So Sweet, So What?: Ninth Circuit Denies SSB Warning and Scientific Research

Some people like starting off their morning with a cup of coffee; later in the day, they may transition to sweetened waters or energy drinks, or maybe pair dinner with a soda, and then finally unwind with a cup of tea before bed. What many people do not realize is that the calories go down as easily as those tasty drinks do.

Health.gov reports that beverages account for almost 20 percent of Americans’ total calorie intake. The Center for Disease Control Prevention (CDC) states that sugar-sweetened beverages (SSBs), which include regular soda; fruit drinks; sports drinks; sweetened waters; and coffee and tea beverages with added sugars, are associated with obesity, type 2 diabetes, heart disease, kidney diseases, non-alcoholic liver disease, tooth decay and cavities, and gout.

In an effort to address and combat the myriad of serious health issues linked to the consumption of SSBs, San Francisco enacted S.F. Health Code §§ 4200-206, which would have required advertisements for SSBs to bare a warning message:

“WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message for the City and County of San Francisco.”

The warning applied to SSB advertisements posted on billboards, structures, or vehicles that identify, promote, or market SSBs. The ordinance included a requirement that the warning occupy 20 percent of the respective advertisements in question and be set off with a rectangular border. Moreover, failure to comply with the ordinance’s warning requirements resulted in administrative penalties imposed by San Francisco’s Director of Health.

American Beverage Association, California Retailers Association, and the California State Outdoor Advertising Association (the Associations) joined suit and challenged the City and County of San Francisco for violating their First Amendment right to freedom of speech. On September 17, 2017 the Ninth Circuit reversed the district court’s denial of the Associations’ motion for preliminary injunction of San Francisco’s ordinance. The three-judge panel held that free speech includes the right of advertisers to refuse to convey warnings about their products, except when the warnings are clearly factual.

Judge Ikuta, who authored the opinion, applied the Zauderer First Amendment standard for disclosures in the context of commercial speech, and explained that—among other reasons—the San Francisco ordinance failed the “factual and noncontroversial” factor. She further reasoned that the warning did not encompass other high-sugar content products.

However, this basis is problematic considering all the scientific research and data posing real numbers of the issue SSBs are, specifically for youth. The Institute of Food Technologists (IFT) reports that

almost two-thirds of children in the United States consumed at least one sugary beverage on any given day—and roughly 30 percent consumed two or more a day—between 2011 and 2014.

Furthermore, the CDC highlights several biological mechanisms that have been proposed to explain the relationship between SSB consumption and obesity: first, when calories are consumed as liquids, people may not subsequently compensate their energy intake, resulting in extra consumption energy intake, resulting in extra consumption energy; second, the prompt drop in blood sugar that follows the insulin response to intake of foods or beverages high in sugars, such as SSBs, increases hunger and may increase food intake; third, fructose does not activate hormones that help regulate satiety, which can result in not feeling full after consuming energy from SSBs.

Additionally, the argument that the SSB warning ordinance failed to extend to other products with equal or greater amounts of added sugars violates the precedent established in Railway Express Agency, Inc. v. New York, which primarily held that a law can prohibit some harms of a certain type without prohibiting all of them. Similarly, the City and County of San Francisco should not be required to prevent all potential high-sugar products.

It is clear that San Francisco’s SSB warning ordinance has First Amendment, commercial advertisement, free speech implications. However, to dismiss all the data and scientific research conducted and argue that sugar-sweetened beverages do not link to health risks is almost as absurd as denying the existence of climate change.