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San Francisco soda health warnings violate First Amendment by forcing manufacturers to denigrate their own products, says WLF

By Elaine Watson contact

- Last updated on GMT

WLF: San Francisco soda warnings violate First Amendment
The Washington Legal Foundation (WLF) has urged the US Court of Appeals for the Ninth Circuit to stop enforcing a San Francisco ordinance requiring sugary drink ads to include health warnings, on the grounds that they violate manufacturers’ First Amendment rights “not to be compelled to convey the government’s message."

The ordinance - which went into effect on July 25 - requires outdoor ads (but not TV/radio ads or food labels or menus) for selected sugar sweetened beverages to state: ‘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.’ ​ 

And this, argues the WLF, a non-profit that supports commercial speech rights, amounts to “constitutionally impermissible​” compelled speech because it is forcing manufacturers “at their own expense, to convey an objectionable message, and by interfering with their ability to convey their own message.

“The First Amendment protects not only the right to speak but also the right not to speak.”

WLF: There’s no evidence that moderate soda consumption is unhealthy

In an August 4 amicus brief supporting the American Beverage Association (ABA), the California Retailers Association, and the California State Outdoor Advertising Association (which are challenging the ordinance on first amendment grounds), the WLF added:  “All agree that drinking excessive amounts of beverages with added sugars is bad for one’s health, as is consuming excessive amounts of any food containing sugar (or for that matter, consuming excess calories period).

“But there is no scientific evidence that moderate consumption of sugar sweetened beverages is bad for one’s health, a point that the district court did not dispute.”

If San Francisco wants to give consumers additional information about sugar-sweetened beverages, “it is free to do so on its own nickel,” ​added WLF chief counsel Richard Samp.

US legal landscape 2
The ordinance applies to non-alcoholic beverages containing caloric sweeteners contributing to more than 25 calories per 12 ounces of beverage, not including milk, milk alternatives and 100% fruit and vegetable juice.

“The Court should reverse the district court’s denial of Appellants’ motion for a preliminary injunction.”

Judge Chen: Soda health warnings are reasonably related to San Francisco’s interest in public health and safety

In a May 17 order​, U.S. District Judge Edward Chen refused to block the ordinance, and said warning that sugary drinks “contribute to tooth decay is reasonably related to the city’s interest in public health and safety.”

Michael Jacobson, president of health advocacy group the Center for Science in the Public Interest (CSPI), meanwhile, said Judge Chen’s decision amounted to “a major step forward in public health efforts to combat diabetes, obesity, tooth decay, and other soda-related diseases.”

The case is American Beverage Association et al. v. City and County of San Francisco, case number 3:15-cv-03415 in the U.S. District Court for the Northern District of California.

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Is the food industry acting in consumers' best interests? Join the debate at Food Vision USA 2016 ​in Chicago on November 9-11 where delegates will hear from Dr Margo Wootan​, director of nutrition policy at Washington DC based health advocacy group the Center for Science in the Public Interest (CSPI).

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