An en banc ruling by the Ninth Circuit Court of Appeals ruled in favor of beverage companies seeking to get an injunction on the ordinance passed in 2015 by the City and County of San Francisco (CCSF), requiring 20 percent of a soda label to show a black-box warning that reads: “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.”
Though the eleven member panel disagreed on exactly why they favored imposing the injunction, they all agreed that the three member panel of the Court of Appeals was incorrect in denying the injunction, since they believed it was entirely possible that the soda companies may ultimately win the case in overturning the ordinance, and therefore compelling them to follow the law would place an undue burden and irreparable harm on them. Now the case will be sent back to the district court to be decided on its merits.
Soda Warning Has Seen a Lot of Court Time in San Francisco
Back in 2015, the Board of Supervisors unanimously passed an ordinance requiring all soda in San Francisco to carry this black-box warning. According to Supervisor Scott Weiner, “Requiring health warnings on soda ads also makes clear that these drinks aren’t harmless — indeed, quite the opposite — and that the puppies, unicorns, and rainbows depicted in soda ads aren’t reality.” Weiner added, “These drinks are making people sick, and we need to make that clear to the public.” But beverage companies allege that forcing companies to place this sort of warning on their products violates their first amendment right to commercial free speech.
The district court sided with the beverage companies and issued an injunction, but the Ninth Circuit Court of Appeals overturned that injunction. The en banc panel of the Ninth U.S. Circuit Court of Appeals, in siding with the beverage companies, stated that CCSF had not made an effective case that the 20 percent rule was necessary “when balanced against its likely burden on protected speech.”
Ordinance Viewed as a Litmus Test for Various Similar Ordinances
This case has high visibility for various other jurisdictions interested in carrying a similar warning, not only on soda, but also on e-cigarettes and other such popular consumer goods viewed as harmful to public health. But jurisdictions, and consumer product companies, really haven’t been told where the balance is between protecting the public’s health and the right to first amendment speech, which are both monumental rights.
In reaching its unanimous decision, the justices had very different means to justify the same ends. Some squabbled over the 20 percent, and insinuated 10 percent may be acceptable. Others thought there was no factual basis for claiming sugar causes diabetes. Therefore it will be very interesting to hear how this case is judged on its merits, rather than just procedural processes.