San Francisco sugary Drinks Warning Blocked

A federal appeals court has blocked a San Francisco law that would require health warnings on sugar-sweetened drinks while the beverage industry pursues free speech violation claims.

The 9th U.S. Circuit Court of Appeals held Tuesday that U.S.  District Judge Edward Chen should have issued a preliminary injunction against the 2015 ordinance that requires advertisers who post sugar-sweetened drink ads in San Francisco.

The American Beverage Association, the California Retailers Association and the state Outdoor Advertising Association argued the law was an unduly burdensome disclosure requirement in violation of the first amendment by chilling protected commercial speech.

The city ordinance requires advertisers to post a warning that drinking high sugar drinks contributes to obesity, diabetes, and tooth decay. The law applies to sodas and other non-alcoholic beverages of more than 25 calories for 12 fluid ounces.

The associations sued in 2015 and was denied an injunction in May 2016. They appealed the denial to the 9th Circuit.

Commercial speech, at issue here, is defined as expression related solely to  the economic interests off the speaker and its audience. It does enjoy some first amendment protections.

“We conclude that the factual accuracy of the warning is, at a minimum, controversial as that term is used,” wrote Judge Sandra Ikuta. The warning gives the unqualified statement that drinking the beverages contributes to obesity, diabetes, and tooth decay.

“This is contrary to statements by the FDA that added sugars are “generally recognized” as safe,” Ikutta said.

“We agree with the Associations that the warning requirement in this case unduly burdens and chills protected commercial speech,” she said.

The reversal prevents the law from being enforced until after a trial on this issues of the first amendment claim.

Ikuta was joined by Judges Dorothy Nelson and visiting judges Michael Seabright of thte Districctt of Hawaii.

Case: American Beverage Association v. City of San Francisco, No. 15-15072.


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