Soda Industry Says San Francisco Ad Ban Violates Free Speech

Can beverage makers convince a federal court they're entitled to the same First Amendment rights as the rest of us?

(Photo: Justin Sullivan/Getty Images)

Jul 28, 2015· 2 MIN READ
Jason Best is a regular contributor to TakePart who has worked for Gourmet and the Natural Resources Defense Council.

In a move that would appear as unsurprising as it is ridiculous, the beverage industry has swiftly filed suit to challenge San Francisco’s tough new restrictions on ads for sugar-sweetened beverages, which were approved unanimously in June by the city’s Board of Supervisors. Why does the American Beverage Association, the industry’s largest trade group and lead plaintiff in the case, think the restrictions ought to be tossed out like so many empty soda cans? Because, the ABA claims, they infringe on soda makers’ First Amendment right to free speech.

“The city is free to try to persuade consumers to share its opinions about sugar-sweetened beverages,” the lawsuit reads. “Instead, the city is trying to ensure that there is no free marketplace of ideas, but instead only a government-imposed, one-sided public ‘dialogue’ on the topic—in violation of the First Amendment.”

And you had no clue that your average bro-studded billboard for Mountain Dew served such a noble purpose as to contribute to the “free marketplace of ideas.” Meanwhile, Coca-Cola outspends the entire food and beverage industry when it comes to lobbying dollars—political speech, as the Supreme Court likes to remind us. In 2014, it put $9.3 million toward lobbying Congress, according to OpenSecrets, far more than the runner-up, PepsiCo, with its $3.5 million.

No one could expect that an industry as large and powerful as the one that plies the average American with upwards of 30 gallons of liquid candy every year would allow the San Francisco regulations to go into effect uncontested. If the legislation passes legal muster, it will ban soda ads on all city property and, even more alarming to soda makers, require all outdoor ads for sugary drinks to carry an explicit warning label that would state: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes and tooth decay”—the first warning label ever mandated to appear on soda ads anywhere in the country.

The beverage industry’s claim that such restrictions effectively deny Pepsi, Coke, and other big soda makers the First Amendment rights guaranteed them by our Constitution may, at first glance, seem appalling—or laughable, depending on your level of cynicism. After all, hasn’t the government long been able to restrict advertising for otherwise legal products that have nevertheless been shown to adversely affect public health—i.e., tobacco and alcohol?

But American jurisprudence appears to have been ever more receptive to the once audacious claim that corporations should enjoy the same constitutional rights as individual Americans. You’ve got your Citizens United case, of course, which upended any commonsense reform of campaign financing by effectively ruling that the government can’t restrict campaign spending by corporations because that spending is a form of protected speech. Then there’s the infamous Hobby Lobby case, whereby a company being required to provide its employees access to certain forms of birth control under the Affordable Care Act somehow equates to an infringement on the craft-and-tchotchke chain’s freedom of religion.

More to the point, when the Food and Drug Administration, in response to a 2009 law passed by Congress, upped its antismoking game to require graphic warning labels to appear on packs of cigarettes, it was dealt a knockout blow by the D.C. Circuit Court for supposedly trampling big tobacco’s right to free speech. No doubt the words of the majority opinion are ones the American Beverage Association is hoping to hear in a favorable ruling in its latest suit: “We are skeptical that the government can assert a substantial interest in discouraging consumers from purchasing a lawful product, even one that had been conclusively linked to adverse health consequences.”