New loss for gunmaker in fight against state probe of its marketing practices

A New Jersey appellate panel on Thursday upheld a lower court order for Smith & Wesson to comply with a New Jersey Attorney General’s Office subpoena seeking records about the gun manufacturer’s marketing practices.

Former Attorney General Gurbir Grewal first subpoenaed records relating to Smith & Wesson’s advertisements in October 2020 to determine if the company violated the state’s Consumer Fraud Act in its claims about firearm safety, state gun regulations, and related messaging.

Smith & Wesson fought the subpoena as a violation of its constitutional rights in state and federal filings. Company attorneys argued that state officials intended to deprive New Jersey residents of their Second Amendment right to bear arms. They also defended their advertisements as “commercial speech” protected by the First Amendment.

But state Judge Jodi Lee Alper in June 2021 rejected the company’s arguments, and federal Judge Evelyn Padin last month tossed their federal lawsuit based on the state ruling.

Thursday, state Superior Court Judge Morris G. Smith sided with Alper, who ordered Smith & Wesson to produce the documents.

“The subpoena, a primary investigative tool identified by the Legislature to assist the attorney general with investigations into potential CFA violations, is valid,” Smith wrote. “Its subject matter is clear, and the information sought by plaintiffs is spelled out in a manner that is sufficiently well-defined.”

A Smith & Wesson spokesman didn’t respond to a request for comment.

The company already has complied with the subpoena, but the documents were released under a protective order that would require their return should the subpoena eventually be declared unlawful.