San Francisco’s Law on Sugar-sweetened Beverage Advertising

October 31, 2017

San Francisco passed an ordinance requiring advertisers of sugar-sweetened beverages to place a warning on specific types of advertisements stating that the product "contributes" to obesity, diabetes, and tooth decay. The warning must cover 20% of the ad. A panel of the Ninth Circuit struck down the law, saying it violates the First Amendment. The government can compel advertisers to add warnings under the First Amendment if the warnings are (1) "factual and noncontroversial" and (2) not "unduly burdensome." The Ninth Circuit held that San Francisco's warning failed both parts of this test. 

The reasoning of the panel's decision, if applied more broadly, could be very dangerous to warning labels that are integral to public health efforts---particularly tobacco warnings.  ACS CAN and public health partners filed a “friend of the court” brief asking the full circuit to rehear the case en banc, or get a clarification on the ruling from the original panel.  The brief provides background on how the panel's reasoning would jeopardize federal tobacco warnings, including existing and pending warnings for cigarettes, smokeless tobacco, and cigars. Even the tobacco companies have conceded that cigarette warnings---which state that smoking "causes" lung cancer---are factual and noncontroversial. Yet by the panel's reasoning, the warning would have to contextualize such a broad claim or be deemed "controversial." That would make basic tobacco warnings unduly complicated and difficult to understand.