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On September 19, 2017, in American Beverage Association v. City and County of San Francisco, the United States Court of Appeals for the Ninth Circuit annulled a San Francisco ordinance requiring advertisements for certain beverages sweetened with sugar to include large boxes 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.

A critical part of court’s reasoning concerned whether the warning is “purely factual and uncontroversial.” It held it was not, because it “conveys the message that sugar-sweetened beverages contribute to these health conditions regardless of the quantity consumed or other lifestyle choices.” Instead, the court suggested (with its own italics) that the message might more appropriately “state that overconsumption of sugar-sweetened beverages . . . may contribute to obesity, diabetes, and tooth decay.”

This ruling seems to conflict with cases upholding similar warning requirements on cigarette packages. For example, the Federal Cigarette Labeling and Advertising Act, 15 U.S.C. § 1333 requires that each package bear one of several warnings, including “Cigarettes cause cancer” and “Cigarettes cause fatal lung disease.” However, a person smoking one cigarette is unlikely to suffer either of these consequences as a result. Thus, the warnings falsely “convey the message that [cigarettes] contribute to these health conditions regardless of the quantity consumed.”

In a footnote, the court briefly distinguished tobacco warnings, stating only that “Sugar-sweetened beverages do not have the same physiologically addictive qualities as tobacco.” That is true, but the addictive nature of tobacco is irrelevant to the court’s rationale that the stated diseases may not occur even with excessive consumption. Indeed, one could justify a greater need for warnings on sugary drinks by emphasizing the amount of them consumed by children.

The court’s distinction between the certainty of health effects of tobacco and sugar is illusory. One may hope that San Francisco seeks further review of this decision.

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