En banc court again strikes down sugar-sweetened beverages warning, with divided and divisive reasoning

American Beverage Ass’ v. City & County of San Francisco,
No. 16-16072 (9th Cir. Jan. 31, 2019)
After the panel
striking down SF’s sugar-sweetened beverages (SSB)
disclosure was reheard by the en banc court in light of National Institute of
Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018), the en
banc court again struck it down, though not with enough force for a vigorous
special concurrence in the judgment.  To
the majority, the disclosure was an “unjustified or unduly burdensome disclosure
requirement[] [that] might offend the First Amendment by chilling protected
commercial speech” under Zauderer v. Office of Disciplinary Counsel, 471 U.S.
626 (1985).
The ordinance required certain SSB ads within the city to
state: “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.” Traditional media ads and some other things, like small logos, were
excluded. The warning had to occupy at least 20% of the advertisement and be
set off with a rectangular border.
Under Zauderer,
the government may compel truthful disclosure in commercial speech as long as
the compelled disclosure is “reasonably related” to a substantial governmental
interest. The Supreme Court vacated and remanded CTIA–The Wireless Ass’n v.
City of Berkeley, 854 F.3d 1105 (9th Cir. 2017), in light of NIFLA, but that didn’t make a difference
to this case.  CTIA “examined a similar health and safety warning and held
squarely that Zauderer provides the
proper analytical framework for considering required warnings on commercial
products,” and is not limited to disclosures that correct falsity. 
NIFLA did not
address, and a fortiori did not disapprove, the circuits’ precedents, including
CTIA, which have unanimously held
that Zauderer applies outside the context of misleading advertisements.”
Indeed, “NIFLA
preserved the exception to heightened scrutiny for health and safety warnings.
The Supreme Court made clear that it was not calling into ‘question the
legality of health and safety warnings long considered permissible.’” Judge
Ikuta’s special concurrence read this language to mean that only health and
safety warnings of ancient origin could avoid heightened scrutiny, but “the
most natural reading of this passage” was as a reference to health and safety
warnings in general, especially given that the NIFLA majority was answering Justice Breyer’s dissent listing
examples such as warnings about seat belts and about the availability of whooping
cough vaccine. “There is no indication that either of those required
disclosures is of ancient origin or that the majority intended some health and
safety warnings (if accurate, uncontroversial, and not unduly burdensome) to be
precluded merely because the knowledge that the warnings convey is new.”
Under Zauderer, a
compelled notice must be (1) purely factual, (2) noncontroversial, and (3) not
unjustified or unduly burdensome. SF failed to meet its burden on (3). SF’s
argument that the border and 20% size requirements adhered to best practices
for health and safety warnings was unpersuasive. Some tobacco and prescription
warnings must occupy at least 20% of those products’ labels or advertisements,
and SF’s expert concluded that larger warnings are more effective. But the
record here showed that a smaller warning would achieve SF’s stated goals; SF’s
expert cited and discussed a study that examined a warning similar to that
required by the ordinance, but covered only 10% of the ad. SF failed to show
that the contrasting rectangular border containing a warning that covers 20% of
the advertisement didn’t “drown[] out” Plaintiffs’ messages and “effectively
rule[] out the possibility of having [an advertisement] in the first place.”  A 10% warning wouldn’t necessarily be valid,
and a 20% warning isn’t necessarily invalid, but on this record, SF didn’t
carry its burden.
Judge Ikuta dissented from most of the reasoning. NIFLA superseded Zauderer by holding that government-compelled speech is a
content-based regulation of speech. (The majority is obviously right that this
isn’t new; what’s relatively new is the suggestion that there are some
commercial speech regulations that are other than content-based, always contrasted
with the content-based commercial speech regulation actually before the court
in a given case, combining poisonously with the post-Reed idea that all content based regulations are the same variety
of bad.)  Content-based regulations are
presumptively unconstitutional. After NIFLA,
governments may not “impose content-based restrictions on speech without
persuasive evidence of a long (if heretofore unrecognized) tradition to that
Zauderer now only
applies to “some laws that require professionals to disclose factual,
noncontroversial information in their ‘commercial speech.’”  Anyway, the factual accuracy of this warning
wasn’t undisputed. (Will it ever be?) 
The FDA says that added sugars are “generally recognized as safe,” and
“can be a part of a healthy dietary pattern” when not consumed in excess
amounts.  The disclosure was also not
“uncontroversial” (will it ever be?) because the record showed this was a
controversial topic.  Nor did the warning
“relate to the terms on which the advertisers provide their services,” which
Judge Ikuda took to be a NIFLA-added
limit on the reach of Zauderer,
because soda is a product and not a service and the warning doesn’t address the
terms of the deal. [This reasoning is just bad; (1) there is no reason to
distinguish disclosures for services from disclosures for products for
constitutional purposes (I think for Judge Ikuda this is a collateral
consequence of the idea that Zauderer
is now only for professional speech and not for ordinary commercial speech, but
professionals can sell you products as well as services), and (2) the “terms”
here should include “what you’re getting for your money,” and the disclosure
relates to the components of SSBs.] Judge Ikuda did agree that the warning was
too burdensome, as well.
And the majority here was wrong to say that “NIFLA preserved the exception to
