ANA Challenges San Francisco Health Warnings on Ads for Certain Sugared Beverages

In a brief filed with the federal district court in California, the Association of National Advertisers (ANA) has argued that a San Francisco 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.  

“If allowed to stand, 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: “The San Francisco ordinance is based on a dubious proposition that the government knows best when it comes to advising people about nutrition.  As the ANA brief points out, repeated revisions of the USDA’s ‘dietary guidelines’ cast doubt on the scientific basis for any required warnings.”

Last summer, the San Francisco Board of Supervisors passed two ordinances which restricted ads for “sugar sweetened beverages” that contain more than 25 calories from sweeteners per 12 ounces.  One of the ordinances prohibited any ads for these beverages on public property. The other requires “health warnings” taking up to 20 percent of the space on certain ads for these products.  A lawsuit was filed in federal court by the American Beverage Association, the California Retailers Association and the California State Outdoor Advertising Association challenging the ordinances on First Amendment grounds.  

In December, the Board of Supervisors voted to repeal the ordinance banning the ads on public property. The ordinance requiring the health warnings is set to become effective in July.  ANA’s “friend-of-the-court” brief was filed in support of the motion of the industry groups for a preliminary injunction to block the enforcement of the ordinance.  

Pointing to the numerous non-speech steps the Board could take to improve the health of their citizens, ANA’s brief stated: “The Supreme Court has held that restricting speech must be ‘a last – not first – resort.’  Every sugary, fatty, salty, processed, or other food disfavored by the science of the moment would be susceptible to having a significant portion of its advertising turned into a placard for government hectoring with which the advertiser not only disagrees, but for which there may be data controverting the government position.”  

Jaffe concluded: “Fortunately, the First Amendment does not allow this type of regulatory nannyism. This case is critically important for the entire marketing community.  Unless this type of restriction 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.”