ANA Opposes San Francisco Pre-Sweetened Beverage Warning Mandate

In a brief filed today with the U.S. Court of Appeals for the Ninth Circuit, 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 and requiring them to carry a compelled government message.  The brief supports industry’s request for a permanent injunction of the mandated warnings.

“San Francisco believes that the government knows best when it comes to nutrition,” said Dan Jaffe, ANA’s Group Executive Vice President, “and that it may force others to deliver its pronouncements on this subject.  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.  The First Amendment protects marketers from these types of efforts by the government to require companies to vilify their own products.”

Last summer, the San Francisco Board of Supervisors passed an ordinance which restricts ads in certain locations for “sugar sweetened beverages” that contain more than 25 calories from sweeteners per 12 ounces.  It requires “health warnings” taking up to 20 percent of the space on certain ads for these products.  A lawsuit filed in federal court by the American Beverage Association, the California Retailers Association and the California State Outdoor Advertising Association challenged the ordinance on First Amendment grounds.  

In January, ANA filed a brief with the federal district court in support of the industry groups.  The ordinance was set to become effective in July, but the district court agreed to a temporary injunction blocking immediate enforcement.  ANA’s new brief filed today supports the request of the industry groups that the Court of Appeals grant a permanent injunction blocking enforcement of the ordinance until the case is finally decided.  

ANA’s brief noted that if the ordinance is upheld, “there would be virtually no limit to similar efforts targeting other products and services at any level of government.  Every sugary, fatty, salty, processed, or other food disfavored by the science of the moment – and every other product or service regulators view as creating a ‘risk’ – 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.”  

“These industry concerns are not exaggerated,” said Jaffe.  “Already, the Baltimore City Council is considering similar warnings for sugar-sweetened beverages.  These risks go far beyond the soft drink industry.  The City of Berkeley recently passed a law requiring cell phone manufacturers and sellers to post a point of sale warning sign regarding radio frequency safety that contradicts findings by the Federal Communications Commission.  ANA also is supporting a challenge to that law.”

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.”