heightened scrutiny for health and safety warnings,” because only “health and
safety warnings long considered permissible” were excepted. “NIFLA did not specify what sorts of
health and safety warnings date back to 1791, but warnings about
sugar-sweetened beverages are clearly not among them.” [Look, the majority
clearly has the better of this argument; the sensible meaning is that health
and safety warnings have long been considered permissible, not that warnings
about poxy air would be ok because they’re old but warnings about PCBs would be
problematic because they’re new. Even Justice Scalia was very clear (in his Lucas v. South Carolina Coastal Council
opinion) that newly discovered facts about the nature of the physical world can
trigger old doctrines allowing regulation. 
However, the not unrelated question about what constitutes a “factual
and uncontroversial” disclosure may thwart the majority’s attempt to preserve
health and safety warnings, insofar as it’s usually possible to find someone to
contest any factual proposition.  [But of
course, when it comes to abortion/ “informed consent,” the government can
require the disclosure of all sorts of things, without a “factual/uncontroversial”
requirement, because that’s different.]]
Without Zauderer’s
cover, the mandatory disclosure flunked intermediate scrutiny because the
warming wasn’t sufficiently tailored to the government interest in warning of
the public health dangers from drinking SSBs. 
It was underinclusive—it didn’t apply to all SSBs, much less all
sugar-sweetened products, and it didn’t apply to many ads for covered SSBs.
Moreover, “San Francisco could disseminate health information by other, less
burdensome means, such as a less intrusive notice or a public health campaign.”
Judge Ikuda also objected that  the majority failed “to provide any guidance
regarding when a warning is unjustified or unduly burdensome.” Instead of
considering the “totality” of the requirements, the majority considered only
whether a smaller warning would accomplish the city’s stated goals. It should
have tested the regulation against Central
scrutiny, rather than reasoning that if it couldn’t meet Zauderer’s exception then it couldn’t
pass Central Hudson.
Judge Christen and Chief Judge Thomas concurred in part and
in the judgment. They would apply Zauderer,
but would have reasoned that SF couldn’t show that the speech at issue was
“purely factual.”
 “[W]here, as here,
the parties disagree about the veracity of compelled speech, the court should
begin by asking whether the government’s message is objectively true,” because
an assessment of controversiality or burdensomeness will often entail much more
subjective judgments. 
To the concurrence, there was no evidence that SSBs “contribute[]
to” obesity, diabetes, and tooth decay, because “diabetes” is an umbrella term
referring to both type 1 diabetes and type 2 diabetes and the causes of type 1
diabetes are unknown, so the research linking SSBs to type 2 diabetes is
irrelevant.  [This reasoning is
unimpressive.  Drinking and driving
contributes to car accidents even though it doesn’t contribute to every car
accident or even every kind of car accident.] 
The message was therefore also controversial. That provided a more
objective basis for invalidating the law than its burden.  [The concurrence doesn’t notice that its
subjectivity comes in when interpreting the semantic meaning of the required
disclosure—a weakness that also came up in the case invalidating the initial
tobacco warning images for putatively conveying a factual message that smoking
always causes autopsies.]
SF argued that a reasonable person would understand the
reference to diabetes as “the kind of diabetes that can be caused by
overconsumption of sugar,” but that argument was “in tension with the goal of
having a public health message understood by the maximum number of consumers,
not just those with sophisticated levels of health literacy. Because the
message would be conveyed to sophisticated and unsophisticated consumers, we
must read it literally.”  [I guess in the
next round of this we get to debate whether “contributes to” communicates
something like “always causes” or “uniformly raises everyone’s risks the same
amount” or something like that.  The
point of the message was not to educate consumers about the different types of
diabetes; it was to provide them with actionable information about the
relationship between SSBs and the disease state of diabetes.  If they end up knowing the latter without
being aware of the former, they’re not misled. 
I find it odd to treat the warning as a purely abstract item of
information rather than information that might affect actions, as was its
The concurrence defends its “persnickety” insistence on
factuality not only because of the constitutional rules, but because of the
social consequences of government-mandated messages, given the pervasive
stigmatization of people with type 1 diabetes as having a disease that is the
result of a lack of personal responsibility. 
[Again, it’s completely unclear to me how the warning would worsen this
problem; assume it said (correctly, as far as the concurrence is concerned)
that SSBs are associated with type 2 diabetes. 
People would still need to learn the difference between type 1 and type
2 independently of the warning.  Unless
the thought is that the mandatory warning should also educate them about type 1
diabetes and perhaps caution them against shaming anyone with diabetes?]
Further, the warning was “problematic” because it suggested
that sugar was always dangerous for diabetics, whereas consuming SSBs can be
medically indicated for a type 1 diabetic when there are signs of hypoglycemia,
to raise blood sugar levels quickly.
Judge Nguyen concurred also, arguing that Zauderer is only for disclosures that
correct false/misleading speech and that SF’s warning flunked Central Hudson.  Applying Zauderer
was particularly bad because the SSB warning was a content-based
regulation.  [Sigh.]

from Blogger http://bit.ly/2WLsAYn

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