San Francisco’s Soda Ad Warning Clears Hurdle

     SAN FRANCISCO (CN) — The American Beverage Association can’t stop San Francisco from moving forward with an ordinance requiring a warning label on all outdoor ads for sugary drinks, a federal judge ruled.
     U.S. District Judge Edward Chen said the industry group was unlikely to succeed on its claims that the mandate has a chilling effect on free speech, and would likely not suffer irreparable harm from the requirement.
     “Even if plaintiffs had established serious questions going to the merits, balancing of hardships does not tip sharply in their favor,” he wrote in a ruling Tuesday.
     The ABA had asked Chen to bar the city from enforcing an ordinance that will require a warning label on all ads for sugar-sweetened beverages. The label, set to take effect on July 25, will apply to ads on city billboards, buses, transit shelters, posters and stadiums.
     It will state in letters filling 20 percent of the ad space: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay.”
     ABA attorney Richard Bress said, “I have no comment at this time.”
     In a statement, City Attorney Dennis Herrera said, “Judge Chen’s decision clears the way for us to start enforcing our ordinance in July. I’m gratified by a very strong ruling, which eviscerated plaintiffs’ arguments that common-sense warnings about the health risks associated with sugar-sweetened beverages — like obesity, diabetes and tooth decay — are somehow misleading. The truth is these sugary products cause many health problems.”
     In denying the ABA’s constitutional challenge, Chen relied on the legal framework from another ad-based case, Zauderer v. Office of Disciplinary Counsel of Supreme Court, where the U.S. Supreme Court held that commercial disclosure requirements are constitutional provided that they are reasonably related to the state’s interest.
     Chen said that under the Zauderer test, the city has a reasonable basis for requiring the disclosures and that the mandated warning is both factual and accurate.
     “Plaintiffs protest that the warning required by the ordinance is misleading because it suggests that ‘consuming beverages with added sugar is dangerous regardless of one’s diet or lifestyle’ and that ‘consuming beverages with added sugar necessarily and inevitably contributes to tooth decay at any level of consumption.’
     “But this argument is unavailing. The ordinance simply says sugar-sweetened beverages “contribute” to tooth decay; it does not say that sugar-sweetened beverages inevitably result in or will necessarily cause tooth decay. Nor would a reasonable consumer so construe the warning,” Chen wrote.
     But the factual battle isn’t about tooth decay, Chen noted, as there is really no dispute that soda is a heavy contributor.
     Turning to obesity and diabetes, Chen said that while there is some debate over how big a role soda consumption plays in causing diabetes and obesity, both sides agreed that at the very least soda contributes calories that lead to weight gain.
     Chen took issue with the ABA’s argument that sodas were being unfairly singled out. All foods and drinks contain calories, the ABA had maintained, and it all contributes to weight gain if more calories are consumed than expended — but Chen was not persuaded.
     “Assuming a diet of 2,000 calories per day, one serving size of soda represents more than 10 percent of the total caloric intake,” he wrote. “For young children, 240 calories is likely an even higher percentage of total caloric intake, which is especially problematic given that there is undisputedly a child obesity problem, both in the country and in San Francisco, and there is evidence that sugar-sweetened beverages contribute a significant portion of calories for children in particular.”
     He added, “The court thus concludes that it is likely the city’s mandated
     warning (and its use of the term “contribute”) is factual and accurate, even as to obesity and diabetes, and the city had a reasonable basis for identifying sugar-sweetened beverages as a cause.
     “The city has a legitimate interest in public health and safety, and the warning that sugar-sweetened beverages contribute to obesity and diabetes is reasonably related to the city’s interest in public health and safety, particularly in light of the evidence indicating that sugar-sweetened beverages are a significant source of calories as well as a significant source of added sugar.”
     Chen was also unconvinced that the mandated warning is unduly burdensome or chilling, as there is no evidence that the ordinance will cause soda companies to stop advertising in San Francisco.
     He wrote, “Although plaintiffs have submitted declarations from some of the major beverage companies stating that they will withdraw advertisements covered by the ordinance if the ordinance goes into effect, the court does not find those declarations particularly compelling.”
     In a statement sent through a representative, the ABA said, “We are disappointed in the court’s ruling on our motion for a preliminary injunction as we believe that the city of San Francisco’s mandate violates the constitutional rights of a select group by unfairly discriminating against one particular category of products, based on one ingredient found in many other products. We are reviewing the decision and look forward to making our case on the merits of this ordinance in court.”

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