I left my speech rights when I entered San Francisco

May 10, 2013 | By ANASTASIA BODEN

San Francisco city attorney Dennis Herrera has decided that Monster energy drinks are bad for you.  He’s also decided that Monster has to broadcast that message to its consumers.

Mere months after ending its battle with cell phone purveyors, the City of San Francisco is embroiled in another commercial speech fight.  This week, the Office of the City Attorney filed a complaint against Monster for allegedly failing to warn consumers about the risks of caffeine, and for associating its product with extreme sports, music, and scantily-clad Monster girls—purportedly meant to attract kids.

Readers may recall that the City was rebuffed by the Ninth Circuit when it tried to compel cell phone sellers to warn buyers of the dangers of cell phone emissions.  In a terse three-page unpublished opinion, the Ninth Circuit determined that the “factual statements” the City desired to compel were inaccurate and misleading.  While under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1986), the government may compel “purely factual and uncontroversial” information, the City conceded that there was significant scientific debate over the health effects of cell phones.  The City argued that it was only compelling purely factual information — pictures showing how to keep one’s head and reproductive organs away from cell phones to reduce exposure to emissions.  Nevertheless, the Court found that the City’s language and imagery implied the government thought cell phone exposure was dangerous.  Such an assertion, unfounded in science, was neither factual nor uncontroversial.

Many of these same issues are apparent in the Monster case.  Here, the health effects of caffeine are disputed.  For instance, a “grande” Starbucks coffee contains twice the caffeine as a 16 oz. energy drink—seemingly undermining the City’s claims that energy drinks are particularly harmful.  Further, the scientific literature indicates that caffeine intake should be based on weight, not age—undermining the City’s claims that these drinks are particularly harmful to teenagers.

The City wants to use Monster to broadcast its opinion that caffeine consumption at certain levels is dangerous, and particularly dangerous for children.  It would further restrict the company’s branding efforts—such as associating its product with extreme sports, music and gaming, military themes, “Monster girls,” and the like.  However, commercial speech rights enable businesses to contribute to public discourse by conveying information to the marketplace.  These rights allow businesses to differentiate themselves from others, and brand their products in the way they choose.

Of course, where there are legitimate risks, government may inform consumers of that risk.  But government may not compel businesses to circulate its message when that message is merely conjecture.