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Health warnings on soda in San Francisco must be smaller than proposed, court says

A young girl sips a bottle of Pepsi. A federal appeals court struck down a San Francisco law mandating health warning labels on soda advertisements.
A young girl sips a bottle of Pepsi. A federal appeals court struck down a San Francisco law mandating health warning labels on soda advertisements. Bloomberg

The U.S. Ninth Circuit Court of Appeals on Thursday struck down a San Francisco law mandating that soft drink advertisements come with health warning labels, prompting the law’s author to vow, “This fight isn’t over.”

California State Sen. Scott Wiener, D-San Francisco, wrote the ordinance requiring the health warning labels when he was a San Francisco supervisor.

The court ruled in favor of the plaintiffs, which included the powerful American Beverage Association lobbyist group, to issue a preliminary injunction to suspend the law.

The ruling called the ordinance, which would require a warning label taking up 20 percent of a drink’s packaging, “unjustified or unduly burdensome,” determining it would run counter to the First Amendment’s commercial speech protections.

The court emphasized it was not ruling on the merits of a health warning label, but rather that the San Francisco Board of Supervisors failed to present convincing evidence to justify a label that large, which would be similar to warnings on tobacco products. The court suggested a warning taking up 10 percent of the packaging might be legal.

“While I’m disappointed by the Ninth Circuit’s decision — including the continued dangerous theory that huge corporations have essentially the same First Amendment rights as people — I’m optimistic our soda health warning ordinance can be amended to pass judicial muster,” Wiener said in a statement.

Wiener said he urged the Board of Supervisors to amend the ordinance “to comply with the court ruling, so that we can ensure consumers have accurate information about sugary drinks and their significant negative health impacts.”

In a statement released following the decision, the American Beverage Association wrote, “We are pleased with this ruling, which affirms there are more appropriate ways to help people manage their overall sugar consumption than through mandatory and misleading images.”

The statement also noted that “nearly half of the beverages our industry sells today contain no calories and ... we’ve put clear calorie information on the front of every bottle, can and package we sell to encourage consumers to check calories before they buy.”

Wiener said soda is the problem, not the solution.

“The facts and science are clear: Soda and other sugary drinks are the largest source of sugar in the American diet one can of soda has a whopping 10 teaspoons of sugar — and they are making people sick,” Wiener said.

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Andrew Sheeler covers California’s unique political climate for McClatchy. He has covered crime and politics from Interior Alaska to North Dakota’s oil patch to the rugged coast of southern Oregon. He attended the University of Alaska Fairbanks.