenges hard to win.”
Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024)
(quoting Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 450-51 (2008)); see also Pennell v. City
of San Jose, 485 U.S. 1, 10 (1988); Suitum, 520 U.S. at 736
n.10; Willis v. City of Seattle, 943 F.3d 882, 886 (9th Cir.
2019).
Indeed, given the fact-intensive nature of the Penn
Central framework, this court has repeatedly noted that “[i]t
is not clear that a facial challenge can be made under Penn
Central.” Laurel Park Cmty., LLC v. City of Tumwater, 698
F.3d 1180, 1188 (9th Cir. 2012); see also Guggenheim, 638
F.3d at 1118 & n.32; MHC Fin. Ltd. P’ship v. City of San
Rafael, 714 F.3d 1118, 1126 n.3 (9th Cir. 2013). As in these
previous cases, we “assume, without deciding, that a facial
challenge can be made under Penn Central.” Guggenheim,
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 65

638 F.3d at 1118. However, we stress that PhRMA faces an

“uphill battle,” Suitum, 520 U.S. at 736 n.10, and “cannot
succeed on [its] facial challenge unless [it] ‘establishes that
no set of circumstances exists under which the law would be
valid,’ or [it] shows that the law lacks a ‘plainly legitimate
sweep,’” Moody, 603 U.S. at 723 (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987)) (cleaned up).
When considering whether a regulation constitutes a
taking under Penn Central, courts generally consider three
factors: (1) the regulation’s interference with reasonable
investment-backed expectations, (2) the economic impact of
the regulation, and (3) the character of the government
action. 438 U.S. at 124. We conclude that, under this “ad
hoc,” fact-specific framework, PhRMA is not entitled to
summary judgment on this facial challenge. Id. at 124.
1. Reasonable Investment-Backed
Expectations
“A ‘reasonable investment-backed expectation’ must be
more than a ‘unilateral expectation or an abstract need.’”
Monsanto, 467 U.S. at 1005 (quoting Webb’s Fabulous
Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161 (1980)).
Moreover, “[a]s a general matter, ‘in the case of personal
property, by reason of the State’s traditionally high degree
of control over commercial dealings, [a property owner]
ought to be aware of the possibility that new regulation
might even render his property economically worthless.’”
CDK Glob., 16 F.4th at 1282 (quoting Lucas, 505 U.S. at
1027-28). Here, we conclude that the disclosure of trade
secrets under the public-interest exception will not, in every
instance, upset reasonable investment-backed expectations.
First, reasonable expectations are necessarily tempered
in areas “that ha[ve] long been the source of public concern
66 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

and the subject of government regulation.” Monsanto, 467

U.S. at 1007; see also Maine Educ. Ass’n Benefits Tr. v.
Cioppa, 695 F.3d 145, 154 (1st Cir. 2012) (“As a baseline
proposition, [plaintiff’s] expectations are substantially
diminished by the highly regulated nature of the industry in
which it operates.”); Rowe, 429 F.3d at 316 (controlling
concurrence) (concluding that pharmacy benefit managers
“should . . . have expected the possibility” of disclosure of
trade secrets given the “heavily regulated nature of the
healthcare industry”). The pharmaceutical industry is
unquestionably an industry with a long history of
government regulation. See, e.g., Pure Food and Drugs Act
of 1906, Pub. L. No. 59-384, 34 Stat. 768, 770-71
(prohibiting drug labels from being false or misleading and
requiring labels to list presence and amount of certain
ingredients). Importantly, regulation has not been limited to
health and safety concerns. Increasingly, state and national
governments have enacted regulations that directly address
transparency in the pharmaceutical market. See, e.g., 29
C.F.R. § 2590.715-2715A3(b); Vt. Stat. Ann. tit. 18,
§§ 4633-4637; Cal. Health & Safety Code §§ 127675-
12785; Minn. Stat. Ann. § 62J.84; N.J. Stat. Ann. §§ 45:14-
82.1-82.11; N.Y. Ins. Law § 111-a. As a starting point, then,
manufacturers ought to be aware of the heightened
possibility that regulations may be enacted requiring
disclosure of the exact type of information that may be
commonly claimed as a trade secret under HB 4005.
Second, “the regulatory regime in place at the time the
claimant acquires the property at issue helps to shape the
reasonableness of . . . expectations.” Palazzolo v. Rhode
Island, 533 U.S. 606, 633 (2001) (O’Connor, J., concurring);
see also Ark. Game & Fish Comm’n v. United States, 568
U.S. 23, 38 (2012) (explaining that “the property owner’s
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 67

distinct investment-backed expectations” are “often

informed by the law in force in the State in which the
property is located”). Oregon law has precluded trade secret
misappropriation claims based on the public disclosure of
trade secrets where “the public interest requires disclosure”
since the State first adopted the Uniform Trade Secrets Act
in 1987. See 1987 Or. Laws Ch. 537 § 8(3) (Oregon Uniform
Trade Secrets Act, now codified at Or. Rev. Stat.
§ 646.473(3)); 1973 Or. Laws Ch. 794 § 11 (Oregon’s
Public Records Law, now codified at Or. Rev. Stat.
§ 192.345(2)). The State’s general practice of disclosing
trade secrets in furtherance of the public interest further
diminishes manufacturers’ reasonable expectations of strict
confidentiality in all cases.
Third, concluding that manufacturers have reasonable
expectations of strict confidentiality of trade secrets
submitted to the State under HB 4005 would be in significant
tension with Monsanto, 467 U.S. 986. In Monsanto, the
Supreme Court considered whether the EPA’s disclosure of
trade secret data submitted by Monsanto, a pesticide
manufacturer, under the Federal Insecticide, Fungicide, and
Rodenticide Act (“FIFRA”) constituted an unconstitutional
taking. Id. at 990. The Court analyzed Monsanto’s takings
claim during three different time periods defined by two
amendments to the statutory scheme.
Under FIFRA, which was first adopted in 1947, all
pesticides must be registered with the federal government
before their sale in interstate commerce. Id. at 990-91.
Registration applications include various confidential
information, including the formula for the pesticide and
various health, safety, and environmental data. See id. at
991-93. As originally enacted, the statutory scheme was
“silent with respect to EPA’s authorized use and disclosure
68 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

of data submitted to it in connection with an application for

registration.” Id. at 1008. In 1972, Congress undertook
comprehensive amendments to FIFRA and added a new
provision related to the public disclosure of data submitted
to EPA by pesticide manufacturers in support of a
registration application. Under the new provision, pesticide
manufacturers could designate disclosed information as a
trade secret. Id. at 992. If so designated, EPA was prohibited
from publicly disclosing this information. Id. In 1978, in part
to clarify ambiguities in this regulatory scheme, Congress
enacted additional amendments. Id. at 993. The 1978
amendments permitted the public disclosure of all health,
safety, and environmental data—even if data was claimed as
a trade secret. Id. at 995-96. 31
The Court determined that EPA’s disclosure of data
between the 1972 and 1978 amendments could constitute a
taking as “disclosure conflicts with the explicit assurance of
confidentiality . . . contained in the statute during that
period.” Id. at 1013. However, the Court held that Monsanto
could have had no reasonable expectation of strict
confidentiality for information disclosed to EPA either
before 1972 or after 1978, and thus the disclosure of data
submitted by Monsanto during this time could not constitute
an unconstitutional taking. Before 1972, when the statutory
scheme was silent as to the disclosure of trade secret
information, the Court explained that:

[T]he [federal] Trade Secrets Act is not a

guarantee of confidentiality to submitters of

31
Other types of trade secret information (e.g., manufacturing and
quality control processes) were exempted from the disclosure
requirement. Id. at 996 & n.5.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 69

data, and, absent an express promise,

Monsanto had no reasonable, investment-
backed expectation that its information
would remain inviolate in the hands of EPA.
In an industry that long has been the focus of
great public concern and significant
government regulation, the possibility was
substantial that the Federal Government,
which had thus far taken no position on
disclosure of health, safety, and
environmental data concerning pesticides,
upon focusing on the issue, would find
disclosure to be in the public interest.

Id. at 1008-09. As to data submitted after 1978, the Court

concluded that:

If, despite the . . . data-disclosure provisions

in the statute, Monsanto chose to submit the
requisite data in order to receive a
registration, it can hardly argue that its
reasonable investment-backed expectations
are disturbed when EPA acts to use or
disclose the data in a manner that was
authorized by law at the time of the
submission. . . . [A]s long as Monsanto is
aware of the conditions under which the data
are submitted, and the conditions are
rationally related to a legitimate Government
interest, a voluntary submission of data by an
applicant in exchange for the economic
70 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

advantages of a registration can hardly be

called a taking.

