San Francisco Beverage Ad Warning Labels: Unhelpful and Unconstitutional

June 25, 2015

The San Francisco Board of Supervisors recently approved an ordinance that would require health labels on advertisements for certain beverages – sodas, sports drinks, energy drinks, and iced teas – that contain more than 25 calories from sweeteners per 12 ounces.  These labels, which must appear on billboards or other outdoor ads, must include a warning that “drinking beverages with added sugars contributes to obesity, diabetes, and tooth decay.”  In its findings and purpose, the ordinance cites the myriad issues it claims result from consumption of “sugar sweetened beverages” and seeks to inform the public to “promote informed consumer choice.”    

ANA believes that this ordinance is clearly unconstitutional. The U.S. Supreme Court has repeatedly affirmed, since its 1980 decision in the landmark Central Hudson case, that restrictions on advertising must “directly advance the governmental interest asserted” in a “material manner” and cannot be “more extensive than is necessary to serve that interest.” The Court further stated in the 2002 Western States case that advertising restrictions must be a “last – not first – resort.”  

The San Francisco ordinance would not meet any of these criteria.  It is extremely overbroad.  The labels must include warnings that added sugars “contribute” to obesity and diabetes – but that potentially could be true for all caloric foods and drinks if they are excessively consumed.  There are clearly numerous other factors that contribute to obesity and diabetes beyond consuming “sugar sweetened beverages.”  

It is highly unlikely these warnings would have an impact on health, while forcing advertisers to spend their money to vilify their products.  The Supreme Court held in its Pacific Gas & Electric v. Public Utilities Commission decision dealing with mandated disclosures, that it is unconstitutional for the government to conscript private companies to promulgate the government’s desired messages with which it disagrees.  The Court stated that companies can refuse to accept government messages with which they disapprove where deception or misleading speech is not involved.  The court noted that “the choice to speak includes within it the choice of what not to say.” Additionally, San Francisco plans on spending money to enforce an ordinance that compels speech without detailing any other efforts to combat obesity, diabetes or tooth decay first, which obviously fails the Western States mandate.

Setting aside the constitutional arguments, the ordinance creates a very dangerous precedent.  There are 19,492 municipal level governments in the United States.  What would happen if many of them – whether it be New York City, Atlanta, or Peoria – decide to impose disparate warnings not only for sugar sweetened beverages, but for high calorie snacks, salty products, and a myriad of other issues that some city council believes they would like to inform the public about?  Manufacturers would be confronted with a dizzying patchwork of regulations around the country – and consumers would be confronted with a confusing mélange of warnings on products someone, somewhere, thought the public needed to be warned about.  This serves no one’s interest.

This ordinance is likely to be knocked down by the courts, but unfortunately in the meantime, other jurisdictions may attempt to copy San Francisco’s approach, so advertisers need to be on alert.


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