Hunton Retail Law Resource

On January 30, 2019, the US Court of Appeals for the Ninth Circuit issued a unanimous 11-judge opinion striking down San Francisco’s ordinance mandating health warnings on ads for sugary drinks. The judicial panel found that San Francisco’s proposed law violated beverage companies’ First Amendment rights to free speech.

The proposed law at issue required advertisements for non-alcoholic drinks containing more than 25 calories of sweetener per 12 ounces of beverage to contain the statement, framed by a rectangular border and filling at least 20 percent of the advertisement’s space: “WARNING: Drinking beverages with added sugar contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”

The court found that the city failed to show that (1) the warnings would not drown out advertising messages or (2) the 20 percent requirement was justified when balanced against its likely burden on protected speech. The court did acknowledge that it could uphold other disclosure requirements that might be better supported or less burdensome, leaving open the possibility of revisions to the ordinance.