City’s Sugar Warning Banned From Soda Ads, for Now

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By Perry Cooper

Beverage and advertising groups notched a win Sept. 19 as the Ninth Circuit ruled that a San Francisco law requiring sugar warnings in ads might violate their right to free speech ( Am. Beverage Ass’n v. San Francisco , 9th Cir., No. 16-16072, 9/19/17 ).

“Because the ordinance is not purely factual and uncontroversial and is unduly burdensome, it offends the associations’ First Amendment rights by chilling protected commercial speech,” Judge Sandra S. Ikuta wrote for the U.S. Court of Appeals for the Ninth Circuit.

The ordinance, enacted in 2015, requires advertisers who post advertisements for sugar-sweetened beverages within 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.”

Accuracy in Dispute

The American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association sought a preliminary injunction to prevent implementation of the ordinance.

The lower court denied the injunction, but the appeals court reversed.

The accuracy of the warning is in reasonable dispute, the court said, citing Food and Drug Administration guidance that added sugars are “generally recognized as safe.”

And major soda companies have already said they will remove advertising from San Francisco if the law goes into effect, showing that commercial speech would be chilled, the court said.

Judge J. Michael Seabright, sitting by designation from the U.S. District Court for the District of Hawaii, joined the opinion.

Judge Dorothy W. Nelson wrote separately. She agreed the ordinance would probably chill protected commercial speech, but wouldn’t make the conclusion that the warning was controversial and misleading.

Latham & Watkins LLP; Knox Lemmon & Anappolsky LLP; and Gibson Dunn & Crutcher LLP represented the associations.

The Office of the City Attorney represented San Francisco.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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