A Washington federal judge has tossed a challenge to a state ban on the sale of "DIY" DNA collection kits to sexual assault survivors, rejecting a kit developer's arguments that the ban infringes on its First Amendment rights.

In his Monday order, U.S. District Judge David G. Estudillo found that Leda Health Corp. failed to show that Washington H.B. 1564, which bans the sale of "over-the-counter sexual assault kits," targeted the company's expression of ideas. The ruling comes after the state urged the court to dismiss Leda's suit challenging the statute, arguing that the ban is intended to prevent survivors from being tricked into thinking the kit results will hold up in court.

H.B. 1564 burdens "specific non-expressive conduct exemplified by plaintiff's business model," not Leda's expression of ideas, the judge said.

"Any person in Washington state remains free to disseminate as much accurate or misleading information about sexual assault kits as they would like to whomever they would like — so long as that individual does not sell or otherwise make available sexual assault kits that fall under the prohibition in the statute," the order said.

The ruling is a loss for Leda in its fight to sell "early evidence kits" that it claims enable survivors to self-collect sexual assault evidence and supplement existing options such as tests performed at a hospital or by police. The company has also sued the state attorneys general of New York and Pennsylvania over cease-and-desist letters they sent to Leda regarding the kits.

Under Washington's law, it is illegal to sell a "product with which evidence of sexual assault is collected" if the seller knows the product will be used by someone other than law enforcement or a healthcare provider for the collection of the evidence. The law also prohibits sexual assault kits from being marketed as "over-the-counter," "at-home" or "self-collected."

In its suit, Leda argued that the law infringes on its First Amendment rights because it prevents the company from "telling survivors of sexual assault that they can self-collect evidence and that there are alternatives to government sources." According to Leda's filings, fewer than 21% of survivors go to a hospital after a sexual assault.

But in August, Washington told the court that experts "overwhelmingly agreed" in testimony leading up to the passage of the law that over-the-counter sexual assault kits are "not competent and admissible evidence in criminal prosecutions." The state likened the statute to laws that ban the sale of harmful products like tobacco, saying it is meant to protect sexual assault survivors from the "evidentiary challenges" presented by kits like Leda's.

The judge's order granted Washington's bid to dismiss the suit, finding that Leda's stated intent of imparting information in the sale of its kits "does not transform the transaction into expressive content that implicates the First Amendment."

Alex Little of Litson PLLC, counsel for Leda, said Tuesday the company is "quite disappointed" in the ruling.

"We intend to appeal it and we expect to be successful," Little told Law360. "The district court entirely refused to engage with Leda's arguments, and its ruling, if carried to its logical conclusion, would allow the state of Washington to outlaw iPhones under the sexual assault kit statute."

Washington Attorney General Bob Ferguson, meanwhile, called the order a "legal victory for sexual assault survivors" in a Tuesday statement.

"By an overwhelming bipartisan vote, the Legislature adopted this state law that prevents companies from exploiting sexual assault survivors," Ferguson said. "Survivors should know that they are not alone — critical services to help them seek justice are available from trained medical professionals, at no cost."

Leda Health is represented by Jeffrey B. Coopersmith of Corr Cronin LLP and Alex Little, Zachary C. Lawson and John R. Glover of Litson PLLC.

The state is represented by Cristina Sepe, Tera M. Heintz and Lucy Wolf of the Washington State Office of the Attorney General.

The case is Leda Health Corp. v. Inslee et al., case number 2:24-cv-00871, in the U.S. District Court for the Western District of Washington.

--Additional reporting by Rachel Riley and Corey Rothauser. Editing by Linda Voorhis.