Ninth Circuit to Rehear Fight Over Soda Ad Warning Labels

SAN FRANCISCO (CN) – The Ninth Circuit will rehear en banc whether San Francisco can force soda companies to attach black-box warning labels to certain ads, according to an order issued by the court’s chief judge on Monday.

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 this past September, finding San Francisco’s 2015 ordinance requiring warning labels on outdoor soda ads “unduly burdened and chilled protected speech.”

The ordinance would have required 20 percent of an outdoor soda ad be outfitted with 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.”

According to the trade groups, the warning labels infringe their First Amendment rights. The Ninth Circuit panel agreed, finding that singling out sugary drinks is unfair and deters advertisers from purchasing ad space in whatever medium they chose.

San Francisco City Attorney Dennis Herrera is confident that the city will win this time.

“San Francisco’s law is on solid legal ground, and we welcome the opportunity to demonstrate that to the court. This is an important step forward for consumer protection,” Herrera said.

The American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association could not be reached for comment.

A date for the en banc rehearing has not been set.

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