Id. at 1006-07.
HB 4005’s public-interest exception is materially
indistinguishable from the third time period at issue in
Monsanto, i.e., post-1978 amendments. HB 4005 explicitly
authorizes the disclosure of trade secrets submitted to the
State if disclosure is in the public interest. If manufacturers
choose to run the risk of public disclosure of their trade
secrets to do business in the highly regulated pharmaceutical
industry, they “can hardly argue that [their] reasonable
investment-backed expectations are disturbed when [the
State] acts to . . . disclose the data in a manner that was
authorized by law at the time of the submission.” Monsanto,
467 U.S. at 1006-07.
The district court concluded that Monsanto was
inapposite because there, pesticide manufacturers
“voluntarily provided the trade secrets at issue,” whereas
here there is “no quid pro quo.” Summary Judgment
Opinion, 724 F. Supp. 3d at 1190. However, just as in
Monsanto, the benefit provided to manufacturers is the
ability to sell a highly regulated product in a government-
regulated market. In Monsanto, the Supreme Court
explained that in “those situations where [Monsanto] deems
the [trade secret] data to be protected from disclosure more
valuable than the right to sell in the United States,” it can
“decide to forgo registration in the United States and sell a
pesticide only in foreign markets.” 467 U.S. at 1007 n.11.
Here, manufacturers have a similar choice. If they decide the
value of protecting their trade secrets from potential
disclosure to be more valuable than the right to sell in
Oregon, they can decide to forego pharmaceutical sales in
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 71

the state and limit their product sales to other states and
foreign markets.
PhRMA argues that such a choice is illusory and
allowing a manufacturer to sell a legal product is not a
valuable government benefit comparable to the regulatory
permit at issue in Monsanto. This argument is not entirely
without support. In Horne v. Department of Agriculture, the
Supreme Court concluded that a regulation requiring “the
[plaintiffs] to turn over 47 percent of their raisin crop[] in
exchange for the ‘benefit’ of being allowed to sell the
remaining 53 percent” was not a “similar voluntary
exchange” to the exchange in Monsanto. 576 U.S. 350, 366
(2015); see also Nollan v. California Coastal Comm’n, 483
U.S. 825, 833 n.2 (1987) (distinguishing Monsanto on the
basis that “the right to build on one’s own property—even
though its exercise can be subjected to legitimate permitting
requirements—cannot remotely be described as a
‘governmental benefit’”).
However, we conclude that this case is much closer to
Monsanto than to Horne. Access to highly regulated markets
has not historically been conceived as a constitutional right.
See, e.g., Corn Prods. Ref. Co. v. Eddy, 249 U.S. 427, 431
(1919) (“[A] manufacturer or vendor has no constitutional
right to sell goods without giving to the purchaser fair
information of what it is that is being sold.”); Nat’l Fertilizer
Ass’n v. Bradley, 301 U.S. 178, 182 (1937). The “valuable
government benefit” of permitting a manufacturer to sell
products in the highly regulated pesticide market is no
different in kind than the “valuable government benefit” of
permitting a manufacturer to sell products in a highly
regulated pharmaceutical market. Monsanto, 467 U.S. at
1007. The claim at issue in Horne, where plaintiffs
challenged the physical taking of a raisin crop, involved a
72 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

materially different market and a materially different

government action. Indeed, in Horne, the Court explicitly
noted that a law requiring raisin growers to physically turn
over a portion of their crop was factually distinct from “[a]
case about conditioning the sale of hazardous substances on
disclosure of health, safety, and environmental information
related to those hazards.” 576 U.S. at 366.
Finally, manufacturers’ reasonable expectations may
differ significantly depending on the specific trade secret
information and the public interest at issue in a given
disclosure. A wide variety of information can be protected
as a trade secret under Oregon law. See Or. Rev. Stat.
§ 192.345(2) (defining a trade secret to include, but not be
limited to a “formula, plan, pattern, process, tool,
mechanism, compound, procedure, production data, or
compilation of information”). Manufacturers’ reasonable
confidentiality expectations will vary depending on how
similar information has been historically regulated under
preexisting state and federal law. Especially where a claimed
trade secret is related to a drug’s health and safety
information, confidentiality expectations may be
particularly diminished given the long history of government
disclosure requirements for this type of information. See,
e.g., Corn Prods., 249 U.S. at 431-32 (“The right of a
manufacturer to maintain secrecy as to his compounds and
processes must be held subject to the right of the State, in the
exercise of its police power and in promotion of fair dealing,
to require that the nature of the product be fairly set forth.”);
15 U.S.C. § 2613(d)(3) (providing for the disclosure of data
submitted under the Toxic Substances Control Act where
“necessary to protect health or the environment against an
unreasonable risk of injury to health or the environment”).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 73

Ultimately, given the facial nature of PhRMA’s claim

and the broad sweep of trade secret protection, we cannot
say that every disclosure of a trade secret under HB 4005
will upset reasonable investment-backed expectations. We
thus conclude that this factor does not support PhRMA’s
facial takings claim. We note that in Monsanto, the Supreme
Court concluded that “the force of this factor is so
overwhelming . . . that it disposes of the taking question.”
467 U.S. at 1005. However, given the inherently fact-
specific nature of the regulatory takings inquiry, we also
address the additional Penn Central factors.
2. Economic Impact of the Regulation
In evaluating the economic impact of a challenged
regulation under Penn Central, courts assess the extent to
which the regulation “will unreasonably impair the value or
use of [the plaintiff’s] property.” PruneYard Shopping Ctr.
v. Robins, 447 U.S. 74, 83 (1980). In other words, “[w]e
‘compare the value that has been taken from the property
with the value that remains in the property.’” Bridge Aina
Le’a, LLC v. Land Use Comm’n, 950 F.3d 610, 630-31 (9th
Cir. 2020) (quoting Colony Cove Props., LLC v. City of
Carson, 888 F.3d 445, 450 (9th Cir. 2018)). Here, because
the economic impact of the public-interest exception may
vary based on the extent of the disclosure, we conclude that
this factor also does not support PhRMA’s facial takings
claim.
PhRMA argues that each time that DCBS publicly
discloses a trade secret under the public-interest exception,
the trade secret is rendered entirely worthless because the
value of a trade secret lies in its confidentiality. This
argument is not entirely without merit. HB 4005
incorporates the definition of a trade secret as information
74 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

with commercial value “known only to certain individuals

within an organization . . . which gives its user an
opportunity to obtain a business advantage over competitors
who do not know or use it.” Or. Rev. Stat. § 192.345; see id.
§ 646A.689(10)(a). As explained by the Supreme Court in
Monsanto, “[i]f an individual discloses his trade secret to
others who are under no obligation to protect the
confidentiality of the information, or otherwise publicly
discloses the secret, his property right is extinguished.” 467
U.S. at 1002; see also Hartley Pen Co. v. U.S. Dist. Ct., 287
F.2d 324, 328 (9th Cir. 1961) (“[T]he property in a trade
secret is the power to make use of it to the exclusion of the
world. If the world knows the [trade secret] then the property
disappears.” (citation omitted)).
However, it is far from clear that every invocation of the
public-interest exception will necessarily disclose the
information that provides the trade secret owner with its
“competitive edge.” See Monsanto, 467 U.S. at 1012. As
defined in HB 4005, trade secret protection extends to any
information that is valuable and secret enough to afford an
economic advantage over competitors, including
“compilation[s] of information.” Or. Rev. Stat. § 192.345. If,
in the context of a compilation trade secret, the State were to
disclose only a portion of the data making up the claimed
trade secret, it is plausible that the trade secret could retain
much, if not all, of its economic value. See Imperial Chem.
Indus. Ltd. v. Nat’l Distillers & Chem. Corp., 342 F.2d 737,
742 (2d Cir. 1965) (collecting cases for the proposition that
“a trade secret can exist in a combination of characteristics
and components, each of which, by itself, is in the public
domain, but the unified process, design and operation of
which, in unique combination, affords a competitive
advantage and is a protectable secret”). In other words, to
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 75

hold the public-interest exception unconstitutional on its

face, we would have to conclude that HB 4005 mandates
broad disclosure of all the data making up a claimed trade
secret in every case. However, in this pre-enforcement
challenge, it is entirely plausible that DCBS could make a
determination that a more limited disclosure is all that the
public interest requires.
To be sure, many trade secrets implicated by HB 4005
may constitute a single piece of data, and disclosure of that
data may entirely extinguish the value of the trade secret. But
in this facial challenge, PhRMA cannot “establish[] that no
set of circumstances exists under which the law would be
valid.” Moody, 603 U.S. at 723 (emphasis added) (quoting
Salerno, 481 U.S. at 745). “[PhRMA] chose to litigate th[is]
case[] as [a] facial challenge[], and that decision comes at a
cost.” Id. Therefore, this factor does not support PhRMA’s
takings claim.
3. Character of the Government Action
Finally, “the ‘character of the governmental action’—for
instance whether it amounts to a physical invasion or instead
merely affects property interests through ‘some public
program adjusting the benefits and burdens of economic life
to promote the common good’—may be relevant in
discerning whether a taking has occurred.” Lingle v.
Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005) (quoting
Penn Cent., 438 U.S. at 124). This case clearly falls into the
latter category. See CDK Glob., 16 F.4th at 1282
(“Regulations commonly require regulated entities to
disclose certain information. . . . [N]o one conceives of such
requirements as physical takings.”); see also MHC Fin., 714
F.3d at 1128 (concluding that a rent control ordinance was
“much more an ‘adjust[ment of] the benefits and burdens of
76 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

economic life to promote the common good’ than it is a

physical invasion of property” (quoting Penn Cent., 438 U.S.
at 124)).
Moreover, because the “determination that
governmental action constitutes a taking, is, in essence, a
determination that the public at large, rather than a single
owner, must bear the burden of an exercise of state power in
the public interest,” the Supreme Court has “recognized that
this question ‘necessarily requires a weighing of private and
public interests.’” Keystone Bituminous Coal Ass’n v.
DeBenedictis, 480 U.S. 470, 492 (1987) (quoting Agnis v.
Tiburon, 447 U.S. 255, 260-61 (1980)). Here, the public-
interest exception does not permit disclosure of trade secret
information unless and until DCBS makes an affirmative
determination that disclosure is in the public interest. To be
sure, the balance of private and public interests will differ
depending on the nature of the public interest claimed by
DCBS and the trade secret information at issue. But assessed
facially, we cannot conclude that “no set of circumstances
exist” where a significant public interest would clearly
outweigh a manufacturer’s private interest in a trade secret.
See Keystone, 480 U.S. at 485 (concluding that “the
character of the governmental action involved here leans
heavily against finding a taking” where the government had
“acted to arrest what it perceives to be a significant threat to
the common welfare”); see also CDK Glob., 16 F.4th at 1283
(concluding this factor did not support finding a regulatory
taking where the state legislature determined “the statute
promotes the common good through the advancement of
consumer privacy and competition”). Thus, this factor also
fails to support PhRMA’s takings claim.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 77

