Court Blocks San Francisco's Push to Put Warning Labels on Ads for Sugary Drinks
An en banc panel of the U.S. Court of Appeals for the Ninth Circuit blocked a San Francisco city ordinance that would have required health warnings on advertisements for sodas and other sugar-sweetened drinks.
January 31, 2019 at 05:00 PM
4 minute read
The original version of this story was published on The Recorder
A federal appellate court has blocked a San Francisco city ordinance that would have required health warnings on advertisements for sodas and other sugar-sweetened drinks.
An en banc panel of the U.S. Court of Appeals for the Ninth Circuit on Thursday found that the city's law compelled commercial speech and violated the First Amendment rights of the plaintiffs in the case, American Beverage Association, California Retailers Association, and California State Outdoor Advertising Association, who were represented by Latham & Watkins.
The San Francisco ordinance, enacted in June 2015, would have required certain advertising materials and billboards for drinks that included more than 25 calories per 12 ounces to include a label stating: “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.”
Writing for the majority in Thursday's opinion, Circuit Judge Susan Graber noted that although the city's expert had defended its requirement that the warning label cover 20 percent of the regulated ads, the expert had cited a study finding that smaller, less burdensome warning labels could be just as effective.
“On this record, therefore, the 20 percent requirement is not justified when balanced against its likely burden on protected speech,” Graber wrote. “Defendants have not shown that the contrasting rectangular border containing a warning that covers 20 percent of the advertisement does not 'drown out' plaintiffs' messages and 'effectively rule out the possibility of having [an advertisement] in the first place.' ”
The ruling, however, stopped short of saying whether a smaller label would be constitutional.
John Coté, a spokesman for San Francisco City Attorney Dennis Herrera, said that the decision was “ solely about the size of the warning label.”
Said Coté: “We're evaluating our next steps in light of this decision. But make no mistake: We're committed to protecting the health of San Francisco residents by allowing them to get factual information.”
Latham's Rick Bress, who argued on behalf of the plaintiffs at the Ninth Circuit, called the ruling “an important vindication of First Amendment commercial speech rights.”
“The Court agreed that the extraordinary size of the warning—20 percent of the overall ad—is 'not justified when balanced against its likely burden on protected speech,' ” Bress said. He added that his clients continue to believe that the required disclosure was “ inaccurate and controversial,” points that multiple concurring judges raised.
Thursday's decision reaches the same outcome as a prior Ninth Circuit panel decision from 2017 penned by Judge Sandra Ikuta. Ikuta joined with the majority's decision to block the San Francisco law on Thursday but dissented from its reasoning. Ikuta found that the majority failed to apply the framework for analyzing when government-compelled speech violates the First Amendment, as outlined in National Institute of Family & Life Advocates v. Becerra. The 2018 U.S. Supreme Court decision found California requirements for crisis pregnancy centers to make certain notifications violated the First Amendment.
Judges Morgan Christen and Jacqueline Nguyen both filed separate concurrences, with Chief Judge Sidney Thomas joining Nguyen's.
A number of large firms and appellate specialists filed briefs on behalf of amici in the case, including Davis Wright Tremaine for The Association of National Advertisers Inc., Wiley Rein for the U.S. Chamber of Commerce, Gupta Wessler for a group of public health advocates, including the American Cancer Society Cancer Action Network, Jenner & Block for the Retail Litigation Center Inc., and Hogan Lovells for the Grocery Manufacturers Association.
Read the En Banc Opinion:
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllSuit Over Citric Acid in Kraft Mac & Cheese Survives Challenge
Walmart Accused of Misrepresenting 'Cheese' Ingredients in Great Value's Macaroni & Cheese
3 minute readJudge Dismisses Microplastics Suit Against Evian's 'Natural Spring Water'
5 minute readKraft Heinz Hires GC of Industrial Manufacturer as Legal Chief
Trending Stories
- 1Judge Denies Sean Combs Third Bail Bid, Citing Community Safety
- 2Republican FTC Commissioner: 'The Time for Rulemaking by the Biden-Harris FTC Is Over'
- 3NY Appellate Panel Cites Student's Disciplinary History While Sending Negligence Claim Against School District to Trial
- 4A Meta DIG and Its Nvidia Implications
- 5Deception or Coercion? California Supreme Court Grants Review in Jailhouse Confession Case
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250