A federal appeals panel has blocked a San Francisco law requiring the beverage industry to post health warnings on advertisements for soda and other sugar-sweetened drinks. In a unanimous ruling, the 9th U.S. Circuit Court of Appeals ruled that the law, approved by San Francisco voters in June 2015, is an unconstitutional infringement on commercial speech.
The ruling by an 11-member, or en banc, panel of the appellate court is a major victory for the beverage industry, retail groups and advertisers who had opposed the local ordinance.
The warnings, placed on any advertisement, said, “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 law also called for the warning to occupy at least 20 percent of the ad space and be set off with a rectangular border.
The city’s “goal of reducing obesity is laudable,” wrote Judge Jacqueline H. Nguyen, but the judges agreed that the law “might offend the First Amendment by chilling protected commercial speech.”
They wrote that the city’s argument for the need for the warnings’ size and border was “unpersuasive,” concluding “the 20% requirement is not justified when balanced against its likely burden on protected speech.”
“This decision is solely about the size of the warning label,” said Andrea Guzman, a spokesperson for San Francisco City Attorney Dennis Herrera. “The court found that 20 percent is too large but suggested 10 percent would be sufficient. We’re evaluating our next steps in light of this decision. But make no mistake: we’re committed to protecting the health of San Francisco residents by allowing them to get factual information.”
One health advocacy group said that it was “disappointed that consumers will not benefit from the sensible warnings proposed by San Francisco.”
“We hope that cities, counties, and state legislatures continue to enact a wide range of policies to combat soda-related disease, said the Center for Science in the Public Interest in a statement. “Taxes on sugary drinks were shown in Berkeley, Philadelphia, and Mexico to reduce consumption of these beverages.”