The National Association of Manufactures, the Chamber of Commerce of the United States of America and the Business Roundtable have filed their supplemental brief in the conflict minerals rehearing.  NAM et al ask the court to  amend its opinion to clarify that the SEC’s conflict minerals rule is not a “purely factual and uncontroversial” disclosure requirement within the meaning of Zauderer.

NAM believes a compelled statement of whether products are “DRC conflict free” is not purely factual and uncontroversial for at least three reasons:

• The compelled statement is not factual in nature, but rather constitutes an ideological judgment that companies who cannot confirm where the minerals in their products originated bear some “moral responsibility for the Congo war.”
• The compelled statement is both non-factual and controversial because it is highly misleading, susceptible to interpretations that are not factually accurate. In many cases, issuers forced to make the compelled statement will have no connection to the region at all, but will be simply unable to identify the source of their minerals due to the length and complexity of their supply chains, making their compelled association with the armed conflict misleading and inaccurate.
• The compelled statement is both non-factual and controversial because it is highly misleading, susceptible to interpretations that are not factually accurate. In many cases, issuers forced to make the compelled statement will have no connection to the region at all, but will be simply unable to identify the source of their minerals due to the length and complexity of their supply chains, making their compelled association with the armed conflict misleading and inaccurate.

NAM distinguishes itself from the opposing briefs filed for the rehearing by noting the briefs fail to confront the foregoing issues. According to NAM, the opposing briefs  focus on the required factual descriptions of the scope and results of due diligence investigations—which NAM’s constitutional claim never challenged—rather than on the mandate that companies then add the non-factual and highly controversial statement that those facts mean a product is not “conflict free.” According to NAM that mandate that is unconstitutional. The First Amendment bars laws that require private speakers to parrot the government’s chosen vocabulary and contested characterization of a policy issue.