The city of San Francisco tasted defeat on Tuesday, at least temporarily, as a federal appeals court put a hold on its plans to label sugary-drink ads with health warnings.
Reversing a lower court ruling, the U.S. Court of Appeals for the Ninth Circuit ruled that three groups suing the city—the American Beverage Association, the California Retailers Association and the California State Outdoor Advertising Association—were likely to prevail in claims that the warnings on soda advertisements violate the advertisers’ free speech rights. Following the lead of Philadelphia, which implemented the nation’s first-ever sweetened beverage tax, several cities across the United States have begun taking steps of their own to address consumption of sodas and other sweet soft-drinks.
In 2015, San Francisco enacted an ordinance requiring billboards and other advertisements for “sugar-sweetened beverages” to bear a health warning stating that drinking the product could contribute to diabetes, obesity and tooth decay.
The associations challenged the ordinance, which was set to go into effect in July 2016, but a district judge held that the plaintiffs’ commercial speech would not be hampered by the warnings.
However, Ninth Circuit Judge Sandra Ikuta wrote that the city’s warnings overstate the danger posed by drinking sugary beverages.
“The warning provides the unqualified statement that ‘[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay,’” Ikuta said, “and therefore conveys the message that sugar-sweetened beverages contribute to these health conditions regardless of the quantity consumed or other lifestyle choices.”
Although Ikuta pointed to expert reports in the case highlighting that excessive sugar intake can contribute to a variety of illnesses, she added, “Because San Francisco’s warning does not state that overconsumption of sugar-sweetened beverages contributes to obesity, diabetes, and tooth decay, or that consumption of sugar-sweetened beverages may contribute to obesity, diabetes, and tooth decay, the accuracy of the warning is in reasonable dispute.”
San Francisco City Attorney’s Office spokesman John Cote said the decision was disappointing, but the city is still undeterred.
“We’re analyzing the decision and evaluating all of our options,” Cote said in an email Tuesday. “San Francisco remains committed to being a leader when it comes to protecting the health of our residents, especially our children.”
The lawyer for the American Beverage Association, Richard P. Bress of Latham & Watkins, referred a request for comment to his client. William Dermody Jr., vice president of the association, said in an email statement that the decision “affirms our position that the San Francisco warning mandate not only violates the constitutional right to free speech but it is also deceptive and misleading to consumers.”
Thomas Sutton Knox of Knox Lemmon & Anapolsky, who represented the California Retailers Association, and Theodore B. Olson of Gibson, Dunn & Crutcher, who represented the California Outdoor Advertising Association, did not immediately respond to requests for comment.