* * *
The proper weighing of the Penn Central factors varies
from case to case, and courts have sometimes found
individual factors to be dispositive. Compare Hodel v.
Irving, 481 U.S. 704, 716 (1987) (concluding the
“extraordinary” character of the regulation to be dispositive),
with Monsanto, 467 U.S. at 1005 (concluding the lack of
reasonable investment-backed expectations to be
dispositive). Here, however, a weighing of the factors does
not affect our analysis because none of the Penn Central
factors support PhRMA’s facial taking claim. We thus
conclude that the State, not PhRMA, is entitled to summary
judgment on the Fifth Amendment takings claim.
IV. CONCLUSION
For the foregoing reasons, the district court erred in
granting summary judgment in favor of PhRMA on its First
Amendment and Fifth Amendment claims and in entering
final declaratory judgment. Accordingly, we reverse the
district court’s entry of final judgment and remand with
instructions to enter summary judgment for the State on
PhRMA’s First Amendment and Fifth Amendment claims.
REVERSED AND REMANDED.
78 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

BEA, Circuit Judge, concurring in part and dissenting in

part:

The First Amendment to our Constitution, applicable to

the States through the Fourteenth Amendment, protects
people’s “right to refrain from speaking at all.” Wooley v.
Maynard, 430 U.S. 705, 714 (1977). The question in this
case is whether the government can, without passing strict
scrutiny, 1 force an unwilling speaker to opine on an
intensely debated and politically fraught subject because
some potential listeners, including the government itself, can
take advantage of that opinion for their own economic or
political interests. 2
My colleagues answer this question in the affirmative.
They hold that an Oregon statute and its implementing
regulation need not pass strict scrutiny when compelling
drug manufacturers to disclose their internal pricing
strategies because the purchasers of their drug products,

1
Under strict scrutiny, a government regulation is “presumptively
unconstitutional and may be justified only if the government proves that
[the regulation is] narrowly tailored to serve compelling state interests.”
Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018).
2
Where there is a willing speaker, the First Amendment protects both
the speaker’s right to speak and the listeners’ right to listen. Va. State
Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
756–57 (1976). Accordingly, courts have struck down regulations that
abridge willing speakers’ right to speak in the interest of their audiences’
right to hear, as the Supreme Court did in Virginia State Board of
Pharmacy. See id. at 763–65. In the same vein, courts have also upheld
regulations that tackle inaccurate or misleading commercial speech by
willing speakers to, for example, protect their audiences from possible
deception. See, e.g., Zauderer v. Off. of Disciplinary Couns. of the Sup.
Ct. of Ohio, 471 U.S. 626, 650–53 (1985). This case does not involve
such a willing speaker’s speech.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 79

including the State of Oregon itself, can take advantage of

such information when negotiating prices against these drug
manufacturers. Maj. Op. at 40–42.
In so holding, my colleagues discard the well-established
legal tests articulated by the Supreme Court in Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60 (1983); disregard
our Circuit’s binding precedents in X Corp. v. Bonta, 116
F.4th 888 (9th Cir. 2024), and NetChoice, LLC v. Bonta, 113
F.4th 1101 (9th Cir. 2024); and deliver extensive dicta on
how installing a novel analytical framework could help usher
in a “modern government” that requires individuals and
entities to turn in much private information. See Maj. Op. at
16–54.
My colleagues might be right that an attempt to impose
wide-ranging reporting requirements is “a common feature
of modern government,” id. at 16, but it is the hallmark of
our lawful government to demand such disclosures only
within the confines of our Constitution. As the majority
blurs and breaches these well-settled Constitutional
boundaries, I respectfully dissent. 3
I.
Pharmaceutical Research and Manufacturers of America
(“PhRMA”) challenged certain reporting requirements
imposed by Oregon’s Prescription Drug Price Transparency
Act (“HB 4005”) as violative of the First Amendment. Maj.

3
I concur that the plaintiff-appellee’s facial challenge on the Fifth
Amendment ground fails because Oregon’s long-standing public interest
exception in its state trade secret laws undermines the reasonableness of
any expectation of absolute protection of trade secrets in Oregon. Maj.
Op. at 67. The plaintiff-appellee chose to litigate its Fifth Amendment
claim as a facial challenge; “that decision comes at a cost.” Id. at 75
(citation omitted).
80 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Op. at 6–7. HB 4005 requires drug manufacturers to report,

inter alia, detailed information about their pricing strategies
for some prescription drugs to the Oregon Department of
Consumer and Business Services (“DCBS”) and instructs
the DCBS to publish such information unless an exception
applies. Id. (citing Or. Rev. Stat. § 646A.689(3), (9),
(10)(a)). On appeal is the district court’s declaratory
judgment that invalidated Section 646A.689(3) of HB 4005
as offending the First Amendment. 4 Id. at 13 (citing Pharm.
Rsch. & Manufacturers of Am. v. Stolfi, No. 6:19-CV-01996,
2024 WL 1144401 (D. Or. Feb. 16, 2024)).
A.
Section 646A.689(3) requires drug manufacturers to
disclose two types of information. First, it demands
disclosure of certain general marketing information for each
prescription drug covered by HB 4005 (“General Marketing
Information Disclosure Requirement”), including the length
of time that the drug has been marketed, its introductory
price, its price increases over time, its sales revenue, and its
prices in other countries. Or. Rev. Stat. § 646A.689(3)(a),
(b), (g), (i), (j). In my view, HB 4005’s General Marketing
Information Disclosure Requirement compels factual and
uncontroversial commercial information and probably does
not violate the First Amendment. See Zauderer v. Off. of

4
Our review is not limited to Section 646A.689(3)(c) of HB 4005. See
Maj. Op. at 12–15 (noting that PhRMA advanced arguments only against
this one of many provisions under Section 646A.689(3)). It is the district
court’s judgment—not the statements in its opinion or the parties’
arguments below—that we review on appeal. See California v. Rooney,
483 U.S. 307, 311 (1987). The district court’s judgment declared the
entire Section 646A.689(3) of HB 4005 unenforceable as violative of the
First Amendment, so our review extends to the entire Section
646A.689(3).
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 81

Disciplinary Couns. of the Sup. Ct. of Ohio, 471 U.S. 626

(1985). So far, so good.
But Section 646A.689(3) demands much more. One
should not be misled when the majority portrays HB 4005 as
if it contained only this General Marketing Information
Disclosure Requirement. See Maj. Op. at 7, 40, 43. This
requirement is not the point of contention here.
What is really in dispute is Section 646A.689(3)’s
additional requirement that drug manufacturers disclose
their pricing strategies (“Pricing Strategy Disclosure
Requirement”). Section 646A.689(3) obligates drug
manufacturers to disclose, “in the form and manner
prescribed by” the DCBS, all the “factors that contributed to
the price increase[s]” of the drugs covered by HB 4005. Or.
Rev. Stat. § 646A.689(3)(c). The state’s implementing
regulations clarify the statute’s onerous requirements: drug
manufacturers “must” include “narrative description[s] and
explanation[s] of all major financial and nonfinancial factors
that influenced the[ir] decision[s] to increase the [prices] of
the [relevant] drug product[s] and to decide on the amount[s]
of the increase[s].” 5 Or. Admin. R. 836-200-0530(2)(h)
(2019). And Section 646A.689(3) further lists several factors
that Oregon deems potentially relevant to drug prices and
forces drug manufacturers to disclose information pursuant
to these prescribed factors: research and development costs,
manufacturing costs, marketing costs, distribution costs,

5
While this appeal is pending, the DCBS amended its regulation, which
now asks drug manufacturers to furnish this pricing strategy information
“voluntarily.” Or. Admin. R. 836-200-0530(2) (2025). As the
mandatory language in Section 646A.689(3) of HB 4005 remains
unchanged, this amendment of the DCBS’s regulation affects neither the
majority’s analysis nor mine. See, e.g., Maj. Op. at 44–45.
82 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

costs of safety and effectiveness research, the availability of

generic substitutes, attributable profits, and so forth. Or.
Rev. Stat. § 646A.689(3)(d), (e), (f), (h), (k); see also id.
§ 646A.689(l) (requiring drug manufacturers to produce
documents to support the disclosed information).
In my view, HB 4005’s Pricing Strategy Disclosure
Requirement compels non-commercial speech and cannot
survive strict scrutiny under the First Amendment. 6 My
dissent thus focuses on HB 4005’s Pricing Strategy
Disclosure Requirement and the DCBS implementing
regulation thereunder. 7
B.
“It is well-established that the First Amendment protects
‘the right to refrain from speaking at all’” and, accordingly,
any “forced disclosure of information” “triggers First
Amendment scrutiny.” NetChoice, 113 F.4th at 1117
(quoting Wooley, 430 U.S. at 714). “When a state ‘compels
individuals to speak a particular message,’ the state ‘alters
the content of their speech’” and engages in a content-based
regulation. X Corp., 116 F.4th at 900 (quoting Nat’l Inst. of
Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 766 (2018))

6
Although the district court did not apply strict scrutiny when it
invalidated Section 646A.689(3) of HB 4005 as violative of the First
Amendment, we can affirm the judgment below on any ground supported
by the record. See Sec. Life Ins. Co. of Am. v. Meyling, 146 F.3d 1184,
1190 (9th Cir. 1998). Oregon does not claim Section 646A.689(3) can
survive strict scrutiny, so the only question is whether strict scrutiny
applies in the first place.
7
I would remand this case so that the district court could decide in the
first instance whether HB 4005’s Pricing Strategy Disclosure
Requirement is severable from the remainder of Section 646A.689(3).
See Maj. Op. at 54–55.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 83

