Are the First Amendment rights of soft drink advertisers violated by an ordinance requiring prominent health warnings on advertisements for sugar sweetened beverages?
The Issue: San Francisco enacted an ordinance requiring that signs advertising sugar sweetened beverages (SSBs) include a label, covering 20% of the sign, that reads “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.” Trade organizations representing soda companies and billboard advertising companies challenged the ordinance, claiming that the required warnings compel speech in violation of the First Amendment.
Why It Matters: The harms of obesity and type 2 diabetes may be the United States’ gravest public health challenge, and tooth decay remains its most widespread chronic disease. All three epidemics are fostered in significant part by the consumption of SSBs, and SSB consumption is fueled in significant part by soda company advertising, targeted in particular at the populations suffering most from these diseases. The case will set an important precedent – San Francisco’s warning requirement is the nation’s first of its kind, and similar requirements are currently being considered by various other cities and states.
The case also implicates doctrinal questions of more general significance. The compelled speech doctrine is supposed to protect freedom of conscience against government enforcement of political or religious orthodoxy. To allow this doctrine to be trivialized by businesses seeking to avoid regulation is an example of “First Amendment opportunism” that could jeopardize health or safety warnings on cigarettes or rat poison, or notices concerning discharge of pollutants or workplace hazards, while devaluing the protection of unpopular dissent which the First Amendment was intended to safeguard.
Public Good’s Contribution: Public Good filed briefs in both the district court and the court of appeals on behalf of over twenty national and California public health and medical organizations, led by the American Heart Association, opposing advertisers’ petition for a preliminary injunction. Public Good’s briefs demonstrated that the proposed warnings were uncontroversially true statements of fact, explaining the extensive scientific evidence supporting the warnings and their general acceptance by the public health community. The briefs also opposed the distorted approach to the First Amendment proposed by the soda industry and advertisers and their amici.
Amici represented by Public Good: Public Good’s briefs were filed on behalf of the American Heart Association, the American Academy of Pediatrics (California), the Association of Asian Pacific Community Health Organizations, the California Academy of Family Physicians, the California Center for Public Health Advocacy (aka Public Health Advocates), the California Chapter of the American Association of Clinical Endocrinologists, the California Endowment, the California Medical Association, the California Pan-Ethnic Health Network, the Center for Science in the Public Interest, Changelab Solutions, Community Health Partnership, the Crossfit Foundation, the Diabetes Coalition of California, Healthy Food America, Latino Coalition for a Healthy California, the National Association of Chronic Disease Directors, the National Association for County and City Health Officials, the National Association of Local Boards of Health, the Network of Ethnic Physician Organizations, NICOS Chinese Health Coalition, Prevention Institute, the Public Health Institute, the Public Health Law Center, San Francisco Bay Area Physicians for Social Responsibility, the San Francisco Community Clinic Consortium, the San Francisco Medical Society, the Southern California Public Health Association, Strategic Alliance for Healthy Food and Activity, and the Food Trust.
Outcome: On May 17, 2016 the District Court denied the motion for a preliminary injunction, finding that the advertisers were unlikely to prevail on their First Amendment claim. San Francisco’s City Attorney publicly expressed gratitude to Public Good and the public health amici for their contribution to the case. The plaintiffs have appealed, and denial of the preliminary injunction is currently under review by the Court of Appeals for the Ninth Circuit.
187 F.Supp.3d 1123 (N.D. Cal. May 17, 2016), and 9th Cir. Nos. 16-16072, 16-16073.