Marketing Community Wins Major Victory in Ad Disclosure Lawsuit

February 1, 2019


WASHINGTON – In a key victory for the ad community, the U.S. Court of Appeals for the Ninth Circuit yesterday in an en banc decision reversed a lower court decision which had denied a preliminary injunction blocking the enforcement of a San Francisco ordinance requiring health warnings on ads for certain sugar sweetened beverages. The decision reaffirmed an earlier ruling by a three-judge panel of the court.

The Court of Appeals held that the industry groups challenging the ordinance were likely to succeed on their claim that the ordinance was an unduly burdensome disclosure requirement which violates the First Amendment. ANA had filed “friend of the court” briefs supporting the constitutional challenge in both the district court and the Court of Appeals.

“This is a major victory for the entire marketing community,” stated Dan Jaffe, ANA’s Group Executive Vice President. “If this ordinance were allowed to stand, it would set a very dangerous precedent for other products and services that fall into 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.”

In 2015, 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.

“The industry concerns are not exaggerated,” said Jaffe. “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. 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.”

To learn more about ANA and advertisers’ efforts to defend free speech, visit


About the ANA:

The ANA (Association of National Advertisers)'s mission is to drive growth for marketing professionals, for brands and businesses, and for the industry. Growth is foundational for all participants in the ecosystem. The ANA seeks to align those interests by leveraging the 12-point ANA Masters Circle agenda, which has been endorsed and embraced by the ANA Board of Directors and the Global CMO Growth Council. The ANA's membership consists of more than 1,600 domestic and international companies, including more than 1,000 client-side marketers and nonprofit fundraisers and 600 marketing solutions providers (data science and technology companies, ad agencies, publishers, media companies, suppliers, and vendors). Collectively, ANA member companies represent 20,000 brands, engage 50,000 industry professionals, and invest more than $400 billion in marketing and advertising annually.