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.
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