(cleaned up). Such a content-based regulation must

withstand strict scrutiny unless it compels only commercial
speech. Id. at 899–900. Hence, the First Amendment
analysis in this case turns on whether the speech compelled
by HB 4005’s Pricing Strategy Disclosure Requirement
(“Pricing Strategy Disclosures”) constitutes commercial
speech.
The “starting point” for this commercial speech inquiry
is a “common-sense” one: Courts ask whether HB 4005’s
Pricing Strategy Disclosures do “no more than propose a
commercial transaction.” Id. at 900 (quoting Ariix, LLC v.
NutriSearch Corp., 985 F.3d 1107, 1115 (9th Cir. 2021), and
United States v. United Foods, Inc., 533 U.S. 405, 409
(2001)). My colleagues perform essentially no analysis
under this test; they recite it and move on. See Maj. Op. at
36–38. In my view, HB 4005’s Pricing Strategy Disclosures
are a far cry from a proposal for commercial transactions.
After all, rational sellers do not propose commercial
transactions by disclosing detailed rationales underlying
their pricing decisions to potential buyers.
As a corollary of this “commercial transaction proposal”
test, our Circuit has held that a compelled disclosure
constitutes commercial speech if it “communicates the terms
of an actual or potential transaction.” X Corp., 116 F.4th at
901. While the General Marketing Information Disclosures
under HB 4005 may communicate transaction terms, 8 the

8
The majority asserts that HB 4005 may lawfully compel drug
manufacturers to identify the generic competitors of their drug products
because this type of information constitutes common terms of
commercial transactions. This is not the kind of commercial transactions
with which I am familiar; to my knowledge, sellers usually do not inform
84 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Pricing Strategy Disclosures convey far more than mere

commercial terms. One need only ask oneself if a buyer of
a Ford pickup truck would expect the dealer to tell him—as
the terms of the potential transaction between them—all the
major financial and nonfinancial factors that influenced the
pickup’s price, including, for example, the Ford Dearborn
management’s internal estimates of how competitors may
price comparable pickups, its internal evaluation of
competitors’ business strengths, or its internal forecasts of
tax credits and tariffs. Probably not.
Not denying this, the majority shifts the focus by stating
in passing that HB 4005’s Pricing Strategy Disclosures
concern “economic information that is no less tethered to
commercial transactions” than are actual terms of these
transactions. Maj. Op. at 40; see also id. at 42 n.18 (“Speech,
such as [the one compelled by HB 4005] . . . is not far
removed from the ‘core’ of commercial speech, i.e., speech
that ‘propose[s] a commercial transaction.’” (citation
omitted)). But this vague standard of what is closely tethered
to or what is not far removed from true commercial speech
is not the “commercial transaction proposal” test that the
Supreme Court and our Circuit have long applied.
Our inquiry should have ended here: Strict scrutiny
should apply because HB 4005’s Pricing Strategy Disclosure

potential buyers of cheaper alternatives competitive to the sellers’ own

products. The majority has reached this counterintuitive conclusion
seemingly because the U.S. Food and Drug Administration and
pharmacies have made such information publicly available. See Maj.
Op. at 40. This reasoning misconceives our compelled speech doctrine.
Just because a message is otherwise publicly available does not mean the
government can freely force a person to be a carrier of that message.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 85

Requirement compels non-commercial speech that does

much more than just propose a commercial transaction.
If, however, one were to believe that HB 4005’s Pricing
Strategy Disclosure Requirement somehow presents “a close
question” as to whether it compels non-commercial speech,
the Supreme Court in Bolger, 463 U.S. at 66–67, has set
forth some “important guideposts” to help us decide such a
close case. X Corp., 116 F.4th at 900 (discussing the “so-
called Bolger factors”). Bolger teaches that “strong support”
for finding speech to be commercial exists where the
following factors are satisfied: (1) “the speech is an
advertisement”; (2) “the speech refers to a particular
product”; and (3) “the speaker has an economic motivation.”
X Corp., 116 F.4th at 900 (quoting Hunt v. City of L.A., 638
F.3d 703, 715 (9th Cir. 2011), which cited Bolger, 463 U.S.
at 66–67). The first and third Bolger factors counsel against
finding commercial speech here: HB 4005’s Pricing Strategy
Disclosures are not akin to advertisements, and no drug
manufacturer has economic motivations to volunteer such
disclosures, else PhRMA would not have brought this case.
This, again, should have ended our inquiry, even were
ours a close case. But the majority simply recounts the
Bolger factors and fails to apply them meaningfully.
Worse, the majority declares that the “commercial
transaction proposal” test and the Bolger factors are not a
“neat[] fit” and thus “inapt” for determining the proper level
of First Amendment scrutiny where, as here, a law mandates
companies to report information to the government and
directs the government to publish the reported information.
Maj. Op. at 29. According to the majority, a “submission of
information to the government” “typically does not ‘propose
a commercial transaction,’” even if the submission contains
86 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

only commercial speech. Id. (emphasis in original) (citation

omitted). And it “would be odd” to apply less First
Amendment scrutiny to a mandated display of a price
increase in a consumer-facing advertisement than to a
compelled disclosure of the same information in a
government-facing report. Id. at 29.
That, if true, would indeed be odd. But the majority
misunderstands the relevant doctrinal tests. Our precedents
instruct us to consider whether the content of the speech
compelled in a government submission is akin to something
people would otherwise disclose in proposing commercial
transactions. The inquiry focuses on the content, not the
format, of the compelled speech. 9 Under our precedents, HB
4005’s Pricing Strategy Disclosure Requirement compels
non-commercial speech not because drug manufacturers’
submissions to the DCBS serve no function of proposing
commercial transactions, but because detailed pricing
strategies are not akin to anything people would otherwise
disclose in proposing commercial transactions, as discussed
above. By the same logic, speech that communicates such
quintessential transaction terms as a price increase—the type
of information that HB 4005’s General Marketing
Information Disclosure Requirement compels—would
constitute commercial speech wherever it appears, be it a
consumer-facing advertisement or a government-facing
report. Commercial speech does not lose its commercial

9
Of course, the fact that certain speech already appears in the format of
a product advertisement is evidence that the speech is something people
would disclose in proposing commercial transactions. Hence the first
Bolger factor. And if certain speech refers to a specific product, that
factor is evidence that the speech might be something people would
deliver in proposing commercial transactions. Hence the second and
third Bolger factors.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 87

nature because it is made in a government submission rather

than in the process of proposing a transaction.
Therefore, our doctrinal tests, if understood correctly, are
not inapt here.
II.
In fact, our doctrinal tests are very much apt in this case,
as they were in X Corp. See 116 F.4th at 899–903. Like this
case, X Corp. involved a law that required companies to
report information to the government and directed the
government to publish the reported information. Reviewing
that law under the First Amendment, the X Corp. panel did
not find it necessary to abandon the “commercial transaction
proposal” test or the Bolger factors. See 116 F.4th at 902
(reprimanding the district court for its deviation from the
doctrinal tests for discerning commercial speech). Rather,
the X Corp. panel, unlike the majority here, deemed these
well-established legal tests a proper fit and applied them
faithfully.
A.
In X Corp., X Corp., the owner of the social media
platform X (formerly known as Twitter), sought a
preliminary injunction against the enforcement of California
State Assembly Bill 587 (“AB 587”). Id. at 894. Broadly
speaking, AB 587 required large social media companies,
including X Corp., to submit reports to the California
Attorney General, (1) disclosing social media companies’
terms of services and any existing content moderation
policies (“TOS”), and (2) identifying from those TOSs
specific terms, policies, and practices, if any, that address
several content categories prescribed by the State of
California, including hate speech, racism, misinformation,
88 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

radicalization, and so forth (“TOS Category Report”). See

id. at 895–97 (quoting Cal. Bus. & Prof. Code § 22677). AB
587 then directed the Attorney General to publish these
reports. Cal. Bus. & Prof. Code § 22677(c).
Regarding the TOS Category Reports in particular,
Section 22677(a)(3) of AB 587 required social media
companies to report whether and, if so, how they defined the
content categories listed by California. Id. at 896. Section
22677(a)(4)(A) also required social media companies to
report their content moderation policies, if any, that
addressed these content categories pursuant to the social
media companies’ own definitions. Id. And Section
22677(a)(5) further required social media companies to
report the high-level statistics as to how they had been
moderating these content categories, if they had moderated
them at all (e.g., the total number of flagged items of content
in each category). Id. at 896–97. Under this disclosure
regime, as the X Corp. panel observed, “[n]o matter how a
social media company chooses to moderate [the content on
its platform], the company will face backlash from its users
and the public.” Id. at 899 n.8. “That is true even if the
company decides not to define the enumerated [content]
categories, because [it] will draw criticism for under-
moderating [its] [social media platform].” Id.
The district court denied X Corp. a preliminary
injunction, holding that X Corp. was unlikely to prevail
because both the TOSs and the TOS Category Reports
constituted commercial speech and, accordingly, their
compelled disclosure likely did not violate the First
Amendment. X Corp. v. Bonta, No. 2:23-CV-01939, 2023
WL 8948286, at *1–2 (E.D. Cal. Dec. 28, 2023). With
respect to the TOSs, the district court found that they were
“part of a commercial transaction and appear[ed] to satisfy
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 89

the Bolger factors.” Id. at *1. As to the TOS Category

Reports, the district court found that they did “not so easily
fit the traditional definition of commercial speech.” Id. at
*2. Sound familiar? Much like the majority here, the district
court in X Corp. nonetheless held that the TOS Category
Reports constituted commercial speech, without conducting
any meaningful analysis under the doctrinal commercial
speech tests. See id.; see also X Corp., 116 F.4th at 902.
We reversed the district court’s ruling on the TOS
Category Reports. X Corp., 116 F.4th at 904. We held that,
while social media platforms’ TOSs “m[ight] be commercial
speech,” the TOS Category Reports were “different in
character and kind” because they would reveal social media
companies’ “opinions about and reasons for” their TOSs. Id.
at 901.
Specifically, the X Corp. panel first found that the TOS
Category Reports did “not satisfy the usual definition of
commercial speech—i.e., speech that does no more than
propose a commercial transaction.” Id. (cleaned up)
(citations omitted). The panel further reasoned that the TOS
Category Reports “fail[ed] to satisfy at least two of the three
Bolger factors”: The compelled disclosures were not
advertisements, and social media companies did not have
any economic motivation in disclosing the TOS Category
Reports. Id. (citations omitted). Therefore, after faithfully
applying these doctrinal tests, the X Corp. panel concluded
that the TOS Category Reports compelled non-commercial
speech.
90 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Additionally, the X Corp. panel distinguished social

media companies’ TOS Category Reports from their TOSs:

