Courts: Health advocates worry about sugary drinks ruling

A federal appeals court ruling that barred San Francisco from requiring advertisers of sugary drinks to include large warnings on their display ads about potential health effects was disappointing to city officials but, in the current judicial climate, not especially surprising to the legal community — except for a separate opinion by two of the 11 judges.

The pair, who included the court’s chief judge, Sidney Thomas, argued that a warning that sugary beverages can cause diabetes was simply untrue. Health care advocates fear the opinion, if adopted by other courts, would undermine efforts to inform consumers about dangerous products.

The ordinance, passed unanimously by the Board of Supervisors in 2015 but never implemented, would require that 20 percent of display advertising space be devoted to a warning, attributed to the city, that “drinking beverages with added sugar (s) contributes to obesity, diabetes, and tooth decay.”

All 11 judges on a Ninth U.S. Circuit Court of Appeals panel agreed Jan. 31 that the warning was probably unconstitutional in light of recent Supreme Court rulings, including one that struck down notices required by California at antiabortion clinics. The lead opinion by seven judges, led by Susan Graber, suggested the city might meet free-speech standards with a smaller notice — perhaps 10 percent of the overall space — that didn’t overwhelm the advertiser’s message.

But in a separate opinion, Judge Morgen Christen, joined by Thomas, said the city’s notice was unacceptable at any size because the warning about diabetes was untrue.

That’s because there are two kinds of diabetes, Christen said: Type 1, which arises, often at an early age, from the body’s inability to produce insulin, and Type 2, usually developed in adulthood. Research shows that sugary foods and drinks can lead to Type 2 diabetes — which accounts for 90 to 95 percent of all U.S. diabetes cases, according to the Centers for Disease Control and Prevention — but they do not cause Type 1.

That means San Francisco’s warning that drinking those beverages “contributes to ... diabetes,” without distinguishing between varieties of the disease, “is devoid of scientific support,” Christen said.

Requiring such precision “may seem persnickety,” she said, “but there are significant constitutional implications whenever the government seeks to control our speech. There are also societal consequences to inaccurate government-mandated messages.”

At the court’s Sept. 25 hearing on the case, Thomas expressed a related objection: Type 1 diabetics who take insulin can sometimes suffer dangerously low levels of blood sugar. In that event, he said, a warning like San Francisco’s “may deter somebody from getting what could be a lifesaving administration of soda.”

“I would hope that someone with Type 1

diabetes has been educated by a doctor,” replied Deputy City Attorney Jeremy Goldman.

Christen’s opinion was only a concurrence that lacked the majority vote needed to set a legal precedent. But it goes into the casebooks bearing the names of the two judges, both appointees of Democratic presidents, on the nation’s largest and one of its most liberal federal appellate courts.

To advocates of government health warnings, the opinion was astonishing.

“I was gobsmacked,” said Doug Blanke, executive director of the Public Health Law Center, which signed arguments supporting San Francisco’s ordinance. “It’s hard to think what warning label would satisfy this standard.”

For example, he said, some government-mandated labels of cigarette packages say smoking causes cancer, though it hasn’t been conclusively linked to all forms of cancer. Other labels say smoking causes strokes and heart disease, which clearly have other causes. And the government

warning on alcoholic beverages says drinking “may cause health problems.”

As for diabetes, Blanke said, Type 2 not only accounts for the overwhelming majority of cases, it’s also “the only kind you can do something about” by watching what you eat and drink.

Attorney Tom Bennigson of the Public Good Law Center in Berkeley filed arguments on behalf of the American Heart Association and other health organization supporting the warning labels. He said the only way to comply with objections like Christen’s would be to attach footnotes to every label detailing the types of illnesses a substance does and doesn’t cause. “How are you going to fit it on the sign?” Bennigson said. “It would make it impossible to have warnings that would meet the standard of not being unduly burdensome.”