SAN FRANCISCO (CN) – An expanded panel of Ninth Circuit judges on Tuesday reconsidered whether a San Francisco law requiring warning labels on billboard ads for soda passes constitutional muster, with the soda industry arguing that singling out sodas and other sugary drinks as the main contributor to health problems sends a misleading message to consumers.
“Obesity and related conditions are serious health problems. The city is entitled to have and share its view that drinking beverages with added sugar contributes to these conditions more so than consuming equivalent calories from other foods and beverages,” said industry attorney Richard Bress. “What the city can’t do, consistent with the First Amendment, is force us to convey its controversial view and that’s exactly what the city is doing here with this warning, by singling out advertisements for beverages with added sugar.”
A year ago, a three-judge Ninth Circuit panel ruled in favor of the American Beverage Association, the California Retailers Association and the California State Outdoor Advertising Association, finding San Francisco’s 2015 ordinance requiring warning labels on outdoor soda ads “unduly burdened and chilled protected speech.”
The ordinance would have required a black-box warning label saying: “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.” The label would have to cover at least 20 percent of the ad space.
U.S. Circuit Judge Susan Graber questioned why it matters whether soda is being singled out it does contribute to health conditions like obesity.
“If you have a dangerous ladder the answer isn’t to say ‘hammers are dangerous too,’ it’s a question of is the health warning accurate as to this product. There is nothing that suggests it’s more or different, just that it is,” she said.
Bress said it matters if consumers see the warnings and believe sodas are as dangerous to their health as cigarettes, when pretty much anything a person eats or drinks that contains calories and sugar can contribute to obesity and diabetes if consumed to excess.
“How do we know what the consumer’s view is?” asked U.S. Circuit Judge Marsha Berzon. “My intuition is the consumer will understand that this a generic public health statement, that in an aggregate sense drinking a fair amount of this can cause a problem.”
Bress said, “There are statements that are intrinsically misleading. Ultimately the burden to demonstrate that this warning is purely factual and non-controversial is on the city.”
He added, “The city is trying to address a more complex problem here, which is overconsumption of calories in society, and yes, the part these products play in that overconsumption. I don’t think that you can address that in a constitutional way by requiring warnings on only one product. Inevitably, you are going to be sending misleading messages by doing that.”
The U.S. Supreme Court’s decision this year to strike down a California law requiring faith-based pregnancy clinics to advertise information about abortions has added a new wrinkle to state-mandated commercial speech.
The high court found the law challenged in National Institute for Life Advocates v. Becerra to be unduly burdensome. It also upheld the preeminent standard of review for commercial speech under Zauderer v. Office of Disciplinary Counsel of Supreme Court, which mandates that required disclosures be purely factual and noncontroversial. The court said the mandated disclosure in the California law was controversial since it referred to abortion.
The 11-judge Ninth Circuit panel seemed to consider the soda warning case in light of that ruling, grilling Deputy City Attorney Jeremy Goldman on the warning’s accuracy.
Goldman said it would be an “unreasonable inference” for every single person to see the warning and assume they will become obese and get diabetes just from drinking soda. U.S. Circuit Judge Morgan Christen asked Goldman why.
“If the Supreme Court said it has to be purely factual and your warning doesn’t say ‘can contribute,’ it says ‘contributes to,’ why is their position unreasonable?” Christen asked.
Goldman noted cigarettes are known to cause cancer, but not every person who smokes cigarettes gets cancer.
“Here’s the tension for me,” Christen said. “On one hand it seems a reasonable person looking at this warning would understand this warning to be on an epidemiological, community-wide basis. But there is indication in the record that part of the problem with public health warnings is that the public has a low level of health literacy.”
Chief Circuit Judge Sidney Thomas also questioned the notice’s accuracy.
“I don’t think anyone disputes that Type 1 diabetes is not affected by added sugar consumption. Yet your notice blends all of them together. Why isn’t that inaccurate?”
Goldman answered, “It’s hard to see that that inaccuracy matters to anyone, that it’s a concern for anyone.”
Thomas pushed back, saying a danger warning on sugary drinks could deter someone with Type 1 diabetes from ingesting something that could be lifesaving.
“I think if you knew more about the Type 1 and Type 2 diabetic community, you would know that for Type 1 diabetics, the implication that their disease is caused by sugar is really a problem for them. So you are requiring the dissemination of misleading information,” Thomas said. “If your information is inaccurate, you’ve failed the test.”
Berzon said, “What bothers me the most is we’re speculating about how someone would understand this warning.”
Goldman acknowledged this is a problem, but said it shouldn’t be the reason for striking down the law.
“I don’t think you’ll get away from the problem that different people can understand it in different ways,” Goldman said. “That is always going to be the case of any warning message. That’s why the primary inquiry has to be a textual one.”
As for whether the ordinance is a burden for business, U.S. Circuit Judge Andrew Hurwitz asked Goldman to justify the size of the label, which was designed to be the same size as tobacco warnings.
“I’m looking at the exhibit, and it sure looks burdensome. It takes over a lot of the adverting space,” Hurwitz said.
Goldman said it has nothing to do with the product itself, but the necessary size to convey the warning.
“Congress came to the conclusion that smaller warnings are too easily overlooked,” he said.
Hurwitz wondered whether cigarettes and soda are on equal footing in the danger department.
“Is there a difference with respect to the seriousness, and the immediacy and the scientific proof of the problem. Can all warnings be the same size as the tobacco warnings?” he asked.
“It just has to do with information processing,” Goldman replied. “What is necessary to convey health information to the public.”
Hurwitz asked, “So it cannot be unduly burdensome in your view, if the evidence shows that’s what is required to convey the information?” Goldman agreed.
“Otherwise you’d be saying the government is justified in requiring a warning, but it cannot actually require a warning that people notice. That would accomplish nothing,” he said. “So once you say the government can justifiably require a warning, it seems to me that you have to accept it’s not an undue burden if the warning has to appear in a form that the message is actually conveyed to people. Not greater than is necessary, but if there is an evidence- based determination that this is the size that is necessary to convey that information. But I do think it’s not an undue burden.”
Bress challenged that on rebuttal.
“The Supreme Court said the standard is ‘no broader than is reasonably necessary.’ There is no evidence in this case that the city actually took that approach,” he said. “There is no sense in the record that the city ever asked the question if something smaller would work.”
The judges took the case under submission.