[T]he [TOS] Category Reports are not

commercial speech. They require a company
to recast its content-moderation practices in
language prescribed by the State, implicitly
opining on whether and how certain
controversial categories of content should be
moderated. As a result, few indicia of
commercial speech are present in the Content
Category Reports.
...
. . . [T]he [TOS] Category Reports go further
[than merely communicating the terms of
actual or potential transactions]: they express
a view about those terms by conveying
whether a company believes certain
categories should be defined and proscribed.
...
. . . The [TOS] Category Report provisions
would require a social media company to
convey the company’s policy views on
intensely debated and politically fraught
topics, including hate speech, racism,
misinformation, and radicalization, and also
convey how the company has applied its
policies. . . .

Id. at 901–02 (emphasis in original). For all these reasons,

the X Corp. panel held that the TOS Category Reports
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 91

amounted to non-commercial speech and, accordingly, AB

587 likely failed strict scrutiny. Id. at 903.
B.
So too is the case here. While drug prices—like social
media platforms’ TOSs—are terms of commercial
transactions, the detailed breakdown of and the internal
rationales for these prices—like the TOS Category
Reports—do much more than just propose a commercial
transaction, and they do not resemble advertisements or
anything that drug manufacturers would have an economic
motivation to disclose.
Additionally, HB 4005’s Pricing Strategy Disclosures go
further than merely communicating the pricing terms for
actual or potential transactions: They recast drug
manufacturers’ pricing strategies in language prescribed by
Oregon and force drug manufacturers to voice their views as
to how drugs are and should be priced.
“Our lodestars in deciding what level of scrutiny to apply
to a compelled statement must be the nature of the speech
taken as a whole and the effect of the compelled statement
thereon.” Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487
U.S. 781, 796 (1988). Here, HB 4005’s Pricing Strategy
Disclosure Requirement prescribes language that focuses
primarily on costs, implying that any increase in drug prices
can be fairly justified only by increases in costs, rather than
other factors such as drug manufacturers’ insights and
92 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

foresights regarding the relevant market demands and

competitive dynamics. 10 See Or. Rev. Stat. § 646A.689(3).
Of course, drug manufacturers can offer explanations
other than costs for their pricing decisions. See Or. Rev.
Stat. § 646A.689(3)(c), (k); Or. Admin. R. 836-200-
0530(2)(h) (2019). In doing so, however, drug
manufacturers would have to divulge their overall pricing
strategies, which are driven by not only cold numbers but
also a host of qualitative judgments. Thomas T. Nagle &
Georg Müller, THE STRATEGY AND TACTICS OF PRICING: A
GUIDE TO GROWING MORE PROFITABLY 21, 172 (7th ed.
2024) (“There is no substitution for managerial experience
and judgment when setting prices. . . . [P]rice setting usually
. . . balances costs, customer value, strategic goals, and
potential competitive responses.”). A pharmaceutical
company’s pricing strategy may reveal its subjective
assessment of customer demands, id. at 26–55, its marketing
and communication strategies, 11 see id., at 56–76, 158–63,

10
The majority argues that this implied message would be attributed only
to Oregon because the public knows drug manufacturers are forced by
HB 4005. See Maj. Op. at 43–44 n.22. This argument, if it were to carry
the day, would uproot our compelled speech doctrine under the First
Amendment, as any message compelled by the government would
henceforth be deemed attributable only to the government.
11
Granted, companies may sometimes find it advantageous to
communicate publicly certain rationales behind their pricing decisions.
See Nagle & Müller, supra, at 170–72; see also Maj. Op. at 36–37 n.15.
That some companies have elected or have been encouraged to engage
in such a communication strategy every now and then does not license
Oregon to compel similar speech in all circumstances. More
importantly, HB 4005’s Pricing Strategy Disclosures are different in
character from disclosures typically involved in such a voluntary
communication strategy. HB 4005’s Pricing Strategy Disclosure
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 93

and even its opinion on issues of public concern. In fact,

failure to consider public concern is a textbook mistake:

Take the example of a pharmaceutical

company that purchased an old prescription
drug and hiked the price many-fold. The
price change may have been considered
economically rational—after all, the drug had
few substitutes and consequently demand
was very inelastic. Yet what the company
failed to consider was the power of
community-held norms of fairness in the
decision and the resulting backlash against it
and the entire pharmaceutical industry in
general by an outraged public.

Id. at 154.
A drug manufacturer might consider at what level a price
spike would spark public outcry and thereby cap any price
increase below that level. In the relevant internal
discussions, employees might opine on a myriad of
controversial topics: whether a free market should allow
drug manufacturers to set prices as they see fit; to what
extent public sentiments against drug manufacturers are
justified; and whether the government has adequate political

Requirement requires drug manufacturers to disclose all the major

financial and nonfinancial factors that influenced their pricing decisions,
thereby denying drug manufacturers the freedom to tailor what to
disclose and what to withhold about their pricing decisions. See, e.g.,
Maj. Op. at 36–37 n.15 (citing Utpal M. Dholakia, If You’re Going to
Raise Prices, Tell Customers Why, HARV. BUS. REV. (June 29, 2021),
which advised companies to consider crafting “vivid and compelling
stor[ies] for why the price[s] [are] being increased that focus[] on
customer value”).
94 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

will and power to quell a given price increase. HB 4005’s

Pricing Strategy Disclosure Requirement would compel
disclosure of all these nuanced views regarding how drugs
are and should be priced. As such, HB 4005’s Pricing
Strategy Disclosure Requirement does not simply compel
“product-specific, economic information.” Maj. Op. at 44.
Moreover, HB 4005’s Pricing Strategy Disclosures
would prompt drug manufacturers to express their broader
views on the intensely debated and politically fraught topic
of allegedly inflated prescription drug prices. PhRMA
argues that HB 4005 seeks to reinforce Oregon’s message
that drug manufacturers are responsible for the allegedly
inflated drug prices in our country, as HB 4005 did not
require other participants in the pharmaceutical industry—
pharmacy benefit managers, for instance—to make similar
disclosures. In rejecting this argument, the majority
envisions that drug manufacturers are free to refute Oregon’s
political message by opining that other market participants
may have contributed to drug price increases. See id. at 44–
45. In other words, the majority acknowledges that HB
4005’s Pricing Strategy Disclosure Requirement will
probably drag drug manufacturers into a public debate as to
who is to blame for the allegedly inflated drug prices.
Therefore, HB 4005’s Pricing Strategy Disclosures
convey drug manufacturers’ “opinions about and reasons
for” their drug prices. 12 X Corp., 116 F.4th at 901. To

12
Relying on Oregon’s purported representations at oral argument, the
majority maintains that the “DCBS would consider the following
straightforward list of factors to be a satisfactory response to Or. Rev.
Stat. § 646A.689(3)(c): ‘supply cost increases, research costs, and
investor return.’” Id. at 43 n.20. To begin with, we review the
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 95

follow X Corp., we must treat HB 4005’s Pricing Strategy

Disclosure Requirement as compelling non-commercial
speech and subject it to strict scrutiny.
C.
Departing from X Corp.’s teaching, the majority
articulates a new legal test. To decide whether a regulatory
disclosure constitutes commercial speech, my colleagues ask
two questions: (1) whether the disclosure would improve the
“free flow of commercial information”; and (2) whether the
disclosure is “incidental to a commercial transaction.” Maj.
Op. at 40, 42 n.18.
Given that any disclosure, almost by definition, would
improve the free flow of information, the majority’s new test
depends on just its second question. To answer that
question, the majority determines whether a forced

constitutionality of HB 4005 as legislated, not as how counsel

hypothesized it should be read. More importantly, Oregon conceded
only that a straightforward list of factors such as supply cost increases,
research costs, and investor return would suffice “if [it in fact] explains
the price increase.” Oral Arg. at 2:41-3:33. What if it does not explain
the price increase? Suppose a drug manufacturer decides to raise the
price for its domestically manufactured drugs because, in its opinion, its
competitors are likely to suffer significant tariffs for their foreign-
manufactured generic substitutes. Does HB 4005 compel the drug
manufacturer to disclose this rationale and the underlying opinions and
analyses by demanding the disclosure of “all major financial and
nonfinancial factors” that influenced drug manufacturers’ pricing
decisions? Or. Admin. R. 836-200-0530(2)(h) (2019); see also Or. Rev.
Stat. § 646A.689(3)(c), (k); id. § 646A.689(l) (requiring drug
manufacturers to produce supporting documents). Of course, it does. In
fact, Section 646A.689(3)(c)’s very function is to capture nuanced
financial and nonfinancial considerations other than, for example,
research costs, of which other HB 4005 sections including Sections
646A.689(3)(e) and 646A.689(3)(f)(D) already demand disclosure.
96 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

