The American Beverage Association (ABA) has partnered with California retail and advertising associations to challenge San Francisco ordinances requiring warning labels on sugar-sweetened beverage (SSB) advertisements and prohibiting advertisements of such products on city property. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., filed July 24, 2015). ABA argues that the ordinances violate the First Amendment, which “forbids the City from conscripting private speakers to convey [the city’s viewpoint] while suppressing conflicting viewpoints on this controversial topic.”

The complaint first details ad prohibition on city property, including transportation and parks, while it “explicitly permits advertisements that criticize sugar-sweetened beverages or encourage people to stop drinking them. The First Amendment flatly forbids such government-imposed viewpoint discrimination.” The second component of the ordinance prohibits all producers of SSBs “from using their names on any City property to promote any product or any non-charitable event, no matter whether commercial, athletic, musical, or even political in nature,” including “local icons like Ghirardelli Chocolate, Peet’s Coffee, Jamba Juice, and Swenson’s,” the complaint notes.

ABA then explains the SSB warning label mandate, describing it as requiring private speakers “to convey, regardless of their own views, the City’s controversial and misleading opinion that certain beverages with added sugar are inherently hazardous, more harmful to consumers’ health than beverages with natural sugar or foods with added sugar, and uniquely responsible for increasing rates of obesity and diabetes.” The mandate singles out SSBs unfairly, the complaint argues, because SSBs are no more hazardous than other foods or beverages that require no warning. Further, “while Americans consume many more calories today than in the past and rates of obesity and diabetes are on the rise, sugar-sweetened beverage consumption has decreased substantially over the
last 15 years.” The complaint compares the mandated warnings to a 2010 initiative requiring retailers to warn consumers about cell-phone radiation regardless of the retailers’ beliefs, which a California federal court enjoined on First Amendment grounds and the Ninth Circuit affirmed.

The plaintiffs seek an injunction preventing enforcement of the ban, which is set to take effect on July 25, 2016.


Issue 573


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.