In 2015, San Francisco passed an ordinance that requires soda adverts to include a warning that beverages with added sugars ‘contributes to obesity, diabetes and tooth decay’.
Last year a district court denied the plaintiffs’ (the American Beverage Association, California Retailers Association and California State Outdoor Advertising Association) motion for a preliminary injunction.
However, judges in the 9th US Circuit Court of Appeals yesterday said San Francisco’s ordinance unfairly targets one group of products; adding the plaintiffs were likely to succeed with their claim that the ordinance violated commercial speech under the First Amendment.
It therefore prevents the ordinance from going into effect until a lawsuit filed by the plaintiffs is resolved.
Warning labels ‘likely violate the First Amendment’
In June 2015, San Francisco passed an ordinance for mandatory warning labels on soda advertisements, which must read: “WARNING: 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.”
Responding to the introduction of the mandatory warnings, the American Beverage Association had said that this meant private speakers were forced to recite the City’s value judgement.
In the court of appeal’s ruling yesterday, the opinion from Circuit Judge Sandra S. Ikuta said that the warning that drinking beverages with added sugars ‘contributes to obesity, diabetes and tooth decay’ implied that sugar sweetened beverages contribute to these health conditions regardless of the quantity consumed or other lifestyle choices.
“This is contrary to statements by the FDA that added sugars are ‘generally recognized as safe’ and ‘can be a part of a healthy dietary pattern when not consumed in excess amounts,’” she said.
Judge Ikuta also agreed with the plaintiffs that SSBs had been singled out.
“The warning is required exclusively on advertisements for sugar sweetened beverages, and not on advertisements for other products with equal or greater amounts of added sugars and calories. By focusing on a single product, the warning conveys the message that sugar-sweetened beverages are less healthy than other sources of added sugars and calories and are more likely to contribute to obesity, diabetes, and tooth decay than other foods.”
Judge Dorothy W. Nelson concurred in the judgment because she believed that the ordinance, in its current form, likely violated the First Amendment “by mandating a warning requirement so large that it would probably chill protected commercial speech.”