Sweet Victory for Free Speech

By Lawrence S. EbnerFebruary 2, 2019

San Francisco’s “Sugar-Sweetened Beverage Warning Ordinance” was too much to swallow even for the Ninth Circuit. On January 31 the court issued an en banc ruling requiring that the ordinance be preliminarily enjoined on the ground that its manadatory warning about the alleged health effects of sugary soft drinks chills commerical free speech, and thus, likely violates the First Amendment. See American Beverage Ass’n v. City and County of San Francisco, No. 16-16072.

As if California residents and visitors were not already bombarded with State and local government-compelled health warnings relating to use or consumption of a multitude of everyday products, the San Franciso ordinance requires that certain sugar-sweetened beverage advertisements (e.g., posters and billboards) prominently include the following paternalistic 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 level of First Amendment scrutiny that government-compelled health and saftey warnings in the commercial context must withstand to be constitutional continues to be unsettled. Over the objections of some Ninth Circuit judges, that court, among others, applies the criteria described by the Supreme Court in a lawyer advertising case, Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). Under the low level of scrutiny embodied by the Zauderer test, a government-compelled disclosure must be (i) purely factual, (ii) noncontroversial, and (iii) not unjustified or unduly burdensome. The Ninth Circuit en banc majority opinion in American Beverage Association concludes, for purposes of imposing a preliminary injuction, that the Sugar-Sweetened Beverage Warning Ordinance likely fails the Zauderer test. More specifically, the opinon indicates San Francisco has failed to demonstrate that requiring the mandatory warning to be included in a rectangular box occupying at least 20% of a soft drink advertisement is not unduly burdensome.

In light of this conclusion, the en banc majority opinion — unlike the separate concurring opinions that disagree with the majority’s analytical framework — finds no need to consider whether the ordinance is purely facutal and noncontroversial, or whether it would withstand a higher level of First Amendment scrutiny. What is certain, however, is that the Ninth Circuit has put San Francisco’s sugary soft drink ordinance on ice.


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