SAN FRANCISCO (CN) – Soda companies will probably be forced to pull their ads in San Francisco if the city forces them to include warning labels, an attorney for the American Beverage Association told a three-judge Ninth Circuit panel Monday.
The label, expected to take the form of a big black box covering 20 percent of ad space, would apply to ads on city billboards, buses, transit shelters, posters and stadiums. In capital letters, it will state: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay.”
ABA attorney Richard Bress called the warning unduly burdensome.
“What size of a warning would not be unduly burdensome?” Circuit Judge Dorothy Wright Nelson asked.
Bress said that would be hard to define, but of the city’s requirement he said: “There’s no doubt that it is interfering with the speech we are trying to get out.”
The association and two other trade groups sued the city in July 2015, claiming its soda ordinance unconstitutionally chills free speech.
“The government has introduced no evidence that speech wouldn’t be chilled,” Bress told the panel Monday, adding that the industry’s expert has said soda companies will shift their advertising away from city billboards.
Bress also said the city shouldn’t require soda makers to promulgate false speech, and that the warning label is actually misleading.
“One of the problem we’ve got here as well is that the warning is misleading by omission,” he said. “The warning just says drinking sugar-sweetened beverages contributes to obesity and diabetes. The problem is that is not true unless your overall caloric intake is more than your caloric expenditure.”
He said the label doesn’t account for other contributors, like junk food and sweets.
“For most San Franciscans who drink sugar-sweetened beverages, the warning is actually false,” Bress said. “It is telling consumers that beverages with added sugar are bad for you and that’s sending the message that beverages with natural sugars are good for you.”
Circuit Judge Sandra Ikuta asked Deputy City Attorney Christine Van Aken to address that point.
“There is the unspoken reasonable inference that if beverages are targeted, other things are not as dangerous. Can you address why it’s not misleading?” Ikuta asked.
“The reason the city has started with sugary beverage is that there’s wide consensus that this a contributor to the obesity epidemic,” Van Aken said.
She noted that a single 20-ounce serving of soda contains 16 teaspoons of added sugar, and that unlike other food and drink, sodas are often consumed at every meal and are marketed as a way to quench thirst.
“There is no other product that is marketed in the same way,” she said.
Sitting by designation, Chief U.S. District Judge Michael Seabright of Hawaii asked Van Aken why the city had singled out sodas since other unhealthy foods also contain calories well beyond the healthy limit.
“I think I can eat enough ice cream to take me over,” he said.
“Most people don’t have a bowl of ice cream with every meal but that’s the way sodas are marketed,” Van Aken replied. “Because people consume them as if they are water, the city has targeted them.”
Seabright proposed a comparison between foreign and American automakers. What if all foreign automakers are required to include a warning on their SUV ads saying they are more likely to roll over, but American manufacturers aren’t subjected to the same rule, he asked.
“I think that would be unconstitutional since there’s no rational basis for singling out those products, but there is a rational basis for singling out sugary beverages,” Van Aken said. “People are correct in being uniquely concerned about sodas because they are the single largest source of added sugar in the American diet.”
In May 2016, U.S. District Judge Edward Chen denied the industry’s motion to block the ordinance with a preliminary injunction, but walked back his ruling pending the outcome of Monday’s hearing.
The panel did not indicate how or when it would rule.