In a case that may have implications for chemical warning laws, a federal court in New York found a town’s efforts to require warning labels on pesticide-treated utility poles compelled non-commercial speech and infringed on a utility company’s First Amendment rights.  See PSEG Long Island LLC v. Town of N. Hempstead, 15-cv-00222 (E.D.N.Y. February 3, 2016).  The Town of North Hempstead ordinance required the local electric utility to place placards on new utility poles to warn the public that the poles contain “hazardous chemicals.”  Town officials imposed the requirement after expressing concern that pentachlorophenol and copper chromium arsenate, used to prevent insect damage and fungal decay, posed a threat to human health and the environment.

The utility company challenged the ordinance on First Amendment grounds, among others.  It argued that the warnings were non-commercial speech and therefore the requirement to post the warning signs was subject to strict scrutiny, valid only if narrowly tailored to a compelling government interest.  The Court agreed.  The Court found that, even if the risk of public exposure to chemically treated wood utility poles constitutes a compelling interest, the Town could have chosen less prescriptive means of communicating with the public.  Finding the labeling requirement therefore failed the strict scrutiny test, the Court permanently enjoined the Town from enforcing the ordinance.