As previously covered on this blog, the City of San Francisco passed legislation in June 2015 that required health warnings to be placed on advertising for sugar-sweetened beverages (i.e., nonalcoholic beverages with caloric sweeteners that contain more than 25 calories per 12 oz.).  Specifically, the warning would have read:  “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.”  In July 2015, trade associations filed a lawsuit challenging the legislation on First Amendment grounds.

On Tuesday, September 19, 2017, the U.S. Court of Appeals for the Ninth Circuit enjoined enforcement of San Francisco’s sugar-sweetened beverage warning ordinance. The Court in American Beverage Assn. v. San Francisco held that requiring advertisers to include the controversial warning violates their First Amendment rights not to be compelled to convey the government’s message.

In issuing the preliminary injunction, the Court stated that the warning is “not purely factual” and “unduly burdens and chills protected commercial speech.” The Court also cited U.S. Food and Drug Administration (FDA) guidance that says added sugars “can be part of a healthy dietary pattern when not consumed in excess amounts.”

Looking ahead, it remains to be seen what, if any, impact the outcome of this lawsuit will have on the appetite of other U.S. jurisdictions to pursue similar legislation.