A California federal court has denied the American Beverage Association’s (ABA’s) attempt to preliminarily enjoin the enforcement  of a law requiring manufacturers of sugar-sweetened beverages (SSBs) to provide a warning about the alleged health risks associated with SSB consumption. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered May 17, 2016). Further details about the lawsuit appear in Issues 573, 586 and 592 of this Update.

The court first assessed the ABA’s argument that the law would burden noncommercial speech in addition to regulating commercial speech, which would trigger the highest level of scrutiny. ABA members’ communications to consumers are not limited to commercial speech, the organization argued, because they also publicize other messages, such as promotion for the Pride Parade and the Chinese New Year’s Festival. The court  disagreed,  finding  the  amount  of  noncommercial  speech  affected was not substantial.

The court then reviewed whether the ordinance’s warning is factual  and accurate as required for government-compelled speech and found that the law would likely pass such an analysis. The court dismissed ABA’s challenge to the language of the required warnings, including the

message that SSBs “contribute” to tooth decay, obesity and diabetes; the ordinance “does not say that SSBs inevitably result in or will necessarily cause tooth decay,” the court noted. “No reasonable consumer would likely construe the warning as specific to him or her; instead, a reasonable consumer would understand the warning is directed to the general public and the statement that SSBs are a contributing factor is to be viewed in the larger context of public health.”

Finally, the court was not convinced that the warnings will cause irreparable harm to goodwill and reputation while the law is enforced. “Many consumers are likely to be familiar with the high sugar content of soft drinks and other SSBs, and many are aware of potential weight gain due to calories therefrom and risk of tooth decay,” the court stated. “And Plaintiffs  may  engage  in  counterspeech  to  combat  the  asserted  harm,  not only in the advertisement containing the warning itself but also through other  means  and  media.”  Further,  the  plaintiffs’  argument  that  delaying enforcement is in the public’s interest failed “because of the weakness of their First Amendment claim on the merits. Moreover, as indicated above, the public interest weighs in favor of the City, as the City is taking legitimate action to protect public health and safety.”