PUBLIC HEALTH: American Beverage Association v. City & County of San Francisco (U.S. Ninth Circuit Court of Appeals, 16-16072)

CMA, along with NEPO, joined the Center for Public Health Advocacy and other health organizations, in an amicus brief supporting the City and County of San Francisco in defending its sugar-sweetened beverage ordinances.

In June 2015, the City and County of San Francisco passed three first-of-its-kind ordinances related to sugar-sweetened beverages (SSBs) requiring health warning labels on SSB advertisements, prohibiting advertisements of SSBs on city owned property, and banning the spending of city money of SSBs. On July 24, 2015, the American Beverage Association, along with the California Retailers Association and California Outdoor Advertising Association, filed a lawsuit in federal court challenging the ordinances requiring health warning labels on SSB advertisements and prohibiting SSB advertisement on city owned property. The lawsuit alleges that both ordinances violate free speech rights under the First Amendment and questions claims that SSBs are hazardous in any quantity and more hazardous to health than any other food or beverage.

CMA’s brief discusses the adverse health effects resulting from excessive consumption of SSBs, discuss the need for the warnings, explain the rationales behind the disclosures, and the scientifically established justification to warn specifically about diabetes, obesity, and tooth decay.

On May 17, 2016, the federal court denied the American Beverage Association’s request for an order blocking San Francisco’s soda warnings law. The court found that the mandatory warning labels did not violate beverage companies’ or advertisers’ First Amendment rights. The American Beverage Association appealed the decision to the U.S. Court of Appeals for the Ninth Circuit. CMA, along with other amici, have filed an amicus brief before the U.S. Court of Appeals for the Ninth Circuit.

On September 19, 2017, the Ninth Circuit reversed the trial court decision and struck down the San Francisco ordinance. The Court held that because the warning was required to take up 20% of the space on the advertisement, the warning was unduly burdensome and chilled protected commercial speech under the First Amendment. Following a petition for rehearing by the City, on January 29, 2018, the Ninth Circuit Court of Appeals granted rehearing of the case before the full panel of judges on the Ninth Circuit.

On January 31, the Ninth Circuit Court of Appeals, sitting en banc, ruled in favor of the ABA, holding that the law, in its current form, likely violates the First Amendment. CMA will continue to monitor this litigation as the City of San Francisco decides how to proceed.