disclosure “has no independent expressive meaning” outside

the context of commercial transactions. Id. at 41; see also
id. at 42 n.18.
But even under the majority’s newly minted test, HB
4005’s Pricing Strategy Disclosures constitute non-
commercial speech. As detailed above, drug manufacturers’
pricing strategies can be influenced by many factors,
including drug manufacturers’ views on issues of public
concern such as how drugs should be priced and who should
be held responsible for the allegedly inflated drug prices.
The majority does not explain why such views have no
independent expressive meaning outside the drug sale
context.
Not only that, but the majority’s test and reasoning
effectively overrule X Corp., 116 F.4th 888, which is
impermissible in our Circuit, see Miller v. Gammie, 335 F.3d
889, 899 (9th Cir. 2003). To illustrate this point, let’s apply
the majority’s test and reasoning to X Corp. 116 F.4th 888.
In X Corp., how social media companies chose to define and
moderate different content on their platforms had little
independent expressive meaning outside of their social
media services. The number of items of content concerning
hate speech that X Corp. had flagged—one part of a typical
TOS Category Report under AB 587, id. at 896–97—carried
little standalone expressive meaning other than describing X
Corp.’s content moderation practices in its social media
services.
The majority argues that, the speech compelled by HB
4005 in this case would not exist absent commercial
transactions, whereas in X Corp., “[w]hat constitute[d] ‘hate
speech,’ for example, [was] a matter of public debate and
concern outside the context of a social media company’s
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 97

terms of service (or, indeed, any commercial transaction).”

Maj. Op. at 43 n.21. The majority misreads AB 587. AB
587 compelled social media companies to disclose how they
had defined and moderated such content categories as hate
speech for purposes of running their social media platforms,
not what should constitute hate speech in the abstract or in
the public forum. See X Corp., 116 F.4th at 896–97. In fact,
the TOS Category Reports compelled by AB 587 were
derived from social media companies’ TOSs, which were
largely “directed to [their] potential consumers” and might
“presumably play a role in [these consumers’] decision of
whether to use the platform.” Id. at 902 n.10. As such, the
TOS Category Reports would not come into existence absent
social media companies’ provision of their services.
Therefore, the TOS Category Reports would have
amounted to commercial speech under my colleagues’ novel
test and myopic reasoning, contrary to what the X Corp.
panel concluded less than a year ago. As this panel lacks the
authority to overrule such published opinions of this Court
as X Corp., I cannot join my colleagues. See Miller, 335
F.3d at 899.
D.
To distinguish X Corp., the majority advances three
arguments. First, the majority argues that, while issues such
as hate speech are “intensely political,” prescription drug
prices are not. Maj. Op. at 43. Why? As far as I can tell,
the majority cites nothing but its own common sense. See
id. at 38.
But it is unclear whether the majority’s common sense
aligns with our country’s when it comes to what is or is not
politically charged. See, e.g., Fact Sheet: President Donald
J. Trump Announces Actions to Get Americans the Best
98 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Prices in the World for Prescription Drugs, THE WHITE

HOUSE (July 31, 2025), https://www.whitehouse.gov/fact-
sheets/2025/07/fact-sheet-president-donald-j-trump-
announces-actions-to-get-americans-the-best-prices-in-the-
world-for-prescription-drugs/ (announcing that the
executive branch sent “letters to leading pharmaceutical
manufacturers outlining the steps they must take to bring
down the prices of prescription drugs in the United
States. . . .”); Sarah Fioroni, Five Things to Know:
Healthcare and the U.S. Election, GALLUP (Sept. 30, 2024),
https://news.gallup.com/poll/651386/five-things-know-
healthcare-election.aspx (reporting that 47% of the
respondents in a September 2024 preelection healthcare
subject survey ranked “reducing drug costs” as “the single
most or among the most important issues determining their
votes” in the 2024 presidential election). First Amendment
protections cannot depend on a judge’s self-determined and
unelaborated common sense regarding what is “intensely
political” and what is not. 13
Second, the majority asserts that, while AB 587 called
for social media companies’ opinions, HB 4005 simply

13
That prices and costs are economic concepts does not automatically
mean that HB 4005’s Pricing Strategy Disclosures are nonpolitical.
Suppose Congress passes a law requiring companies to disclose whether
and, if so, how tariffs have contributed to the prices they charge. Does
this hypothetical law necessarily compel only commercial speech simply
because prices and tariffs are economic concepts? I am not so sure. See
Wyatte Grantham-Philips & Josh Boak, Amazon Is Not Planning to
Break Out Tariff Costs Online as White House Attacks Potential Move,
THE ASSOCIATED PRESS (Apr. 29, 2025),
https://apnews.com/article/amazon-tariff-prices-trump-white-house-
8598569632263872a6c04f7ef330c0fd. In my view, a person’s speech is
not automatically subject to a lower level of scrutiny simply because it
involves economic concepts.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 99

requires drug manufacturers to disclose, “as a matter of

historical fact,” their considerations in setting drug prices.
Maj. Op. at 44. This assertion is incorrect as to both AB 587
and HB 4005. AB 587 directed social media companies to
disclose, as a matter of historical fact, whether their TOSs
defined and moderated such content categories as hate
speech, what their definitions of those content categories
encompassed, and how their moderation practices addressed
those content categories. X Corp., 116 F.4th at 896–97. To
be clear, AB 587 did not require social media companies to
express any “normative” view in “value-laden” language.
Maj. Op. at 43. If a social media company’s TOSs did not
address any of the content categories prescribed by AB 587,
an answer of “not applicable” under that category would
suffice, and no additional narratives or explanations were
necessary. X Corp., 116 F.4th at 901 n.9. Notwithstanding
this ostensible call for only factual disclosures, the X Corp.
panel struck down AB 587 because it forced social media
companies to opine “implicitly” on whether and how certain
content categories should be defined and proscribed. Id. at
901.
The same reasoning applies here. Even assuming HB
4005’s Pricing Strategy Disclosure Requirement covers only
what factors, as a matter of historical fact, drug
manufacturers considered in setting their prices, that
requirement still compels drug manufacturers to opine
implicitly on how their drugs should be priced, as discussed
above. What’s more, HB 4005’s Pricing Strategy Disclosure
Requirement demands not only a recount of historical facts,
but also “narrative[s]” and “explanation[s]” of what drug
manufacturers “deem[]” to have “contributed to the price
increase[s]” of the relevant drugs. Or. Rev. Stat.
§ 646A.689(3)(c), (k); Or. Admin. R. 836-200-0530(2)(h)
100 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

(2019); see also Narrative, BLACK’S LAW DICTIONARY (12th

ed. 2024) (defining a “narrative” to mean “[a]n account or
description of a selected set of events, facts, experiences, or
the like; a story” (emphasis added)); Explanation, BLACK’S
LAW DICTIONARY (12th ed. 2024) (defining an
“explanation” to mean a statement made in the “activity or
process of expounding, interpreting, or making something
intelligible” and/or the “interpretation or meaning given to
something by someone who expounds it” (emphases
added)). This means drug manufacturers must voice the
reasons which, in their judgment and interpretation, caused
the relevant drug price increases. As such, the majority
cannot distinguish X Corp. by portraying HB 4005’s Pricing
Strategy Disclosure Requirement as more factual than AB
587’s TOS Category Report provisions—if anything,
Oregon calls for more opinions and judgments than did
California.
Finally, the majority asserts that treating HB 4005’s
Pricing Strategy Disclosures as commercial speech is at odds
with our case laws regarding retail product warnings. Maj.
Op. at 37–38 n.15, 43–44 n.22. Like the X Corp. panel, I
disagree. 116 F.4th at 901. Granted, our Circuit has treated
certain retail product warnings as commercial speech, even
though the traditional legal tests for finding commercial
speech could sometimes suggest otherwise. Id. But retail
product warnings constitute a “limited” exception
inapplicable here. Id. Retail product warnings describe the
products being sold to the public or communicate the terms
of the relevant transactions, whereas HB 4005’s Pricing
Strategy Disclosures—much like AB 587’s TOS Category
Reports—“go further” by at least “implicitly” conveying
drug manufacturers’ “opinions about and reasons for” their
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 101

drug prices. Id. Therefore, cases regarding retail product

warnings are inapposite.
III.
The majority has much more to say beyond disposing of
the case before us. In dicta, the majority formulates a novel
framework for future speech compulsion cases under the
First Amendment. I address these dicta lest they become
precedential in our Circuit. United States v. Johnson, 256
F.3d 895, 914 (9th Cir. 2001) (en banc) (Kozinski, J.,
concurring).
The majority first distinguishes “government reporting
requirements” (i.e., laws that require entities and individuals
to report information to the government and direct the
government to publish such reported information) from
“direct disclosure requirements” (i.e., laws that compel
communication of certain information directly from one
individual or private entity to another). Maj. Op. at 17–18.
The majority then argues that, while “direct disclosure
requirements” are presumptively subject to strict scrutiny
unless the commercial speech exception applies,
“government reporting requirements” need to pass strict
scrutiny only when they compel political or ideological
statements. Id. at 18–21. My colleagues call this new
framework a “potentially strict” approach, as opposed to the
“presumptively strict” approach that I have discussed so far.
Id. at 19–20. With this new framework, my colleagues
would like to skirt the commercial speech inquiry where, as
here, a government reporting requirement is at issue. Id. at
27–28.
102 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Perhaps unsure about this fresh framework, my

colleagues elaborate it only in dicta. 14 Though rather
lengthy—almost twice the length of the majority’s
discussion of strict scrutiny’s inapplicability in this case,
compare id. at 16–36, with id. at 36–48—these dicta are not
well-reasoned, a requirement for dicta to become
precedential in our Circuit. See Johnson, 256 F.3d at 914.
In my view, these dicta contravene the binding precedents of
our Circuit and lack support in the other cases that the
majority discusses. 15
A.
Of course, most conspicuous is the absence of the
majority’s novel framework in X Corp. See 116 F.4th 888.
My colleagues admit that absence. Maj. Op. at 33–34. But
they argue that their framework would nevertheless lead to
the same conclusion as came the X Corp. panel. Id. at 34.
This argument does not change the fact that our X Corp.
panel never endorsed the majority’s framework, explicitly or
implicitly.
Moreover, the majority’s new framework contradicts
another binding precedent in our Circuit: NetChoice, 113

