A city and county of San Francisco law requiring a health warning in advertisements for sweetened beverages probably violates the First Amendment, the Ninth Circuit Court of Appeals ruled Thursday.
The court said the district court erred in 2016 when it did not issue an injunction against the 2015 ordinance, which has not gone into effect during the litigation over it.
The plaintiffs — the American Beverage Association, California Retailers Association, and California State Outdoor Advertising Association — “will likely succeed on the merits of their claim that the ordinance is an ‘unjustified or unduly burdensome disclosure requirement (that) might offend the First Amendment by chilling protected commercial speech,’” the court said in a unanimous decision of 11 of the court’s judges.
A three-judge panel had come to the same conclusion in September 2017; in January 2018 the court decided to rehear the case.
The ordinance requires the health warning take up at least 20 percent of the size of advertisements for sugar-sweetened beverages, such as those on the sides of buses, at stadiums, or on billboards.
But the court said “the record here shows that a smaller warning — half the size — would accomplish (the city and county’s) stated goals.”
If the city and county were looking for guidance from the court on how much space the warning could occupy, they didn’t get it.
“To be clear, we do not hold that a warning occupying 10 percent of product labels or advertisements necessarily is valid, nor do we hold that a warning occupying more than 10 percent of product labels or advertisements necessarily is invalid,” the court said. “Rather, we hold only that, on this record, (the city and county have) not carried (their) burden to demonstrate that the ordinance’s requirement is not ‘unjustified or unduly burdensome.’”
The court said it did not have to decide whether the warning “is factually accurate and noncontroversial.”
The warning says: “Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”
The Center for Science in the Public Interest, which had filed a brief supporting the city and county, criticized the decision. In a statement, CSPI Policy Director Laura MacCleery said the group was “disappointed that consumers will not benefit from the sensible warnings proposed by San Francisco.”
“We hope that cities, counties, and state legislatures continue to enact a wide range of policies to combat soda-related disease,” MacCleery said. “Taxes on sugary drinks were shown in Berkeley, Philadelphia, and Mexico to reduce consumption of these beverages.”
"We're evaluating next steps," said John Cote, a spokesman for the city and county. The court, he said, "suggested 10 percent (of the ad size) would be sufficient" for the size of the warning.
The American Beverage Association said in a statement it was happy with the ruling, "which affirms there are more appropriate ways to help people manage their overall sugar consumption than through mandatory and misleading messages." Nearly half of the beverages sold by the industry "contain no calories and ... we’ve put clear calorie information on the front of every bottle, can and package we sell to encourage consumers to check calories before they buy," ABA said. The group said it would "welcome the City of San Francisco to work with us constructively" on helping people make informed decisions about their diets.
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