The US Court of Appeals for the Ninth Circuit today issued a ruling that blocks the implementation of a San Francisco city ordinance that would have mandated health warnings on advertisements for sugar-sweetened beverages on buses, billboards and buildings in the city.
The ordinance was passed in 2015 in an effort to reduce the increasing incidence of obesity, diabetes and tooth decay in children, but has not yet taken effect.
A three-judge appellate panel found the required warning is “not purely factual” and “unduly burdens and chills protected commercial speech.” The Court also noted that the ordinance only covers sweetened beverages but does not apply to other products with the same amount of sugar or more; the court therefore ruled that the ordinance will not go into effect during until the lawsuit filed by the American Beverage Association is resolved.
A spokesperson for the City Attorney’s office said that the city remains “committed to being a leader when it comes to protecting the health of our residents, particularly our children.”
The warning that would have been required under the ordinance follows a familiar format:
“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 ordinance would have required that the mandated warning would occupy at least 20 percent of the advertisement for certain sugar sweetened beverages.
The appellate court found the ordinance probably violates the First Amendment by requiring private businesses to make controversial and burdensome disclosures about their products.
The three-judge panel of the Ninth Circuit Court of Appeals issued a preliminary injunction that halts the implementation of the ordinance.
The appellate panel applied the framework set out in the Supreme Court of Ohio’s 1985 Zauderer opinion, under which “unjustified or unduly burdensome disclosure requirements” that might “chill protected commercial speech” violate the First Amendment.
.The Zauderer opinion has been adopted by several other courts to analyze compelled disclosure requirements. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 (1985).
The Judicial panel found the San Francisco Ordinance was not only controversial and burdensome, but also misleading. The Court noted that the U.S. Food and Drug Association and several medical associations have determined that sugar sweetened beverages are safe in moderation.
The Court’s ruling is important because most Proposition 65 warnings share certain characteristics to the compelled commercial speech identified by the Ninth Circuit Court.
For instance, warnings under the revised Proposition 65 Warning Regulation strictly mandate the same warning language regardless of context or potential exposure level.
In addition, the recently adopted Warning Regulation forbids the addition of contextual information by the entity providing the warning, claiming that the addition of such information would dilute the warning. However, there is a good chance that some Proposition 65 warnings could be determined to be controversial, and possibly misleading.
The issue of compelled commercial speech may be a key issue in the ongoing Starbucks Coffee trial.
The case cited by this article is: American Beverage Association et al v. City and County of San Francisco, the Ninth. No 3:15-cv-03415-EMC (9th Cir. Sept. 19, 2017).
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