14
See Maj. Op. at 36 (“Although, in our view, using the potentially strict
approach followed by our sister circuits would be more doctrinally sound
and avoid unintended consequences, we do not need to fully resolve
whether X Corp. requires us to use the presumptively strict approach in
this case, because both approaches lead us to the same conclusion.”).
15
I also note that HB 4005’s Pricing Strategy Disclosure Requirement,
as discussed above, compels drug manufacturers to opine on an
“intensely debated and politically fraught” subject, X Corp., 116 F.4th at
902, so it should be subject to strict scrutiny even under the majority’s
“potentially strict” approach.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 103

F.4th 1101. 16 In NetChoice, a trade association of online

businesses sued the California Attorney General, seeking to
invalidate as violative of the First Amendment the California
Age-Appropriate Design Code Act (“CAADCA”), a statute
aimed at protecting children’s privacy and influencing
online products’ designs to this end. Id. at 1108. At issue
was CAADCA’s reporting requirement (i.e., Data Protection
Impact Assessment Report, or “DPIA report”), which
compelled online businesses to identify risks of “material
detriment to children” and to create a timed plan mitigating
these risks. Id. at 1109–10 (quoting Cal. Civ. Code
§ 1798.99.31(a)(1), (a)(2)). Although the CAADCA, like
HB 4005, imposed a government reporting requirement, the
NetChoice panel analyzed the DPIA report requirement
using the traditional “commercial transaction proposal” test
and the Bolger factors. Id. at 1119–20. After concluding
that the DPIA report requirement forced online businesses to
“do far ‘more than propose a commercial transaction’” and
that the requirement satisfied none of the Bolger factors, id.
(citations omitted), the NetChoice panel applied strict
scrutiny and held that the DPIA report requirement fell “well
short of satisfying strict First Amendment scrutiny,” id. at
1121, 1122.
Despite this reasoning and holding, my colleagues
believe NetChoice supports their framework because the
NetChoice panel engaged in a threshold inquiry before
determining whether the DPIA reports constituted

16
NetChoice and X Corp. were argued on the same day before the same
panel, and both opinions were authored by Judge Milan D. Smith.
Compare X Corp., 116 F.4th 888, with NetChoice, 113 F.4th 1101. The
NetChoice opinion preceded the X Corp. opinion by about half a month;
there is no reason to believe X Corp. departed from NetChoice in any
meaningful way.
104 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

commercial speech. That threshold inquiry, in the majority’s

view, was whether the DPIA report requirement mandated
the covered online businesses to make an opinion statement
“on a political issue.” Maj. Op. at 32.
But the majority is mistaken. The NetChoice panel
simply inquired, as a threshold matter, whether the DPIA
report requirement compelled speech or conduct, a
traditional threshold inquiry for any case concerning the Free
Speech Clause of the First Amendment. See, e.g., 113 F.4th
at 1117 (“Nor can we, as the State suggests, ignore that the
DPIA [report] requirement compels speech simply because
other parts of the CAADCA may primarily or exclusively
regulate non-expressive conduct. The primary effect of the
DPIA [report] provision is to compel speech, distinguishing
it from statutes where the compelled speech was ‘plainly
incidental to the [law’s] regulation of conduct.’”); id. at 1118
(reasoning that, even if the DPIA report requirement
compelled the conduct of mitigating risks to children, the
DPIA report requirement still triggered strict First
Amendment scrutiny because it “deputize[d] covered
businesses into serving as censors for the State,” thereby
interfering with these businesses’ “editorial choices” and
forcing them to determine “what material is potentially
harmful to children”). Nowhere did the NetChoice panel
apply or approve the majority’s new framework. See id. at
1116–18.
What’s more, had the majority’s framework controlled
the NetChoice panel, it would have concluded that the DPIA
report requirement did not compel any political or
ideological messages and thus need not pass strict scrutiny,
opposite to what NetChoice held. The NetChoice panel
never described the DPIA reports as “political” or
“ideological.” See generally 113 F.4th 1101. My colleagues
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 105

appear to admit as much, Maj. Op. at 32 n.12, and they fail

to explain why they believe opinions about what harms
children, which the DPIA report requirement compelled,
amounted to political or ideological messages, whereas
opinions about drug pricing in this case do not. 17 See id. at
34.
Therefore, the majority’s new framework conflicts with
the Ninth Circuit’s binding precedents.
B.
The majority instead resorts to two cases from other
Circuits, both predating our decisions in X Corp. and
NetChoice: Full Value Advisors, LLC v. S.E.C., 633 F.3d
1101 (D.C. Cir. 2011), and United States v. Sindel, 53 F.3d
874 (8th Cir. 1995). See Maj. Op. at 21–22. Neither of these
cases is binding upon us; nor are they persuasive. I discuss
them in turn.
In Full Value Advisors, Full Value Advisors, LLC, an
institutional investment manager, challenged one of the
Securities Exchange Act’s disclosure requirements because
it allegedly compelled speech in violation of the First

17
My colleagues note that “the NetChoice panel made quite clear that it
viewed the DPIA reporting requirement as ‘requir[ing] businesses to go
beyond opining about their products or services to opine on highly
controversial issues of public concern.’” Maj. Op. at 32 n.12 (quoting
NetChoice, 113 F.3d at 1120). Obviously, a controversial issue of public
concern is not necessarily a political or ideological issue, so this quote
from NetChoice does not support the majority’s new legal framework.
More importantly, the NetChoice panel made the relevant statement
when it explained why the DPIA report requirement did not simply refer
to a particular product under the second Bolger factor. NetChoice, 113
F.3d at 1120. Thus, this quote highlights the fact that NetChoice did not
apply or approve my colleagues’ novel framework. Quite the opposite,
the NetChoice panel performed the traditional Bolger analysis.
106 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

Amendment. 633 F.3d at 1104. Specifically, Section

13(f)(1) of the Act required institutional investment
managers to file quarterly reports with the SEC, disclosing
the names, shares, and fair market values of the securities
that the managers controlled (“Quarterly Reporting
Requirement”). Id. (citing 15 U.S.C. § 78m(f)(1) and 17
C.F.R. § 240.13f-1(a)(1)). The SEC was required to publish
this reported information unless an exemption applied. Id.
1104–05 (citing 15 U.S.C. § 78m(f)(2), (f)(3)). To request
an exemption, an investment manager had to “submit
enough information” to the SEC for it to “make an informed
judgment as to the merits of the request” (“Exemption
Application Requirement”). Id. at 1105.
The D.C. Circuit held that the Exemption Application
Requirement did not violate the First Amendment. 18 Id. at
1109. Observing that the SEC, “not the public,” was the
“only audience” of investment managers’ exemption
applications, the court reasoned that “[c]ompelling
disclosure to the [SEC] alone so the [SEC] may determine
whether [an exemption is] warranted is a rational means of
achieving” the goal of protecting institutional investors’
confidential information. Id. at 1108.
Full Value Advisors stands for the unremarkable
proposition that a party seeking relief before an adjudicator
must offer—if needed, on a confidential basis—sufficient
evidence to convince the adjudicator, “as in the case of
compulsion to give evidence in court.” W. Virginia State Bd.
of Educ. v. Barnette, 319 U.S. 624, 645 (1943) (Murphy, J.,
concurring). This proposition has little relevance to this

