American Beverage Assn. v. City & County of San Francisco , 916 F.3d 749 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN BEVERAGE No. 16-16072
ASSOCIATION; CALIFORNIA
RETAILERS ASSOCIATION, D.C. No.
Plaintiffs-Appellants, 3:15-cv-03415-EMC
and
CALIFORNIA STATE OUTDOOR
ADVERTISING ASSOCIATION,
Plaintiff,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
AMERICAN BEVERAGE No. 16-16073
ASSOCIATION; CALIFORNIA
RETAILERS ASSOCIATION, D.C. No.
Plaintiffs, 3:15-cv-03415-EMC
and
OPINION
CALIFORNIA STATE OUTDOOR
ADVERTISING ASSOCIATION,
Plaintiff-Appellant,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
Appeals from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted En Banc September 25, 2018
Pasadena, California
Filed January 31, 2019
Before: Sidney R. Thomas, Chief Judge, and Dorothy W.
Nelson, Susan P. Graber, William A. Fletcher, Marsha S.
Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan
Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,
and John B. Owens, Circuit Judges.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3
Opinion by Judge Graber;
Concurrence by Judge Ikuta;
Concurrence by Judge Christen;
Concurrence by Judge Nguyen
SUMMARY*
Civil Rights
The en banc court reversed the district court’s denial of a
preliminary injunction and remanded in an action challenging
the City and County of San Francisco’s Sugar-Sweetened
Beverage Warning Ordinance, which requires health
warnings on advertisements for certain sugar-sweetened
beverages.
Plaintiffs, the American Beverage Association, California
Retailers Association, and California State Outdoor
Advertising Association, argued that the Ordinance violated
their First Amendment right to freedom of speech. The en
banc court, relying on National Institute of Family & Life
Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),
concluded that Plaintiffs will likely succeed on the merits of
their claim that the Ordinance is an “unjustified or unduly
burdensome disclosure requirement[] [that] might offend the
First Amendment by chilling protected commercial speech.”
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,
651 (1985). The en banc court determined that the remaining
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
preliminary injunction factors also weighed in Plaintiffs’
favor.
Concurring, Judge Ikuta stated that because the
Associations had shown a likelihood of prevailing on the
merits and because the other factors for granting a
preliminary injunction weighed in the Associations’ favor,
she agreed with the majority’s conclusion that the district
court abused its discretion by denying the Associations’
motion for a preliminary injunction. But Judge Ikuta stated
that because the majority failed to apply NIFLA’s framework
for analyzing when government-compelled speech violates
the First Amendment, she dissented from the majority’s
reasoning.
Concurring in part and concurring in the judgment, Judge
Christen, joined by Chief Judge Thomas, agreed with the
majority that Zauderer’s framework applied to the
government-compelled speech at issue in this case. Judge
Christen also agreed that the district court’s decision must be
reversed, but she would not reach the issue the majority relied
upon. Judge Christen would reverse because the City and
County of San Francisco could not show that the speech it
sought to compel was purely factual.
Concurring in the judgment, Judge Nguyen disagreed
with the majority’s expansion of Zauderer’s rational basis
review to commercial speech that is not false, deceptive, or
misleading. Judge Nguyen stated that because the majority
reached the right result under the wrong legal standard, she
respectfully concurred only in the judgment.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 5
COUNSEL
Richard P. Bress (argued), George C. Chipev, Michael E.
Bern, and Melissa Arbus Sherry, Latham & Watkins LLP,
Washington, D.C.; Marcy C. Priedman, Latham & Watkins
LLP, San Francisco, California; for Plaintiffs-Appellants.
Jeremy Michael Goldman (argued) and Wayne Snodgrass,
Deputy City Attorneys; Dennis J. Herrera, City Attorney;
Office of the City Attorney, San Francisco, California; for
Defendant-Appellee.
Wencong Fa and Meriem L. Hubbard, Pacific Legal
Foundation, Sacramento, California, for Amicus Curiae
Pacific Legal Foundation.
Robert Corn-Revere, