A California federal court has denied the American Beverage
Association’s (ABA’s) attempt to preliminarily enjoin the enforcement
of a law requiring manufacturers of sugar-sweetened beverages (SSBs)
to provide a warning about the alleged health risks associated with SSB
consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415
(N.D. Cal., order entered May 17, 2016). Further details about the lawsuit
appear in Issues 573, 586 and 592 of this Update.

The court first assessed the ABA’s argument that the law would burden
noncommercial speech in addition to regulating commercial speech,
which would trigger the highest level of scrutiny. ABA members’
communications to consumers are not limited to commercial speech, the
organization argued, because they also publicize other messages, such as
promotion for the Pride Parade and the Chinese New Year’s Festival. The
court disagreed, finding the amount of noncommercial speech affected
was not substantial.

The court then reviewed whether the ordinance’s warning is factual
and accurate as required for government-compelled speech and found
that the law would likely pass such an analysis. The court dismissed
ABA’s challenge to the language of the required warnings, including the
message that SSBs “contribute” to tooth decay, obesity and diabetes; the
ordinance “does not say that SSBs inevitably result in or will necessarily
cause tooth decay,” the court noted. “No reasonable consumer would
likely construe the warning as specific to him or her; instead, a
reasonable consumer would understand the warning is directed to the
general public and the statement that SSBs are a contributing factor is to
be viewed in the larger context of public health.”

Finally, the court was not convinced that the warnings will cause
irreparable harm to goodwill and reputation while the law is enforced.
“Many consumers are likely to be familiar with the high sugar content of
soft drinks and other SSBs, and many are aware of potential weight gain
due to calories therefrom and risk of tooth decay,” the court stated. “And
Plaintiffs may engage in counterspeech to combat the asserted harm, not
only in the advertisement containing the warning itself but also through
other means and media.” Further, the plaintiffs’ argument that delaying
enforcement is in the public’s interest failed “because of the weakness
of their First Amendment claim on the merits. Moreover, as indicated
above, the public interest weighs in favor of the City, as the City is taking
legitimate action to protect public health and safety.”


Issue 605

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.