American Beverage Association v. City and County of San Francisco

San Francisco’s tactics in its war on soda violate the First Amendment

Cases > Freedom of Speech and Association > American Beverage Association v. City and County of San Francisco
Active: Litigation is ongoing.
Case Court: Ninth Circuit Court of Appeals

A San Francisco ordinance requires advertisements related to sugar-sweetened beverages to devote 20% of the space to city-specified speech: “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.” A coalition of beverage trade associations sued the city for violating their First Amendment right not to be forced to express messages with which they disagree. The district court upheld the ordinance and the coalition appealed. PLF filed an amicus brief in the Ninth Circuit arguing that the ordinance must be subjected to heightened scrutiny and fails to pass constitutional muster.

San Francisco’s “soda ordinance” forces advertisers of “sugar-sweetened beverages” to broadcast the government’s opinion that such beverages uniquely contribute to a variety of health problems. The advertisers must include the government’s message regardless of whether the ad promotes the product or announces a community service initiative. Thus, beyond communicating information about nutritional content, the warning labels the advertisers as a group to be shamed and shunned. A group of trade associations sued the city because this coercive speech violates their First Amendment rights. The district court rejected that challenge, holding that the ordinance was subject only to “rational basis” review under a Supreme Court case that applies when the government seeks to prevent deception of consumers, and that the ordinance survived that minimal level of scrutiny.

On appeal in the Ninth Circuit, PLF filed an amicus brief arguing that San Francisco’s ordinance is not directed as preventing any deception of consumers – the city asserts that it seeks to further public health – and therefore should be reviewed under the “intermediate” standard usually applied in matters involving commercial speech. Under that standard, the court should invalidate the ordinance for three reasons. First, the ordinance’s exemptions undermine the city’s stated purpose of benefiting the public health, strongly suggesting that the mandate is a thinly veiled attempt to silence disfavored speakers. Second, because the government can communicate its favored message through its own advertisements, rather than compelling others to advertise on its behalf, the ordinance burdens far more speech than is necessary to further the city’s objectives. Finally, the government-mandated language may itself mislead consumers by implying that added sugar is more dangerous than naturally-occurring sugar, thus lulling consumers into thinking that products with exponentially higher amounts of naturally occurring sugars are more nutritious.

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What’s at stake?

  • The government cannot force a manufacturer to broadcast the government’s opinion, which in turn distorts the manufacturer’s own message in the same advertisement.
  • If the city prevails, then the government can compel a private party to broadcast controversial government viewpoints alongside the speaker’s own message as a price for speaking. This consequence either distorts the speaker’s message or deters speakers from expressing themselves at all.

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