On Tuesday, an 11 judge en banc panel in the Ninth Circuit court in California heard argument as to whether a prior three-judge Ninth Circuit panel erred in blocking a San Francisco ordinance requiring health warnings on sugary drinks. Under the ordinance, the warning must be framed by a rectangular border and fill up at least 20 percent of advertisement space. The rule applies to non-alcoholic beverages containing caloric sweeteners of more than 25 calories per 12 ounces of beverage, but excludes milk, milk alternatives and 100 percent natural fruit and vegetable juice. The law requires advertisements for sugar-sweetened drinks sold in San Francisco to include the following statement: “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.”

A prior three judge en banc panel found that elements of the mandated warning — a black box that overwhelmed other visual elements of the ad — unduly burdened and chilled protected speech. In addition, a Ninth Circuit panel found that the warning sent a message that sugar-sweetened drinks contribute to obesity and diabetes, regardless of the quantity consumed or other lifestyle choices, contrary to statements from the U.S. Food and Drug Administration that added sugars are generally recognized as safe and can be part of a healthy dietary pattern when not consumed in excess.

The city of San Francisco argued that local government entities have the authority to conduct public health campaigns to warn the public of potential health risks, including requiring specific labels on certain foods. The city argued that the label notifies consumers that sugary drinks can pose health risks. The size of the warning, they argue, must be large enough to catch the attention of the consumer, noting that the U.S. Congress has previously found that smaller warnings are easily overlooked by consumers. 

The American Beverage Association argued that the labels are unduly burdensome with a size requirement that is too large and that negatively influences how customers perceive advertisements about certain products, like soda, thereby violating corporate free speech rights under the First Amendment. In addition, the Association argued that the warning is misleading, in that it leads consumers to think that sugary drinks alone contribute to health problems like obesity and diabetes. The labels, the Association argued, are overbroad in that they do not address other factors of obesity, such as over-consumption and other lifestyle choices. Further, the warning does not differentiate between Type 1 and Type 2 diabetes, which are affected by sugar in different ways.

The panel took the matter under consideration.

CMBG3 Law LLC has represented clients in products liability matters, including necessity and adequacy of warnings, for many years. If you have any questions or would like more information, please contact John Gardella (email him or 617-279-8225).