Whether San Francisco's ordinance requiring a health warning on advertisements of sugar-sweetened beverages (SSBs) violates the First Amendment and the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
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, repeating its arguments that the government “cannot lawfully compel a private party to broadcast the government’s hostile and controversial opinions as the price for speaking”; that the warning is not uncontroversial because there is no scientific consensus about the effect of SSBs on obesity, diabetes or dental caries; and that a warning comprising 20 percent of an ad is an undue burden.
The Public Health Law Center joined two amicus briefs, led by the American Heart Association, filed in both the district court (Feb. 23, 2016) and the court of appeals (Sept. 21, 2016), on behalf of almost 30 national and California public health, equity, and medical organizations, opposing advertisers’ petition for a preliminary injunction. Our briefs demonstrated that the proposed warnings were uncontroversially true statements of fact, explaining the extensive scientific evidence supporting the warnings and the general acceptance of their content by the public health community. Our briefs also opposed the distorted approach to the First Amendment proposed by the soda industry and advertisers and their amici.
On September 19, 2017, the Ninth Circuit Court of Appeals struck down San Francisco’s ordinance requiring that advertisements for sugar-sweetened beverages carry prominent health warnings. All three judges on the panel held 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. The court attached examples of what a warning might look like and found that it “overwhelms other visual elements” in the advertisement and could deter advertisers from placing outdoor advertisements at all. 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.” In so finding, the judges relied on statements that, in their opinion, contradicted the science offered in our amicus brief. The judges also referenced the unsettled nature of the science surrounding the health effects of consuming sugary drinks.
On October 27, 2017, the Public Health Law Center, led by the American Cancer Society Cancer Action Network, filed a tobacco-focused amicus brief asking that the Ninth Circuit’s full Court of Appeals review the decision (en banc review) or that the panel revise its ruling to narrow its reasoning. Our brief, which was joined by nine other national tobacco control and public health organizations, focuses on how the panel's overbroad reading of the First Amendment’s compelled speech doctrine would jeopardize federal tobacco warnings, including existing and pending warnings for cigarettes, smokeless tobacco, and cigars – as well as other public health warnings. The amicus brief was written by Rachel Bloomekatz of Gupta Wessler.
The litigation is ongoing.