ANA Opposes Bill in Baltimore City Council Requiring Health Warnings on Ads for Certain Sugar Sweetened Beverages

In a letter filed with the members of the Health Committee of the Baltimore City Council, the Association of National Advertisers (ANA) has argued that a proposed ordinance requiring health warnings on ads for certain sugar sweetened beverages violates the First Amendment by seizing space on those ads to carry a compelled government message.  

“There are numerous steps the City Council can take to address the obesity challenge that do not involve advertising restrictions.  If adopted by the City Council, this ordinance would set a very dangerous precedent for other products and services that fall in disfavor with some government body,” said Dan Jaffe, ANA’s Group Executive Vice President.  “The First Amendment protects marketers from these types of efforts by the government to require companies to vilify their own products.”

Jaffe noted: “This proposal is very similar to an ordinance that was adopted last year by the San Francisco Board of Supervisors, which is now being challenged in the federal courts in California.  We are supporting that court challenge and the Baltimore proposal suffers from the very same constitutional defects.”  

Council Bill 16-0617 would compel certain advertisers to display a government-prescribed health warning, with very specific format requirements, in many of their ads for added sugar sweetened beverages.  ANA’s letter noted that the bill exempts an extremely broad range of sugar laden products including natural fruit juices from requiring the health warnings: “The government’s required messaging on only certain advertisements threatens to mislead consumers in the false assumption that products not covered by the warning mandate, including natural juices, do not have the same effect when consumed in excess.  In fact, ANA believes that Council Bill 16-0617 demonstrates a counterproductive and inordinate focus on sugar sweetened beverages compared to other drinks and suffers from serious policy myopia not based on sound nutritional information.”

Pointing to the numerous non-speech steps the Board could take to improve the health of their citizens, ANA’s letter stated: “The Supreme Court has held that restricting speech must be ‘a last – not first – resort.’  There is no constitutional basis for the City Council to use sugar-sweetened beverage advertising as a megaphone to impose views on the public.”  

Jaffe concluded: “Fortunately, the First Amendment does not allow this type of regulatory nannyism.  This issue is critically important not just for the soft drink industry but for the entire marketing community.  Unless this type of proposal is defeated, the regulatory floodgates are certain to be opened.  There are more than 30,000 local governments across the country which could try to commandeer space on ads whenever they feel like sending a government message.”