Warning Labels: Balancing Cities and State’s Power to Regulate Health Policy and the First Amendment

 

By: G. Iñaki Liñero Guarda

Obesity is a major problem affecting millions of people in the United States of America.[1]  Several national and international organizations have correlated obesity with diabetes, heart disease, and other illnesses.[2]  To fight obesity, different states and countries have implemented various policies.  For example in the United States, several states have taxed high sugar foods as well as imposing calorie counts.[3]  However, some of these methods have been scaled back due to political pressure, while others have not shown sufficient results in reducing obesity.[4]  Foreign countries, such as Great Britain, Chile, and Ecuador have implemented a labeling scheme that would warn consumers about the excessive content of unhealthy ingredients.[5]  Warning label schemes have been effective in decreasing the consumption of other harmful products, such as tobacco. [6]  Could a food labeling scheme be implemented in the United States?

On June 16, 2015, the city of San Francisco passed Ordinance No. 100-15 (“Warning Ordinance”) requiring companies to place warnings on the advertisement of their product.  The Warning Ordinance will require sugar-sweetened beverage (“SSB”) advertisements to include a warning stating, “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.”[7]  This Warning Ordinance is the first of its kind in the United States, and some states are considering enacting similar labeling regulations.[8]  However, warning label regulations may raise First Amendment claims for violation of free speech.

The First Amendment of the United States Constitution protects the right of free speech.  This right not only includes the right for people to speak freely, but also the right to avoid having the government force people to speak on its behalf.[9]  However, not all speech is equally protected. Commercial speech, such as advertisements, was not protected until 1976.  In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., the Supreme Court expanded the right of free speech to commercial communication at a limited capacity.[10]  In Central Hudson Gas & Electric Corp. v. Public Service Community of New York,[11] the Supreme Court further defined the right of commercial speech and established a Central Hudson Test to prove First Amendment violations of commercial speech. The Central Hudson test provides that regulations that restrict commercial speech are constitutional if the regulation: (1) seeks to address a substantial governmental interest; (2) directly advances that interest; and (3) reaches no further than necessary to accomplish the given objective.  However, as in Virginia State Board, Central Hudson stated that there are situations where regulations on commercial speech may receive less protections, such as disclosures.[12]  In Zauderer v. Office of Disciplinary Counsel of the Supreme Court, the Supreme Court decided on whether the government’s disclosure requirement on advertisements was constitutional by considering whether: (1) the government has a substantial governmental interest in preventing the deception of customers; (2) the law is reasonably related to the governmental interest; and (3) disclosure is purely factual and uncontroverted.[13]  Unlike Central Hudson Test, the Zauderer Test does not require the regulation to directly advance a governmental interest.[14]

In American Beverage Association v. San Francisco, the American Beverage Association, California Retailers Association, California Outdoor Advertising Association (collectively “ABA”) sued San Francisco to stop the city from enacting and enforcing the Warning Ordinance.  The ABA claimed that the Warning Ordinance violated their right to Free Speech.  The United States District Court of the Northern District of California ruled in favor of the San Francisco on May 17, 2016.[15]  The District Court held that the Warning Ordinance regulated commercial speech and that it complied with the Zauderer test.[16]  Through the use of experts and intrinsic evidence, San Francisco proved that the warning message was factual and uncontroverted, despite the fact that the ABA established that there were other sugary products that also contributed to obesity.  However, the American Beverage Association’s holding is not final because the ABA is currently appealing the opinion. [17]  Furthermore, there are several other cases where proving whether the message is factual and uncontroverted is more challenging.[18]

If the United States Ninth Circuit Court of Appeals reverses the ruling of American Beverage Association, then San Francisco will not likely survive the Central Hudson test because the regulation is too narrow to directly advance the government interest because it only addresses SSBs.[19]  This would not only affect San Francisco, but also affect all other states that plan to implement these types of regulations.  In light of the FDA updates to its nutritional information,[20] San Francisco may be able to set up a labeling scheme, such as the one used in Great Britain or Chile.  Such a scheme would require advertisers to place a colored image somewhere in the advertisement.  If the image is red, it would mean that the product contains more sugar than the daily intake (as established by the nutritional facts).  If the color is yellow, it would mean that such specific product fills the intake. If the image is green, it would mean that it is low in sugar or sugar-free.

