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Court Jolts Sugary Drink Warning Law in San Francisco

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By William Vogeler, Esq. on September 22, 2017 7:00 AM

'Smoking Causes Lung Cancer, Heart Disease, Emphysema, and May Complicate Pregnancy' -- Check.

"This product contains a chemical known to the State of California to cause cancer, birth defects, or other reproductive harm" -- Check.

"Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay" -- Wait, what?

That's what a federal appeals court said, too. Turning back a San Francisco ordinance that would require warning labels on soda advertisements, the appeals court said -- uh no.

Soda Pop Warning

San Francisco lawmakers were the first in the nation to impose the warning label on sugary drinks in 2015. Other cities, like New York, had tried to ban sodas altogether but failed.

In the City by the Bay, the campaign against soda turned into a federal case. The American Beverage Association and the California Retailers Association sued, saying the mandatory labels violated their free speech rights.

A federal judge denied their request for an injunction against the ordinance, but the U.S. Ninth Circuit Court of Appeals agreed with the beverage groups. The appellate court said the ordinance violated their rights to commercial speech.

"Because the ordinance is not purely factual and uncontroversial and is unduly burdensome, it offends the Associations' First Amendment rights by chilling protected commercial speech," the court said in American Beverage Association v. City and County of San Francisco.

"Controversial and Misleading"

Among other reasons for its decision, the Ninth Circuit panel said the proposed warning was not entirely true. The warning says that "drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay."

"This is contrary to statements by the FDA that added sugars are 'generally recognized as safe,' 21 C.F.R. § 184.1866, and 'can be a part of a healthy dietary pattern when not consumed in excess amounts,'" the majority said in reversing.

Judge D.W. Nelson concurred but said the majority did not need to make the "tenuous conclusion that the warning's language is controversial and misleading."

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