In past posts, we’ve characterized California as the “too much information” state. Under the everything-gives-you-cancer Proposition 65 law, even parking lots and coffee houses must post warning signs. San Francisco tried, and failed, to impose health warning signs at cellphone dealers. Undaunted, Berkeley passed its own cellphone warning ordinance this year, which faces a First Amendment challenge. And in the compelled speech spirit of those laws, Oakland has adopted an ordinance requiring builders to devote a certain square footage of new buildings to “public” art.
So it’s not surprising that San Francisco recently became the first city in America to require warnings on billboards and other media that promote “sweetened” beverages. Not content to simply compel speech, the Board of Supervisors also passed a sweeping ban on beverage advertising in certain city locales. The ordinances are so blatantly disrespectful of advertisers’ and consumers’ First Amendment rights, it’s not a question of whether a court will strike them down, but on which grounds it will do so.
Compelled speech. This ordinance mandates that businesses selling sugar-sweetened beverages must, at their own expense, print the following message on most display-type advertisements:
WARNING: Drinking beverages with added sugars contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.
The message must occupy 20% of the area of each ad. That amount, for instance, equals 134 square feet of a full-sized billboard. The ordinance exempts ads in newspapers, periodicals, advertising circulars, logos displayed at the point of purchase, and promotional materials presented on television and the Internet. It takes effect in July 2016.
On July 24, beverage, retail, and advertising trade groups filed suit against San Francisco over this ordinance and the speech ban. The warning mandate violates the First Amendment on numerous grounds, including:
- By singling out specific products and requiring the advertisers to print the city’s opinion regarding those products, the warning ordinance constitutes the type of content-based discrimination to which courts have applied heightened scrutiny in finding them unconstitutional.
- The warning communicates an absolutist perspective on a matter about which there is considerable controversy and debate; it is not merely informational. For that reason, a reviewing court would apply at least intermediate scrutiny. Under the Central Hudson test, the compelled speech mandate does not directly and materially advance San Francisco’s interest because it provides many exceptions that thoroughly undermine the mandate.
- Even if a court mistakenly applies the lowest level of First Amendment scrutiny under the Supreme Court’s Zauderer precedent, the ordinance would still be held unconstitutional because it is “unduly burdensome.”
Speech Ban. The aforementioned trade groups filed a preliminary injunction motion against the speech ban, which was scheduled to go into effect on July 25. On August 25, at the city’s request, the court entered a stipulation and order stating that San Francisco has agreed not to enforce the speech ban while the constitutional challenge is pending. On the merits of their challenge, the plaintiffs should prevail on any of their numerous constitutional arguments, which include:
- By prohibiting speech on certain subjects on public property, but allowing other speech, including directly contrary speech, San Francisco is engaged in viewpoint discrimination against speech in places that are at least limited public forums. While banning ads for soft drinks, for instance, the ordinance permits private or public speech on the alleged health hazards of such beverages.
- The ordinance prohibits not only advertisements of sweetened beverages, but also (with limited exceptions) any use of a company’s name if that company produces such products. San Francisco cannot possibly justify this discrimination based on a speaker’s identity even under the intermediate scrutiny that courts apply to commercial speech limits. At a minimum, the ban is far more extensive (and punitive) than necessary, under the Central Hudson test’s fourth prong, because it prohibits ads for non-beverage products. Starbucks, for instance, could not advertise its breakfast sandwiches in a public park because it offers beverages that fall under the ban’s definition of “sugar-sweetened beverage.”
- The ordinance also prohibits covered entities from even utilizing their names (separate and apart from the covered products) in some public places, which constitutes an unconstitutional prior restraint on speech. Covered businesses cannot sponsor a rally on public property against San Francisco laws such as the speech ban, or against the imposition of excise or “sin” taxes. They also can’t host political fundraisers or sponsor sporting events on city streets. The city cannot offer a compelling interest to justify this prohibition, let alone show it is addressing that interest in a narrowly-tailored fashion.
A Fruitless Exercise in “Doing Something.” As we’ve written about previously here, public health activists and regulators have chosen to single out sugar and other sweeteners as this decade’s nutrition bogeyman. Because beverages contain sweeteners and are products that such naysayers believe have no value, a product enjoyed by millions of consumers has been labeled a public enemy.
After neighboring Berkeley succeeded last year in taking an action against “Big Soda” that its own residents rejected—imposing a soda “sin” tax—San Francisco’s Supervisors likely felt they had to do something dramatic to demonstrate the city’s resolve in fighting obesity. Instead of attacking the products themselves, the Supervisors took aim at the messenger, and did so in a double-barreled manner with a warning mandate and a ban. The city will soon find out, however, that the Constitution does not permit such content- or viewpoint-based discrimination against speech, even when it is commercial in nature.
Apart from the ordinances’ constitutional infirmities, they represent public-health policymaking at its worst. Advertising bans and mandated warnings, especially ones as riddled with exceptions as San Francisco’s, have never proven successful at limiting product consumption. But they are far from innocuous—they give people the false impression that public officials are doing something useful about a perceived problem. In addition, public officials themselves become convinced they are helping, so they devote less or no time to pursuing actual solutions that could make a difference.
We trust that the federal courts will agree that these ordinances are an affront to the First Amendment. Whether America’s public health elites will learn anything from yet another such defeat remains to be seen.
Also published by Forbes.com on WLF’s contributor page.