'The First Amendment forbids the government from compelling private speakers to express the government’s views:' ABA

Soda industry sues San Francisco over sugary drink warnings

By Rachel Arthur contact

- Last updated on GMT

San Francisco recently passed legislation on sugar-sweetened beverage advertising
San Francisco recently passed legislation on sugar-sweetened beverage advertising
The American Beverage Association (ABA) is suing San Francisco over mandatory warning labels on soda advertisements, saying the rules violate the First Amendment. 

The City and County of San Francisco has recently passed legislation requiring adverts for sugar-sweetened beverages to include a warning about their “harmful health effects”.

But the ABA, along with The California Retailers Association and California State Outdoor Advertising Association, says this means private speakers (who may hold differing views) are forced to recite the City’s value judgement.

‘The city’s controversial and misleading opinion’

“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.”

Sugar-sweetened beverage advertisements' warning label

While the ABA accepts the city is free to run campaigns on health concerns around sugar-sweetened beverages, it says the city has gone too far: trying to “ensure that there is no free marketplace of ideas, but instead only a government-imposed, one-sided public ‘dialogue’ on the topic”.

The ABA adds the warning labels do not acknowledge dietary recommendations which say that sugar-sweetened beverages may be consumed as part of a healthy diet and lifestyle.

It is also concerned that the labels single out beverages while other sugary foods are not required to carry a warning.

In June San Francisco’s Board of Supervisors passed an amendment to its health code​, requiring advertisements for sugar-sweetened beverages to include a warning about “the harmful health effects of consuming such beverages.”

Under the legislation adverts must carry the message: “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.”

‘Zealous views’

Filed on Friday, the lawsuit says: “At its very core, the First Amendment forbids the government from suppressing private speech that it disagrees with, and equally forbids the government from compelling private speakers to express the government’s views.

“The City has banned certain advertising and required on other advertising a warning label that is misleading—and, at a minimum, disputed and controversial. The ordinances reflect the City’s opinion that sugar-sweetened beverages have little or no value, and its value judgment that there is no place for them in a healthy diet and lifestyle.

“No matter how zealously the City holds its views, the First Amendment forbids the City from conscripting private speakers to convey them while suppressing conflicting viewpoints on this controversial topic.”

The complainants accept the city is free to express its views on sugar-sweetened beverages.

“It [the City] may, for instance, sponsor its own advertising campaign promoting those opinions,” ​the lawsuit continues. “Alternatively, it could subsidize programs that promote what the City considers to be a healthy diet.

“Instead, the City is trying to ensure that there is no free marketplace of ideas, but instead only a government-imposed, one-sided public “dialogue” on the topic—in violation of the First Amendment.”

“The Warning Mandate requires private speakers to convey, regardless of their own views, the City’s controversial and misleading opinion that certain beverages with added sugar are inherently hazardous, more harmful to consumers’ health than beverages with natural sugar or foods with added sugar, and uniquely responsible for increasing rates of obesity and diabetes.”

San Francisco has also said that advertisements cannot be used on publicly owned property or city funds used to purchase sugary drinks.

Part of a healthy lifestyle

The American Beverage Association is a trade association that represents hundreds of non-alcoholic beverage producers, distributors, franchise companies and support industries. Members include The Coca-Cola Company, PepsiCo and Dr Pepper Snapple.

It believes the soda warning label mandate is unfair because other sugary foods are not treated in the same way – thus implying that sugar-sweetened beverages are worse than any other products.

“It conflicts with the conclusions of respected health organizations such as the Academy of Nutrition & Dietetics, which have issued dietary recommendations concluding that sugar-sweetened beverages—like countless other foods and beverages, including pizza, cookies, apple juice, hamburgers, ice cream, and burritos—may be consumed as part of a healthy diet and lifestyle.

 “The City’s mandated warning nonetheless singles out sugar-sweetened beverages among all foods and beverages, and conveys the misleading and controversial view that they are hazardous in any quantity and more hazardous to health than any other food or beverage about which the City requires no warning.”

The case is: American Beverage Association, California Retailers Association, California State Outdoor Advertising Association; vs The City and County of San Francisco. Case number 3:15-cv-03415-EMC, filed July 24 2015.

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