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

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.