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. A Ninth Circuit panel overturned that decision, holding that the advertisers were likely to prevail in their First Amendment challenge, because it required advertisers to convey “disputed policy views,” indeed “one-sided or misleading messages,” rather than uncontroversial statements of fact, which would be subject to a more lenient standard of First Amendment review. The panel also held that the size of the required warnings made them “unduly burdensome.” A concurring opinion disagreed with the worst aspects of this decision, and would have found the advertisers likely to prevail only based on the size of the warnings. If left to stand, the panel decision threatens to impose a standard of scientific certainty that virtually no health warning could ever meet. And in accepting at face value the advertisers’ claims that the ordinance would deter them from advertising, thereby “chilling” protected speech, the decision threatens to give any industry a “heckler’s veto” over any regulation of its advertising. Fortunately, the Ninth Circuit granted en banc review. The en banc court overturned the district court’s preliminary injunction denial, holding that the trade industry was likely to prevail on the merits. However, the majority opinion held only that, given evidence presented that smaller warnings would be effective, the size of the required warnings imposed an unconstitutional burden on advertisers, explicitly declining to decide whether the warnings were factually accurate and uncontroversial, thereby vacating the most troubling aspects of the panel decision. Along the way, the majority upheld the the conclusion, defended by Public Good, that the more lenient standard of review applies more broadly than the challengers had argued.
Subsequently, in January 2020, San Francisco passed a new ordinance, imposing a similar warning requirement on soda labels, but modifying the text and reducing the required warning size from 20 to 10% of the label. The same industry groups promptly sued again. The case is currently before the District Court for the Northern District of California.
187 F.Supp.3d 1123 (N.D. Cal. May 17, 2016), and reversed, 871 F.3d 884 (9th Cir. Sept. 19, 2017), and reversed and remanded, 916 F.3d 749 (9th Cir. Jan. 31, 2019) (en banc).