In June 2015, the San Francisco Board of Supervisors passed two sweeping ordinances concerning sugar-sweetened beverages designed to “inform the public of the presence of added sugars” and restrict certain advertising for these products.  The first ordinance requires warnings on certain advertisements for sugar-sweetened beverages to advise consumers about the “harmful health effects of consuming such beverages,” and authorize the Director of Health to impose penalties for noncompliance (“Warning Requirement”).  The second ordinance prohibits advertising of such beverages on City property, and requires the following warning label to be placed on ads on city billboards, buses, transit shelters, posters, and stadiums: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay” (“Advertising Ban”).

Understandably, the American Beverage Association filed a First Amendment challenge against the City for the two ordinances, as well as a preliminary injunction requesting that the court stay the Advertising Ban, which would have become effective July 25, 2015.  Specifically, the ABA alleged that the Warning Requirement: (1) constitutes the type of content-based discrimination to which courts have applied a heightened scrutiny; (2) does not directly and materially advance the City’s interest because it contains a number of exemptions that undermine the mandate; and (3) is unduly burdensome.

In addition, the ABA alleged that the Advertising Ban on City property: (1) constitutes viewpoint discrimination, since the City is prohibiting speech on certain subjects on public property, but allowing other directly contrary speech to occur; (2) constitutes discrimination based on identity under certain circumstances because it prohibits (with limited exceptions) any use of a company’s name in advertisements if that company produces a sugar-sweetened beverages; and (3) constitutes an unconstitutional prior restraint on speech, since it prohibits covered entities from utilizing their names in some public places.  On August 25, the City asked the court to enter a stipulation and order stating that it agreed not to enforce the Advertising Ban while ABA’s suit was pending.

On December 1, the Board of Supervisors unanimously voted to repeal the Advertising Ban, saying that the repeal was prompted by the U.S. Supreme Court’s recent decision in Reed v. Town of Gilbert, Arizona, striking down a similar content-based speech restriction.  In Reed,  the municipal code imposed more stringent restrictions on signs directing the public to a church than on signs conveying other messages.

Despite the repeal of the Advertising Ban, the Warning Requirement is still at issue.  The ABA’s constitutional challenge of the Warning Requirement is still pending in federal court.