Following a May 2016 refusal to invalidate a San Francisco regulation requiring warning labels on sugar-sweetened beverages (SSBs), a California court has granted an injunction on enforcement pending appeal. Am. Beverage Ass’n v. City of San Francisco, No. 15-3415 (N.D. Cal., order entered June 7, 2016). Details on the May 2016 decision appear in Issue 605 of this Update, while additional information on the lawsuit appears in Issues 573, 586 and 592.
The ordinance, set to take effect July 25, 2016, requires billboards and other public advertisements to include a warning that “[d]rinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay.” The American Beverage Association (ABA) challenged the regulation on First Amendment grounds, but the court denied a preliminary injunction, finding the industry group’s claims unlikely to succeed. “[A]n injunction pending appeal may be appropriate, even if the Court believed its analysis in denying preliminary injunctive relief is correct. This is such a case,” the court noted in its decision granting the injunction. “In addition, there is a good chance that the injunction pending interlocutory appeal will be relatively brief because the appeal will likely be resolved on an expedited basis (given Ninth Circuit Rule 3-3, which allows for expedited briefing on preliminary injunction appeals and thus the hardship to the City may be limited).”
In a separate order, the court granted a joint motion to dismiss the ABA’s constitutional claims related to the portion of the ordinance banning SSB advertising on city property, which has since been overturned.