• by Thom Forbes  @tforbes, February 1, 2019

In an 11-0 vote, a federal appeals panel yesterday ruled against a San Francisco ordinance that would require beverage marketers to devote 20% of their display advertisements for sugary beverages to a warning that the drinks increase the risks for obesity, diabetes and tooth decay. 

The ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco granted a preliminary injunction preventing the law, which was passed by the city’s board of supervisors in 2015, from taking effect. The judges said the warnings would “offend plaintiffs’ First Amendment rights by chilling protected speech.”

A three-judge panel of the circuit court blocked the law in 2017. The entire 11-judge panel agreed last year to rehear the case.

Throwing a bone to health advocates, “the judges wrote on Thursday that the city ‘may be commended for aiming to address serious and growing public health problems.’ But they agreed that beverage companies were likely to suffer irreparable harm if the law went into effect because the warnings would drown out the ads’ main messages,” the AP’s Christopher Weber and Sudhin Thanawala report. 

“This decision is solely about the size of the warning label,” said John Coté, a spokesman for the city attorney’s office. “The court found that 20% is too large, but suggested 10% would be sufficient,” reports Dominic Fracassa for the San Francisco Chronicle.

“The court did not say whether the 10% size was valid or invalid, but reiterated that the city had not justified the 20% requirement,” Fracassa observes.

“We’re evaluating our next steps in light of this decision. But make no mistake -- we’re committed to protecting the health of San Francisco residents by allowing them to get factual information,” Coté said.

But “the court also determined the city’s warning that consumption of sugary drinks can lead to obesity and other diseases wasn’t based on established fact -- citing statements by the Food and Drug Administration that sugars are ‘generally recognized as safe’ when not consumed to excess,” Jim Carlton points out for the Wall Street Journal.

“The American Beverage Association, which represents Coca-Cola, PepsiCo and others, joined retail and advertising organizations to argue in court that the ordinance should be blocked,”  Samuel Chamberlain reports for FoxNews.com. 

“‘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 messages,’ the beverage association said in a statement. It added that it hopes to work with public health groups in San Francisco on helping residents make informed decisions about their diets,” Chamberlain adds.

“The San Francisco ordinance is part of a national effort to curb consumption of soft drinks and other high-calorie beverages that medical experts have said are largely to blame for an epidemic of childhood obesity,” Reuters’ Tina Bellon writes.

“Over the past years, many U.S. localities have imposed taxes on sugary beverages, adding a surcharge of up to 1.75 cents per ounce (29 milliliters). At that rate, the cost of a typical 12-ounce can of soda would rise by 21 cents. The beverage industry has opposed the measures, saying they hit poor and working-class families and small businesses the hardest,” Bellon adds.

“One health advocacy group said that it was ‘disappointed that consumers will not benefit from the sensible warnings proposed by San Francisco,’” Richard Gonzales reports for NPR.

“We hope that cities, counties, and state legislatures continue to enact a wide range of policies to combat soda-related disease,” said the Center for Science in the Public Interest in a statement. “Taxes on sugary drinks were shown in Berkeley, Philadelphia, and Mexico to reduce consumption of these beverages. Many communities are requiring restaurants to offer healthier drinks with kids’ meals. Soda and other sugary drinks should be rare and served in reasonable portions -- and should not be the default drinks that their manufacturers want them to be.”