On Thursday, January 31, 2019, the United States Court of Appeals for the Ninth Circuit published its en banc opinion in American Beverage Association v. City and County of San Francisco, No. 16-16072 (9th Cir. 2019), reversing and remanding the district court’s denial of a preliminary injunction. The Ninth Circuit found that a San Francisco ordinance mandating warnings regarding the health effects of sugar sweetened beverages likely violated the First Amendment.
In the lower courts, the American Beverage Association sought an injunction against the San Francisco ordinance. The ordinance requires that advertisements for sugary drinks including a warning, with specific mandates as to form, content, and placement of the warnings on advertisements. The ordinance also requires that warnings on advertisements be set off with a rectangular border and occupy at least twenty percent of the advertisement. A panel for the Ninth Circuit had also found the ordinance likely in violation of the First Amendment.
In deciding the level of scrutiny applicable to situations where the government compels speech in a commercial setting, the en banc court relied on the test in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985). The Ninth Circuit previously applied the Zauderer test in CTIA Wireless Ass’n v. City of Berkeley, No. 16-15141 (9th Cir. 2017), upholding a city law requiring cell phone providers to warn users about the potential exposure to higher-than-recommended levels of radiation. The United States Supreme Court, in National Institute of Family & Life Advocates (NIFLA) v. Becerra, 585 U.S. __ (2018), applied the Zauderer test to find that a California statute violated the First Amendment.
Judge Susan P. Graber, writing for the en banc court, found that the Supreme Court’s ruling in NIFLA did not suggest that the Ninth Circuit decided the CTIA Wireless Ass’n case incorrectly. As such, the Ninth Circuit applied the Zauderer test to the San Francisco ordinance and found that the mandated warning was unduly burdensome given the large size of said warning images. The district court’s denial of a preliminary injunction was reversed and the case was remanded.
Additional Reading
En Banc Ninth Circuit Finds Sugared Beverages Warning Violates First Amendment, Constitutional Law Prof Blog (February 1, 2019)
American Beverage Association v. City and County of San Francisco, No. 16-16072 (9th Cir. 2019)
