American Beverage Assn. v. City & County of San Francisco
916 F.3d 749
| 9th Cir. | 2019Background
- San Francisco enacted an ordinance requiring certain outdoor ads for sugar-sweetened beverages (SSBs) to include a government-drafted warning: "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." The warning must occupy at least 20% of the ad and be set off in a border.
- Plaintiffs (American Beverage Ass’n; California Retailers Ass’n; California State Outdoor Advertising Ass’n) challenged the ordinance as violating the First Amendment and sought a preliminary injunction to block enforcement.
- The district court denied the preliminary injunction, finding the warning not misleading, not unduly burdensome, and rationally related to a substantial government interest; the decision was stayed pending appeal.
- A Ninth Circuit three-judge panel reversed; the court then granted en banc review. The en banc majority applied Zauderer (as informed by NIFLA) and held Plaintiffs likely to succeed on the merits and that the other preliminary-injunction factors favored Plaintiffs.
- The en banc court concluded San Francisco failed to carry its burden that the 20% size and border requirements were not unjustified or unduly burdensome and thus likely chilled protected commercial speech.
- Multiple concurrences/dissenting views: Judge Ikuta criticized the majority for not following NIFLA’s analytical sequence; Judge Christen would decide the case on the warning’s lack of purely factual content; Judge Nguyen concurred only in the judgment, disagreeing with expanding Zauderer beyond misleading speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ordinance’s compelled warning violates the First Amendment | The warning is compelled commercial speech that chills protected expression and is unjustified/unduly burdensome | The warning is a permissible public‑health disclosure reasonably related to a substantial government interest and thus constitutional under Zauderer or, alternatively, survives heightened scrutiny | En banc court: Plaintiffs likely to succeed; the warning fails Zauderer’s "unjustified or unduly burdensome" prong on this record, so preliminary injunction warranted |
| Proper standard of review for compelled commercial disclosures (Zauderer v. Central Hudson) | Zauderer applies to compelled factual commercial disclosures beyond just deception contexts | San Francisco urged Zauderer (or at least that the law survives intermediate scrutiny) | Majority: Zauderer governs compelled commercial-health warnings; NIFLA informs three-part Zauderer inquiry. Concurrences disagreed on scope of Zauderer and whether Zauderer should be limited to misleading speech |
| Whether the warning is "purely factual and noncontroversial" (NIFLA threshold) | Plaintiffs: warning conveys ideological/controversial message and may be factually inaccurate (e.g., as to diabetes causation) | San Francisco: warning conveys health facts and should be read in context (e.g., referring to type 2 diabetes/aggregate public‑health effects) | Majority did not decide factual/noncontroversial prongs because it resolved the case on undue-burden ground; some concurring judges would decide on factual accuracy or restrict Zauderer’s reach |
| Whether a 20% size + bordered format is justified or unduly burdens speech | Plaintiffs: size and border drown out ads and likely deter advertising, imposing an undue burden | San Francisco: format reflects best practices and is necessary for effectiveness | En banc court: San Francisco failed to show the 20%/border requirements were justified; less burdensome alternatives (e.g., 10%) could achieve objectives on this record |
Key Cases Cited
- National Institute of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (U.S. 2018) (framework for compelled commercial/professional speech; Zauderer exception and heightened scrutiny guidance)
- Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (U.S. 1985) (permitting compelled disclosures of factual, noncontroversial information in commercial speech tied to preventing deception)
- Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (U.S. 1980) (intermediate-scrutiny test for restrictions on commercial speech)
- CTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105 (9th Cir. 2017) (Ninth Circuit application of Zauderer to health/safety disclosures; reconsidered in light of NIFLA)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S. 2008) (standard for issuing preliminary injunctions)