 


[1] Cynthia L. Odgen, et al, Obesity and Socioeconomic Status in Adults: United States, 2005-2008, CDC (Dec. 2010), http://www.cdc.gov/nchs/data/databriefs/db50.pdf.

[2] Overweight in Children, American Heart Association (Aug. 2014), http://www.heart.org/HEARTORG/GettingHealthy/Overweight-in-Children_UCM_304054_Article.jsp#.VjUs6IsR9UR.

[3] Allyn L. Taylor, The Increasing Weight of Regulation: Countries Combat The Global Obesity Epidemic, 90 Ind. L. J. 257, 268 (2015) (explaining that twenty-six states created a “Sin tax,” which is a taxation on sodas and candy).

[4] See, e.g., Candy, Soda Tax Expires Thursday, Seattle Times (Dec. 1, 2010) (stating that a voted initiative ended the candy and soda tax for the state of Washington).

[5] See Law No. 41193 art. 1, 26, Junio 2015, Diario Oficial [D.O.] (Chile); Press Release, Department of Health (UK), Final Design of Consistent Nutritional Labelling System Given Green Light (June 19, 2013), https://www.gov.uk/government/news/final-design-of-consistent-nutritional-labelling-system-given-green-light.

[6] One Third of the World’s Population Benefits from Effective Tobacco Control Measure, World Health Organization (July 10, 2013), http://www.who.int/mediacentre/news/releases/2013/ban_tobacco_20130710/en.

[7] S.F. Health Code §§ 4200-4206 added by S.F. Ord. No. 100-15 (June 2015).

[8] See, e.g.,  H.R. 2798, 64th Leg., 2016 Reg. Sess. (Wash. 2016).

[9] See Wooley v. Maynard, 430 U.S. 705, 715-16 (1977) (holding the New Hampshire law penalizing people who covered their non-commercial state issued license plates unconstitutional).

[10] 425 U.S. 748, 762 (1976).

[11] 447 U.S. 557, 567-68 (1980).

[12] Id. at 565.

[13] See 471 U.S. 626, 651 (holding that an advertiser’s rights are adequately protected if the disclosures meet the elements).

[14] See Nat’l Elec. Mfr. v. Sorrell, 272 F.3d 104, 107 (2d Cir. 2001) (stating that although  the state’s regulation did not directly advance the governmental health goal of eliminating mercury poisoning because it did not cover all products that contained mercury; the regulation did not violate commercial speech because it was reasonably related to the state’s goal by requiring a warning on a few products under the Zauderer test).

[15] Civ. No. 15-03415, 2016 WL 2865893, at * 1 (May 17, 2016).

[16] Id. at * 7, 10, 12-15.

[17] See Generally American Beverage Association v. San Francisco, Civ. 15-03415, 2016 WL 2865893 (N.D. Cal. May 17, 2016), appeal docketed, No. 16-16073 (9th Cir. June 16, 2016).

[18] See, e.g., Entm’t Software Ass’n v. Blagojevich, 469 F.3d 641, 652 (7th Cir. 2006)(finding that videogame label required to state a game as “sexually explicit” was not factual); R.J. Reynolds Tobacco Co. v. FDA, 845 F. Supp. 2d 266, 273-74 (D.D.C. 2012) (finding tobacco graphic warning label non-factual and controversial).

[19] See Rubin v. Coors Brewing Co., 514 U.S. 476, 484 (1995) (holding that a law banning alcohol prices from certain locations unconstitutional because it does not directly advance the government’s interest).

[20] Food Labeling: Revision of the Nutrition and Supplement Facts Labels, 81 Fed. Reg. 33,741, 33,993 (May 27, 2016) (to be codified at 21 C.F.R. § 101).