An en banc U.S. Court of Appeals for the Ninth Circuit has held that a district court abused its discretion by denying the American Beverage Association and the California Retailers Association a preliminary injunction that would prevent San Francisco’s ordinance regulating advertisements for sugar-sweetened beverages (SSBs) from taking effect. Am. Beverage Ass’n v. City & Cty. Of San Francisco, No. 16-16072 (9th Cir., entered January 31, 2019).

The court found that the amount of space required for the mandatory health disclosure on SSB ads—20 percent—“is not justified and is unduly burdensome when balanced against its likely burden on protected speech.” The Supreme Court “made clear… that a government-compelled disclosure that imposes an undue burden fails for that reason alone,” the Ninth Circuit stated, before noting that the “remaining factors of the preliminary injunction test also favor an injunction. Because Plaintiffs have a colorable First Amendment claim, they have demonstrated that they likely will suffer irreparable harm if the Ordinance takes effect.” Accordingly, the court reversed the district court’s decision denying a preliminary injunction and remanded the case for further proceedings.

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.