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American Beverage Ass’n v. City and County of San Francisco

In these companion cases in the U.S. Court of Appeals for the Ninth Circuit, the soda, grocery and advertising industries challenge a San Francisco ordinance requiring advertisements for high-calorie, sugar-sweetened beverages to contain warnings stating: “Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The industry associations challenging the law assert that it violates their First Amendment rights. Their arguments, if accepted, would be threaten the ability of governments at all levels to require health warnings and other disclosures in advertising, product labels, and other forms of commercial speech.

A federal district court denied the challengers’ motion for a preliminary injunction against the law, and the industry plaintiffs’ appealed. Pending the appeal, the law has been temporarily stayed. Public Citizen filed an amicus curiae brief supporting the City’s position that warning and disclosure requirements such as the one imposed by San Francisco are subject to lenient judicial review and do not violate the First Amendment.

On September 19, 2017, a panel of the Ninth Circuit struck down the statute. Although agreeing with Public Citizen’s position that disclosure requirements directed at public health concerns are subject to the same lenient standard of review applicable to disclosure requirements aimed at preventing misleading commercial messages, the panel held that San Francisco’s warning could not be sustained under that standard because it was not purely factual and uncontroversial. San Francisco filed a petition for rehearing en banc, and Public Citizen filed an amicus brief supporting rehearing.

The court granted the petition for rehearing en banc. In the wake of the Supreme Court’s decision in NIFLA v. Becerra, the court held that commercial speech disclosure requirements relating to health and safety remain subject to a relatively relaxed standard of review, but that the court was nonetheless compelled to conclude that the disclosure requirement was unduly burdensome.