San Francisco health warning on ads for sugary beverages ruled unconstitutional

A panel of 11 judges on Thursday reversed a previous court order that denied a request for a preliminary injunction against an ordinance in San Francisco requiring health warnings on advertisements for sugar-sweetened beverages.

The ordinance violated the First Amendment, argued the American Beverage Association (ABA), California Retailers Association and California State Outdoor Advertising Association.

The U.S. Court of Appeals for the Ninth Circuit agreed with the plaintiffs in a decision that bars the ordinance from taking effect.

“The required warnings … offend plaintiffs’ First Amendment rights by chilling protected speech,” Circuit Judge Susan P. Graber wrote in an opinion on behalf of the majority.

Enacted in June 2015, the ordinance required that certain advertisements for sugar-sweetened beverages include the following disclosure: “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.”

The health warning applied to ads in or on such things as billboards, buses, stadiums and walls, but it never actually took effect. Although a district court initially denied the plaintiffs' request for the preliminary injunction, it put on hold implementation of the ordinance pending an "interlocutory appeal."

Commenting on the requirement that the health warning occupy at least 20 percent of the advertisement, Graber described the mandate as “unduly burdensome when balanced against its likely burden on protected speech.”

The plaintiffs, the federal appeals court held, are likely to succeed on the merits of their First Amendment claim.

Some of the 11 judges dissented from the reasoning in the majority’s opinion, but they concurred with the result.

“We are pleased with this ruling, which affirms there are more appropriate ways to help people manage their overall sugar consumption than through mandatory and misleading messages," the ABA said in a statement. "America’s beverage companies already work with many public health officials and others across the country at various initiatives designed to help inform consumers, provide choice and improve public health."

Added the ABA: "That's why nearly half of the beverages our industry sells today contain no calories and why 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."

None of the other parties to the case immediately responded Thursday to requests for comment.

In its 2015 lawsuit seeking to overturn the ordinance, plaintiffs argued the required health warning conflicts with findings by USDA experts and health organizations. For instance, the lawsuit noted that the Academy of Nutrition & Dietetics has concluded in recommendations that “sugar-sweetened beverages—like countless other foods and beverages, including pizza, cookies, apple juice, hamburgers, ice cream, and burritos—may be consumed as part of a healthy diet and lifestyle."

In 2017, a three-judge panel of the Ninth Circuit reversed the district court’s decision. The appeals court questioned whether the health warning was factually accurate and said it was misleading.

“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,” Circuit Judge Sandra S. Ikuta observed in the 2017 opinion. “This message is deceptive in light of the current state of research on this issue.”

The controversy didn’t end there. The Ninth Circuit agreed to rehear the case “en banc,” with 11 judges weighing in—reflecting the significance of the dispute since most cases before the appeals court are resolved by a three-judge panel.

The Jan. 31 ruling is unlikely to end the national debate over the role of government in reducing consumption of foods and beverages potentially harmful to the public health.

“We hope that cities, counties and state legislatures continue to enact a wide range of policies to combat soda-related disease,” Laura MacCleery, policy director of the nonprofit Center for Science in the Public Interest, said in a statement.