Major First Amendment Victory, Serious Constitutional Challenges Remain

December 3, 2015

Tuesday night, the San Francisco Board of Supervisors unanimously voted to repeal an ordinance prohibiting the advertisement of soda on public property. The ordinance, which we discussed in a blog post in July, threatened First Amendment rights by ignoring free speech precedents set by the U.S. Supreme Court. The Board of Supervisors’ decision comes after a lawsuit was filed by the American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association asking the district court to stay this ordinance until constitutional issues were resolved. The Board finally revoked the ordinance after the City Attorney, citing a recent Supreme Court case, reversed his legal opinion as to its constitutionality.

ANA is very pleased that this unconstitutional law was repealed. The battle, however, is far from over.  Supervisor Malia Cohen, the sponsor of the original ordinance, has vowed to keep fighting against the soda industry. "I want to assure you that the war rages on," she said at the Tuesday meeting.

The repealed ordinance was just one of two dangerous laws impacting advertising adopted in San Francisco over the summer. The other ordinance 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,” and state that this is “a message from the City and County of San Francisco.”

This is clearly an overbroad law. Numerous products can potentially “contribute” to obesity. This type of vague and sweeping claim clearly cannot constitutionally allow the government to conscript substantial private advertising space and force companies to fund the promulgation of government mandated messages.

We are confident that this ordinance will be reversed by the courts. ANA intends to actively participate in efforts to overturn this misguided law. Clearly, if this ordinance is not struck down, it will create vast new precedents impacting numerous areas of advertising throughout the United States.

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