Ninth Circuit gearing up to rehear San Francisco soda warning label case

By Karen Kidd | Mar 9, 2018

SAN FRANCISCO (Northern California Record) — A federal appeals court is preparing to give San Francisco another shot at enforcing its ordinance requiring large warning labels in sugary drink advertisements. The ordinance is opposed by beverage retailers who allege it violates their First Amendment rights to free speech.

SAN FRANCISCO (Northern California Record) — A federal appeals court is preparing to give San Francisco another shot at enforcing its ordinance requiring large warning labels in sugary drink advertisements. The ordinance is opposed by beverage retailers who allege it violates their First Amendment rights to free speech.

The U.S. Ninth Circuit Court of Appeals has not yet placed the now en banc case on its calendar but it is scheduled to be submitted during the week of March 19, according to information on the court's website. The court agreed more than a month ago to reconsider its injunction issued last fall against the San Francisco ordinance that requires the health warning labels comprise 20 percent of a sugary drink advertisement.

The warning labels are opposed by the American Beverage Association, and the California Retailers Association and the California State Outdoor Advertising Association filed suit about a year before the ordinance was supposed to take effect.

In its order handed down Jan. 29, the appeals court announced "a majority of nonrecused active judges" had voted to rehear the case en banc, meaning a far greater number of judges will take the bench than the usual three-judge panel. Judge Jay S. Bybee did not participate in the deliberations or the vote to reconsider, according to the order.

The January order followed the appeals court's September's opinion in favor of the beverage retailers, who appealed a district court judge's denial of their motion for an injunction in May of the previous year.

The San Francisco ordinance, originally supposed to take effect in July 2016, would require sugary drink advertisements to include a large white box with a black border around the words: "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 beverage retailers became plaintiffs in the case, filing suit in July 2015 alleging the San Francisco ordinance violated their First Amendment rights by forcing them to include a warning label that they otherwise would not incorporate into their advertisements. Later that fall the beverage retailers filed their motion for a preliminary injunction to stop San Francisco from enforcement of its ordinance while the matter was being litigated.

In May 2016, U.S. District Court Judge Edward M. Chen denied the beverage retailer's motion. Chen said the retailers were "not likely to succeed on the merits of their First Amendment claim and it is unlikely that they would suffer irreparable harm if the ordinance were to go into effect. Even if plaintiffs had established serious questions going into the merits, balancing of hardships does not tip sharply in their favor."

The beverage retailers appealed to the Ninth Circuit, which handed down its opinion in September reversing Chen's denial, concluding "that the district court abused its discretion in denying the Associations’ motion for a preliminary injunction."

In her concurrence with the appeals court's opinion, Senior Circuit Judge Dorothy Wright Nelson wrote that the San Francisco ordinance, "in its current form", likely does violate the First Amendment because the labels are so large "that it will probably chill protected commercial speech,"

"While I do not understand the majority’s opinion to state that no properly worded warning would pass constitutional muster, I agree that the city has not carried its burden in demonstrating that the 20 percent requirement at issue here would not deter certain entities from advertising in their medium of choice," Nelson said in her concurrence. "Because this case can be disposed of on this question alone, I would reverse and remand without making the tenuous conclusion that the warning's language is controversial and misleading."

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American Beverage Association U.S. Court of Appeals for the Ninth Circuit U.S. District Court for the Northern District of California

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