18
The D.C. Circuit did not opine as to whether the Quarterly Reporting
Requirement violated the First Amendment, since Full Value Advisors’s
First Amendment claim in that regard was unripe. Id. at 1106–07.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 107

case, which does not involve the compelled production of

evidence in an adjudicatory setting.
In any event, the D.C. Circuit cabined its holding in Full
Value Advisors to the context of confidential submissions for
securities regulation. See 633 F.3d at 1109. As Justice
Breyer once opined, securities regulation “involves ‘a
different balance of concerns’ and ‘calls for different
applications of First Amendment principles.’” Id. (quoting
Nike, Inc. v. Kasky, 539 U.S. 654, 678 (2003) (Breyer, J.,
dissenting from the dismissal of certiorari as improvidently
granted)). This call for different applications of First
Amendment principles undergirded the D.C. Circuit’s
opinion in Full Value Advisors but is inapplicable in this
case. Therefore, Full Value Advisors cannot lend support to
the majority’s new framework.
Let’s then turn to Sindel, another case on which the
majority relies. In Sindel, the government sued attorney
Richard Sindel to enforce an IRS summons that requested
missing information from the IRS Form 8300 that Sindel
filed to report certain cash transactions relating to his legal
services. 53 F.3d at 875–76. The government argued that
Sindel, pursuant to the instructions in IRS Form 8300,
should have provided identifying information regarding the
payors of the underlying cash transactions. Id. The Eighth
Circuit held that “the First Amendment protection against
compelled speech d[id] not prevent [the] enforcement of the
summons.” Id. at 878. The court reasoned that “[t]here is
no right to refrain from speaking when ‘essential operations
of government may require it for the preservation of an
orderly society[]—as in the case of compulsion to give
evidence in court.’” Id. (quoting Barnette, 319 U.S. at 645
(Murphy, J., concurring)). Because the IRS summons in that
case required “Sindel only to provide the government with
108 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

information which his clients ha[d] given him voluntarily,

not to disseminate publicly a message with which he
disagree[d],” the Eighth Circuit held that the summons
compelled neither Sindel’s nor his client’s speech. Id. at
877–78.
Assuming Sindel was correctly decided, it is
distinguishable. Compelling drug manufacturers to disclose
their internal pricing strategies is in no way analogous to
requiring citizens to provide the government with certain
basic transaction information to facilitate the essential
governmental operations of tax collection and illegality
detection. The majority does not attempt to (and could not
reasonably) argue that learning and publishing drug
manufacturers’ detailed pricing strategies constitute the
“essential operations” of the Oregon government “for the
preservation of an orderly society.” Id. at 878.
To the extent Sindel seems to suggest that a speech
compulsion claim under the First Amendment may arise
only where the government forces a person to “disseminate
publicly a message with which he disagrees,” this suggestion
conflicts with the law in our Circuit. Id. In X Corp., AB 587
asked what constituted hate speech, in social media
companies’ views, but AB 587 did not impose any hate
speech definition of its own. 116 F.4th at 896–97. In
NetChoice, the DPIA report requirement urged online
businesses to ascertain whether their operations could harm
children, but the DPIA report requirement itself did not
define what should be deemed harmful to children. 113
F.4th at 1109–10. Both AB 587 and the DPIA report
requirement were transparency measures. In neither case did
the challenged law ask any person to disseminate any views
with which he disagreed. And yet, in both cases, strict
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 109

scrutiny applied. Thus, Sindel is not persuasive in our

Circuit.
Therefore, neither Full Value Advisors nor Sindel is
applicable here. Nor did they espouse the analytical
framework that the majority now advocates. 19
C.
The majority also posits that two Supreme Court cases
are, if not in direct support, at least not inconsistent with its
new framework: Village of Schaumburg v. Citizens for a
Better Environment, 444 U.S. 620 (1980), and Riley, 487
U.S. 781. See Maj. Op. at 24–27. As both cases are
distinguishable for the same reason, I discuss them together.
In Schaumburg, Citizens for a Better Environment
(“CBE”), a nonprofit organization, “requested permission to
solicit contributions in the Village” of Schaumburg. 444

19
The majority also relies on Pharmaceutical Care Management
Association v. Rowe, 429 F.3d 294 (1st Cir. 2005), a case involving a
direct disclosure requirement, not a government reporting requirement.
Maj. Op. at 22–24. At issue in Rowe was Maine’s Unfair Prescription
Drug Practices Act (“UPDPA”) that regulated pharmacy benefit
managers (“PBM”). 429 F.3d at 298. The UPDPA required the PBMs
to act as fiduciaries for their health benefit provider clients in Maine and,
accordingly, adhere to certain fiduciary duties including disclosing to the
clients their conflicts of interest, self-dealing, and financial arrangements
with third parties. Id. at 299. “None of the disclosures [were] available
to the public.” Id. Pharmaceutical Care Management Association
(“PCMA”) alleged that the UPDPA’s disclosure requirement violated
the First Amendment, but the First Circuit disagreed. Id. at 316
(controlling concurrence). Contrary to the majority’s new framework,
Rowe did not distinguish government reporting requirements from direct
disclosure requirements. Id. And unlike HB 4005 here, the UPDPA
simply imposed a fiduciary duty upon the PBMs in certain contractual
setup, and the resulting factual disclosure requirement was just a
derivative to such a fiduciary duty. See id. at 299.
110 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

U.S. at 624–25. The Village denied CBE’s request because

CBE could not demonstrate it would use 75% of received
contributions for charitable purposes as required by the
Schaumburg Village Code. Id. at 625. CBE thus sued the
Village, claiming that the 75% requirement violated the First
Amendment. Id. The Supreme Court agreed, holding that
this 75% requirement did not withstand strict scrutiny. Id. at
636.
My colleagues recognize that Schaumburg concerned
the curtailment of charitable solicitation speech—a type of
speech that is fully protected by strict First Amendment
scrutiny—not any compelled disclosures of charitable usage
percentages. See Maj. Op. at 24. To find support for their
framework, however, my colleagues seize on the following
language from the Supreme Court’s discussion of why the
75% requirement was not narrowly tailored under strict
scrutiny:

The Village’s legitimate interest in

preventing fraud can be better served by
measures less intrusive than a direct
prohibition on solicitation. . . . Efforts to
promote disclosure of the finances of
charitable organizations [] may assist in
preventing fraud by informing the public of
the ways in which their contributions will be
employed.

444 U.S. at 637–38.

Riley was also about percentages of charitable usage.
487 U.S. at 795. At issue there was the North Carolina
Charitable Solicitations Act’s requirement that “professional
fundraisers disclose to potential donors, before an appeal for
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 111

funds, the percentage of charitable contributions collected

during the previous 12 months that were actually turned over
to charity.” Id. Assuming, without deciding, that the
charitable usage disclosure compelled by the Act constituted
commercial speech, the Supreme Court held that the timing
of this disclosure, which had to be made before a
fundraiser’s solicitation for funds, rendered it “inextricably
intertwined with otherwise fully protected speech,” i.e.,
charitable solicitation. Id. at 796. Strict scrutiny thus
applied. Id. at 798.
Reading Riley, my colleagues again focus on the
Supreme Court’s discussion as to why this charitable usage
disclosure requirement was not narrowly tailored:

[M]ore benign and narrowly tailored options

are available. For example, as a general rule,
the State may itself publish the detailed
financial disclosure forms it requires
professional fundraisers to file. This
procedure would communicate the desired
information to the public without burdening
a speaker with unwanted speech during the
course of a solicitation.

Id. at 800.
According to my colleagues, Schaumburg and Riley
suggest that the Supreme Court would agree with their new
framework, which treats government reporting requirements
and direct disclosure requirements differently and abandons
the commercial speech doctrine in cases involving
government reporting requirements. Maj. Op. at 24–27. In
my view, this interpretation of Schaumburg and Riley is
unconvincing because it depends on the false premise that
112 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

the charitable usage disclosures hypothesized in

Schaumburg and Riley constituted non-commercial speech
that would warrant strict scrutiny if compelled by direct
reporting requirements.
But the information regarding the percentages of
donations that are used for charity constitutes commercial
speech, for it communicates the prices—a quintessential
transaction term—that nonprofit organizations charge for
their services managing and dispensing donations.
Disclosing how much of the received donations that a
nonprofit organization passes on to intended charities tells
the public the amount of donations that the nonprofit
organization retains for itself; that is, the price of its services.
It is analogous to the commission fees that people pay for
brokerage services in the securities transaction context.
Those commissions fees are distinct from the value of the
securities that brokers help people transact, and disclosing
those commission fees simply communicates the prices of
the brokerage services. Understood as such, the Supreme
Court in Schaumburg and Riley suggested only that the
government could require charitable organizations to display
the price tags of their services more prominently. By
contrast, HB 4005’s Pricing Strategy Disclosure
Requirement does not merely require drug manufacturers to
broadcast their price increases. Rather, it forces a full
disclosure of drug manufacturers’ pricing strategies, i.e., the
“opinions about and reasons for” their drug prices. X Corp.,
116 F.4th at 901. Schaumburg and Riley cannot rescue HB
4005’s Pricing Strategy Disclosure Requirement from strict
scrutiny.
 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI 113

IV.
We have never applied anything other than strict scrutiny
to the kind of speech that HB 4005’s Pricing Strategy
Disclosure Requirement compels. As the Supreme Court
has cautioned, we must be “reluctant to mark off new
categories of speech for diminished constitutional
protection.” Nat’l Inst. of Fam. & Life Advocs., 585 U.S. at
767 (citation omitted).
In this case, my colleagues break new ground because
society has an “interest in the fullest possible dissemination
of information.” Maj. Op. at 41 (citation omitted). The
governmental power countenanced by this reasoning “has no
clear limiting principle.” United States v. Alvarez, 567 U.S.
709, 723 (2012) (Kennedy, J.) (plurality opinion) (“Our
constitutional tradition stands against the idea that we need
Oceania’s Ministry of Truth.” (citing G. Orwell, Nineteen
Eighty-Four (1949) (Centennial ed. 2003))). I am not
prepared to countenance a government that can compel an
unwilling speaker to speak simply because the government
and some others, for their own economic or political
interests, would like to hear.
My colleagues also suggest that we subject government
reporting requirements to a more lenient level of First
Amendment scrutiny than we do for direct disclosure
requirements. See Maj. Op. at 16–20. I fear this suggestion
would encourage the government to circumvent strict First
Amendment scrutiny by converting various kinds of existing
and prospective direct disclosure requirements to
government reporting requirements. I am not prepared to
condone such a loophole either.
Following X Corp. and NetChoice, we must subject HB
4005’s Pricing Strategy Disclosure Requirement to strict
114 PHARM. RESEARCH & MFRS. OF AM. V. STOLFI

scrutiny because it compels drug manufacturers to engage in

non-commercial speech on an intensely debated and
politically fraught topic: prescription drug prices. Oregon
does not claim HB 4005’s Pricing Strategy Disclosure
Requirement survives strict scrutiny. Therefore, I dissent
from the majority’s disposition of PhRMA’s First
Amendment claim.