ANA: Sugar-Added Drink Ad Warnings Leave Sour Taste

Says they are unconstitutional, compelled speech
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Advertisers are worried about a California initiative to tackle obesity by dictating warning labels on outdoor ads for sugar-added drinks.

The Association of National Advertisers has filed a brief with a California federal district court in support of other marketers who have challenged the San Francisco Board of Supervisors ordinance. That ordinance, according to the brief—from veteran First Amendment attorney Robert Corn-Revere—requires "health" warnings that take up to a fifth of the space on billboards, posters and other outdoor ads.

The American Beverage Association, the California Retailers Association and the California State Outdoor Advertising Association challenged the ordinance on First Amendment grounds, and ANA agrees.

"This definition encompasses not only sodas, but also sports and energy drinks, sweetened juices, vitamin waters and iced teas, and even beverages that federal Food and Drug Administration ('FDA') rules define as low calorie," ANA said in its brief.

In addition, "the government’s vaguely-worded warning – that certain products 'contribute to' obesity, diabetes, and tooth decay – is not just uninformative, but deceptive. It says nothing about how much consumption of the products 'contribute[s] to' those unhealthy conditions. And it falsely suggests that the health effects are different for beverages with added sugar as compared with others," like no-sugar-added juices."

There are a ton of exemptions, including for broadcast and cable and radio advertising. But the ANA's Dan Jaffee suggests those other media are not necessarily out of the board's sites.

He said while the board made those exclusions, it does not have to preserve them if their initial labeling requirement did not succeed in reducing obesity. "Then the question is, do they come back and try and expand it" to the ad categories initially exempted.

And in any case, "compelling beverage advertisers to display government-prescribed warnings violates the First Amendment, which secures both the right to speak and … to refrain from speaking at all," said ANA in its brief.

ANA members include Comcast and Viacom in addition to a laundry list of consumer products companies.

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