Court says San Francisco’s soda pop warnings unconstitutional

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Sweetened beverage advertisers in San Francisco won’t be forced to add an obesity warning to their labels and advertisements. A federal appellate court has ruled the warning mandate violates the U.S. Constitution.

The City and County of San Francisco enacted the local law two years ago, requiring advertisers of certain sugar-sweetened beverages to include this statement on their labels:

“WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This message from the City and County of San Francisco.”

The American Beverage Association, California Retailers Association, and the California State Outdoor Advertising Association sued the local government. They were not able to get a federal judge to issue a preliminary injunction to block implementation of the ordinance. However,on Sept. 19 they did get a three-judge appellate panel to agree with them.

In a 30-page ruling by the U.S. Court of Appeals for the 9th Circuit, the judges said the “black box” warning overwhelms other visual elements of an ad and therefore unduly burdens and chills protected speech.

The appellate decision said it was enjoining the ordinance because the advertisers are “likely to 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.’ ”

Further, the appellate judges said the district court “abused its discretion” in denying the preliminary injunction. The three-judge appellate panel reversed the district court’s ruling.

Advertisements for soda pop and other non-alcoholic beverages were the targets of the San Francisco law. It required 20 percent of the products’ advertising space be used for the warning, which had to be set off by a bold rectangular border. Its purpose was to “inform the public” about added sugars and persuade “informed consumers” to reduce their caloric intake.

Ads for any beverage with more than 25 calories in 12 ounces, including sports drinks, fell under the mandate. San Francisco’s original plan was to impose the requirements last summer, but implementation was held up by the court challenge.

In addition to finding that commercial speech protections include not being able to force advertisers to carry just any government message, the panel also found San Francisco’s message potentially misleading because it would not apply to moderate beverage drinkers.

Attorneys for San Francisco said they are reviewing their options. The American Beverage Association said the appellate court “affirms our position that the San Francisco warning mandate not only violates the constitutional right to free speech but it is also deceptive and misleading to consumers.”

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