SF ‘War’ on Soda Ads Stokes Free-Speech Fire

(CN) - San Francisco's "war" to "take down soda" unconstitutionally chills the American Beverage Association's right to advertise its products as it sees fit, a lawyer for the association argued Thursday.

The trade group asked U.S. District Judge Edward Chen to bar the city from enforcing an ordinance that will require a warning label on all ads for sugary drinks. 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 large letters: "WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay."

"If you put a 20 percent block warning on our advertisements, you will completely and utterly undermine the message we are trying to send with that advertisement," ABA lawyer Robert Bress said. "We are trying to promote a message, and if you require these kinds of block warnings on them it's going to change the nature of the whole experience."

He added that the beverage industry's ads aren't deceptive or misleading, but truthful commercial speech. To chill that speech "would be an abomination under the First Amendment," he said.

Bress said the warning label is akin only to the Surgeon General's warning on cigarettes, leading consumers to unfairly infer that sodas are more dangerous than other sweetened beverages, like juice or milk, or high-calorie foods.

"Added sugar does not contribute to weight gain any more than any caloric product," Bress said.

"Is there a dispute that sugar-sweetened beverages are the greatest contributor to the intake of added sugar in the American diet?" Chen asked.

"Yes there is," Bress answered, drawing titters from the gallery. Science can only agree that the overconsumption of calories in general increases the risk of diabetes and obesity, he said.

Deputy City Attorney Jeremy Goldman argued that Chen should look at the actual words in the warning label.

"The warning uses the words 'contributes,'" Goldman said. "It's not misleading. They are easy to over-consume, they are marketed to over-consume. If consumers take away a message that there are risks associated with sugar-sweetened beverages, that's not misleading."

Chen asked Goldman if he thought the warning implied that soda is more dangerous than other sugary drinks and foods.

"I don't think it's the case that a reasonable person reading the warning would necessarily come to that conclusion," Goldman answered, adding that the beverage industry's reluctance to make the factual disclosure in the warning doesn't make the warning unconstitutional.

"If an advertiser would rather not speak than make the disclosure, that is not a First Amendment problem," he said.

Chen replied, "But they're not making misleading speech, they're just advertising. There's evidence here that it is being chilled."

Goldman countered that the beverage association has no interest in not including the warning.

Chen seemed doubtful. "So it doesn't matter how much speech it chills; it's factual and accurate and you have no interest?" he probed.

"If it doesn't make speech impossible, there is no chilling," Goldman replied. "If it makes speech undesirable, it's not a First Amendment chilling."

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