Public Health

Stating facts on sugary-drink labels isn’t free-speech violation

Tanya Albert Henry , Contributing News Writer

Can San Francisco lawmakers require sugar-sweetened beverage ads to carry a warning label that lets people know that the added sugar can lead to weight gain, and that weight gain raises the risk of obesity and type 2 diabetes?

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They passed a law requiring just that. The American Beverage Association and others, though, say the requirement is unconstitutional. There's an ongoing court battle to quash the law from taking effect and a federal court in California will soon hear the latest challenge. With nearly half of all adults in San Francisco overweight or obese, physicians and other public health experts tell the court that the city's warning label is constitutional and a reasonable response to a serious problem.

"Although uncontroversial, the facts about sugar-sweetened beverages (SSBs) are not yet known to many San Franciscans—including many people with prediabetes or [type 2 diabetes]—who consume SSBs at high levels," the Litigation Center of the American Medical Association and State Medical Societies says in an amicus brief filed along with the California Medical Association and other public health organizations.

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The information—which would need to take up 10% of an advertisement—enhances a person's ability to make informed choices about their health, the AMA Litigation Center and others tell the U.S. District Court for the Northern District of California in the case challenging the ordinance, The American Beverage Association v. The City and County of San Francisco.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center's case-selection criteria.

Statements accurate, law constitutional

After an earlier ruling in the litigation, San Francisco lawmakers amended their ordinance to say it only needed to occupy 10% of the advertisement and carry fewer words: "SAN FRANCISCO GOVERNMENT WARNING: Drinking beverages with added sugar(s) can cause weight gain, which increases the risk of obesity and type 2 diabetes."

The brief from the AMA Litigation Center and others says that factual and uncontroversial disclosures and warnings on commercial advertisements only need to be reasonably related to a substantial government interest and not justified or unduly burdensome to pass First Amendment reviews.

And they say the San Francisco law meets that requirement.

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"These facts are established by scientific evidence and are recognized by virtually every major public health authority," the brief says. "The warning requirement is neither unjustified nor unduly burdensome: it is reasonably related to San Francisco's substantial interest in the ability of its citizens to make informed decisions about their health and, far from drowning out advertisers' messages, it leaves fully 90% of the space to be dedicated to product promotion."

And the brief says that the American Beverage Association's argument that people's weight gain is caused by "caloric imbalance," not SSBs, is not accurate.

The AMA and virtually every public health authority with relevant expertise recognizes the link between SSBs and weight gain.

"To say that a soda drinker's weight gain is caused by caloric imbalance and therefore not caused by soda consumption," the brief says, "is comparable to a criminal defendant charged with pushing a victim out the window arguing that the fall was caused not by being pushed, but by gravity."