Filing Shows San Francisco Beverage Ordinance is Unconstitutional

July 30, 2015

In response to a recently approved San Francisco ordinance that would ban most advertising of sugar-sweetened beverages – sodas, sports drinks, energy drinks, and iced teas – on government property, the American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association have filed a motion asking the district court to stay this ordinance until constitutional issues are resolved.

The numerous constitutional violations triggered by this ordinance make it appear that the San Francisco supervisors were intent on stepping on virtually every available First Amendment landmine. The industry motion for a preliminary injunction filing does an excellent job of clearly laying out why this ordinance is unconstitutional.

Five flagrant constitutional violations are specifically noted by the plaintiffs:

    “First, the Ordinance discriminates on the basis of viewpoint by suppressing speech that the City disfavors while allowing conflicting speech the City favors.
    Second, the Ordinance’s prohibition against commercial advertisements for sugar-sweetened beverages on City property is not reasonably related to the purpose of the forums where these advertisements are placed. This speech ban does not, for example, make City buses, bus stops, or light rail more reliable or safe.
    Third, the Ordinance’s ban on sugar-sweetened beverage producers’ use of their own names when sponsoring products and events on City property impermissibly discriminates based on the identity of speakers because the City disagrees with their viewpoints.
    Fourth, the Ordinance’s ban on sugar-sweetened beverage producers’ use of their own names when sponsoring products and events on City property unreasonably restricts speech in the forums to which it applies.
    Fifth, prohibiting sugar-sweetened beverage producers from using their names effects an overbroad and impermissible prior restraint by suppressing substantial speech – even core non-commercial speech – promoting any non-charitable event or product on City property.”

ANA strongly agrees that this ordinance is clearly unconstitutional and should be quickly overturned. The United States Supreme Court has repeatedly affirmed 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 that advertising restrictions must be a “last – not first – resort.” Clearly, this ordinance totally fails these tests.

A second highly problematic ordinance impacting sugary beverage advertising also recently passed in San Francisco. This ordinance would require health labels on advertisements for certain beverages 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.” Nevertheless, the ordinance contains a sweeping number of exceptions to their restrictions creating so many holes in the ordinance as to create a veritable regulatory Swiss cheese. 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.” In the filing mentioned above, the plaintiffs noted that they would seek a preliminary injunction against this ordinance as well. Both of these ordinances present very serious speech restrictions that would create dangerous potential precedents with impacts far beyond the category of sweetened beverages. ANA is considering how best to help overturn these ordinances, and we will alert members to any major developments in these cases.

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