Federal Court Says San Francisco Can’t Require Health Warnings on Soda Ads

What the warning could have looked like.

A federal court has killed San Francisco’s controversial soda-ad warning labels, ruling in a unanimous decision yesterday that forcing brands to put them on advertising violates the First Amendment. In their decision, judges in the Ninth Circuit Court of Appeals argued that free speech gives soda-makers the right to say no to labels that aren’t “clearly factual.”

San Francisco’s ordinance was the first law in America that made soft-drink ads carry a notice about their health risks. It passed in 2015, and mandated very large warnings for soda ads on billboards, bus stops, or in any other public “surfaces” in the city. The warning had to be displayed prominently (sort of à la the surgeon general’s warnings on tobacco) and read: “Warning: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”

The Ninth Circuit judges argued that cigarette warnings are totally fine — the jury isn’t out about whether smoking causes cancer — but felt San Francisco’s label wrongly conveyed that “sugar-sweetened beverages are less healthy than other sources of added sugars.” Also, they said the warning was “deceptive in light of the current state of research.” Specifically, that its wording was at odds with the FDA’s, as that agency has declared that added sugars are “generally recognized as safe” and can even be “part of a healthy dietary pattern” if they aren’t consumed “in excess amounts.” Another problem they had was the label’s size: It had to occupy at least 20 percent of the ad. Four-fifths of a poster left advertisers “little room to communicate their intended message,” they argued. One judge added that the warning was “so large” that she couldn’t imagine how it wouldn’t “chill protected commercial speech.”

The original lawsuit was filed last year by the soda industry and outdoor advertisers so that they could get an injunction against the law, and now they’ve got it. A city spokesperson tells Reuters that they’re disappointed with the outcome, and will be “evaluating all options.”

Court Says San Francisco Can’t Put Warnings on Soda Ads