Law Review: Soft drinks with added sugar cause obesity
San Francisco has always been a progressive city, some would say too progressive. Politically, San Francisco has never been afraid to lead the liberal charge.
San Francisco has always been and will always be “the City” to me; however, after visiting New York, “the City” tag is probably best reserved for Northern Californians.
San Francisco enacted an ordinance in June 2015 requiring advertisements for sugar-sweetened beverages (SSB Ads) in San Francisco to include the following statement:
“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 term “Sugar-Sweetened Beverages” includes soda and other non-alcoholic beverages that contain one or more added sweeteners and more than 25 calories per 12 fluid ounces of beverage. The stated purpose of the SSB Ads ordinance is to “inform the public of the presence of added sugars and thus promote informed consumer choice that may result in reduced caloric intake and improved diet and health, thereby reducing illnesses to which (sugar-sweetened beverages) contribute and associated economic burdens.”
The WARNING border, called by some the “black box,” must cover 20 percent of the SSB advertisement — set off with a rectangular border.
WARNINGS IN ADVERTISEMENTS
San Francisco’s SSB Ad WARNINGS are mandated in advertisements: on paper, poster, or billboards, in a stadium or arena or any other structure, on a bus, train or any other vehicle. The WARNING is not required for advertising in periodicals, television, electronic media or menus, or areas that occupy less than 36 square inches. Is a comprehensive, broad-based WARNING mandated on most advertising.
SAN FRANCISCO SUED
The City by the Bay was promptly sued by the American Beverage Association, the Outdoor Advertising Association, and the California Retailers Association. As you can imagine, if this ordinance mandating a warning on sugar-sweetened beverages is found lawful, it likely would be duplicated by other municipalities.
The federal trial court ruled the Associations were not likely to succeed in their lawsuit yet the judge granted their injunction pending appeal, essentially ruling for San Francisco and against the Associations, but blocking implementation of the ordinance until the Court of Appeal ruled. The Associations appealed to the federal Court of Appeals.
The Associations argued the WARNING was misleading to the public, would unduly restrict the Associations’ commercial free speech and was an inappropriate violation of the First Amendment.
CITY BY THE BAY LOSES
With a thorough analysis, the Court of Appeals found the WARNING was misleading and not accurate because it did not state that over consumption of sugar-sweetened beverages contributes to obesity, diabetes, and tooth decay. Modest amounts of sugar-sweetened beverages do not necessarily cause those illnesses.
The Court of Appeals ruled that the black box WARNING consuming 20 percent of the SSB Ads overwhelms other visual elements in the advertisement and unduly burdens and “chills” protected commercial speech. The Associations put on evidence that if San Francisco’s SSB ordinance went into effect, it would change advertising campaigns for SSBs everywhere — forced to comply with the City’s ordinance.
The Court of Appeals concluded the Associations would likely win. The injunction was upheld. We will not be seeing San Francisco’s SSB WARNING on advertising anytime soon.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, and Reno. His practice areas include: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com