Panel Opinion Puts Health Warnings at Risk

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The Public Health Law Center is pleased to announce that, on Friday, October 27, tobacco control and public health groups weighed in on a lawsuit challenging health warnings. In 2015, San Francisco enacted an ordinance requiring that signs advertising sugar-sweetened beverages (SSBs) include a label, covering 20 percent of the sign, that reads “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.”

This was the nation’s first ordinance requiring such warnings. Trade organizations representing soda companies and billboard advertising companies immediately challenged the ordinance, claiming the required warnings compel speech in violation of the First Amendment. On May 17, 2016, the District Court denied the beverage industry’s motion for a preliminary injunction, finding that the advertisers were unlikely to prevail on their First Amendment claims.

The American Beverage Association appealed, and on September 19, 2017, a three-judge panel of the Ninth Circuit Court of Appeals struck down San Francisco’s ordinance, holding that because the warnings were required to take up 20 percent of the space on any advertisement, they were “unduly burdensome” and “chill[ed] protected commercial speech” under the First Amendment. Two judges in the majority said the city's warning was misleading because it was required only on ads for sugar-sweetened beverages and not on ads for other products with equal or more added sugar.

These judges also found that the mandated warnings violated the First Amendment because they were not factually accurate; “Because San Francisco’s warning does not state that overconsumption of sugar-sweetened beverages contributes to obesity, diabetes, and tooth decay, or that consumption of sugar-sweetened beverages may contribute to obesity, diabetes, and tooth decay, the accuracy of the warning is in reasonable dispute.”

The panel opinion would jeopardize federal tobacco warnings, including existing and pending warnings for cigarettes, smokeless tobacco, and cigars. Indeed, the ink is barely dry, and the tobacco industry is already using the panel’s decision in this case to challenge federal government warnings on tobacco products.

This month, San Francisco petitioned for rehearing, and the American Cancer Society Cancer Action Network and the Public Health Law Center, joined by eight national tobacco control and public health groups, filed an amicus brief in support of San Francisco’s petition for rehearing, arguing that the panel opinion is misguided in its interpretation of the First Amendment's compelled speech doctrine. The following organizations joined the brief: Action on Smoking & Health, African American Tobacco Control Leadership Council, American Lung Association, American Thoracic Society, Americans for Nonsmokers' Rights, Campaign for Tobacco-Free Kids, NAATPN, and Truth Initiative Foundation. The amicus brief was written by Rachel Bloomekatz of Gupta Wessler. Public Health Law Center’s summary and analysis of this case can be found here.

 

October 30, 2017