Sugar-water-purveyors and nanny-state-haters alike can cheer: San Francisco’s disclaimer requirement for soda advertisers has been killed off by the Ninth Circuit.
What kind of disclaimer? A prominent box containing this text:
WARNING: Drinking beverages with added
sugar(s) contributes to obesity, diabetes, and
tooth decay. This is a message from the City
and County of San Francisco.
Your tax dollars at work, San Francisco!
I’m not a big soda drinker, but my interest is the compelled speech angle – the attorney ad rules are replete with disclaimer requirements. In fact, the seminal Supreme Court case on compelled speech (Zauderer v. Office of Disciplinary Counsel) involved attorney advertising.
The opinion striking San Francisco’s law (American Beverage Assn. v. City and County of San Francisco) offers a terrific overview of the compelled speech doctrine. And as the opinion notes, the state has wide latitude to compel advertisers to “speak” uncontroversial facts – as long as that compulsion isn’t too burdensome.
In analyzing the San Francisco ordinance, the Ninth Circuit opinion does a neat little flip of Zauderer, where “technically truthful” advertising was found to still be deceptive because it omitted key information:
Applying this principle to disclosure requirements, a literally
true but misleading disclosure creates the possibility of
Nice! The decision goes on to find that while the the San Francisco warning is technically true – there is a consensus, at the population level, that added sugar contributes to obesity, etc. – it also suggests that this is true at the individual level, “regardless of the quantity consumed or other lifestyle choices.” And as such, the disclaimer is at best a “disputed policy view.” As the court notes:
Zauderer does not allow the state to require corporations to provide one-sided or misleading messages, or to use their own property to convey an antagonistic ideological message.
The court also found that the disclosure requirement was unduly burdensome, as the disclaimer would have comprised 20% of subject advertisements. And, interestingly, it didn’t even bother with a second level of analysis to see if the more exacting intermediate scrutiny test would save San Francisco’s law – it simply gave the law the kibosh.
In any event, the opinion is nice exposition of the constitutional test in this often-confusing area. And what’s more, it offers something for state bar regulators to keep in mind when thinking about the viability of their own disclaimer requirements.