Free Speech Victory on Warning Labels

By Ken Klein, EVP of Government Affairs for OAAA

In a First Amendment victory, a federal appeals court ruled against San Francisco’s required warning labels on advertisements for sugary drinks (September 19).

The California State Outdoor Advertising Association challenged the city ordinance, along with the American Beverage Association and the California Retailers Association.

The US Ninth Circuit Court of Appeals “found that San Francisco’s mandatory warning disclosure is inaccurate, misleading and unduly burdensome,” said attorney Joshua D. Dick of Gibson Dunn, an attorney for the state billboard association.

”As such, it agreed that a preliminary injunction of the ordinance is appropriate.  The case will now be sent back to the district court for further proceedings.  It is important to note that this was resolved at the preliminary injunction stage, and it is possible that San Francisco will want to continue to litigate the case and try to take it to trial.  However, given the Ninth Circuit’s holdings, this will be an uphill battle for the City.”

A preliminary injunction is an extraordinary remedy awarded when plaintiffs present a clear showing they are entitled to such relief.

Background

San Francisco enacted an ordinance in 2015 mandating advertisements posted in the city for sugar-sweetened beverages include:

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.

The ordinance included detailed instructions on form, content, and placement of the warning (20 percent of the advertisement and set off in a rectangular border).

The federal appeals court said a black-box warning label that overwhelmed other visual elements of ads would chill protected speech.

As other jurisdictions consider warning labels, the San Francisco litigation was a closely-watched case.  The national association for the beverage industry was lead plaintiff.  The Outdoor Advertising Association of America assisted by providing information on economic impact, labels, and protection of free speech.

 

 


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