Court Slams Brakes On San Francisco’s Mandatory Warnings On Soda Ads

Image courtesy of Patrick

Only a few weeks ago, a federal court refused to halt a new San Francisco ordinance requiring soda companies to place warnings on all their ads in the city, but today that same court decided to grant a temporary injunction preventing the rule from kicking in while the beverage industry appeals its case.

For those coming late to this story, last summer San Francisco’s city council decided that ads for soda and other sugary drinks contain warnings about the potential health problems — obesity, tooth decay, diabetes — associated with eating too much sugar.

The ordinance, which mandates that the warning must occupy 20% of the space in an ad, was scheduled to go into effect July 25, but a lawsuit filed by the American Beverage Association, the California Retailers Association, and the California State Outdoor Advertising Association, has been challenging the rule, claiming it violates the First Amendment.

In seeking an injunction to prevent the ordinance from being enforced, the plaintiffs argued that the warning will be so significant that it will itself be the focus of the ad, and that the remaining space in the ad would not suffice to counter the warning.

However, the judge in the case was not won over by this line of argument, pointing out that the warning was text only and unlikely to detract from the pictorial portion of the ads, which he believed leaves ample space for the advertisers to advertise.

“Not only is 80% of the space available, Plaintiffs have shown that they have employed pithy advertising on how to achieve balanced diets and lifestyles,” explained the judge in shooting down their injunction request in May.

The court denied that injunction because the judge concluded that the plaintiffs were unlikely to ultimately succeed. So why did he agree this morning to grant the injunction while the plaintiffs file their appeal?

In explaining his decision [PDF], the judge writes that he still believes he ruled correctly on the injunction request, but acknowledges that some of the issues at the core of this case have yet to be decided by the appellate court, like whether the government can compel a warning or disclosure when the government interest doesn’t involve a matter of consumer deception, but one of public health and safety.

The judge also mentioned a possible concern over the mandated size of the warning as somethign that the appeals court might need to resolve.

Because he expects the appeals court to quickly review and resolve the appeal, the judge also didn’t see the harm in granting the injunction even though he’d just recently denied it.

The city had argued that the injunction pending appeal should be denied because the plaintiffs’ preliminary injunction request had been denied, and that the plaintiffs “must make an ‘even stronger showing’ that they will succeed on the merits than they did in their preliminary injunction motion.”

However, the judge counters that this would mean that “a party who is denied a preliminary injunction … could never get an injunction from the district court pending appeal.”

Obviously, the American Beverage Association is pleased with today’s ruling.

“Granting our motion for an injunction pending appellate review means that this discriminatory ordinance will not go into effect next month,” reads a statement from the ABA. “We continue to believe that the City of San Francisco’s mandate violates the constitutional rights of a select group. It unfairly discriminates against one particular category of products, based on one ingredient found in many other products.”

The case now moves on to the Ninth Circuit Court of Appeals.

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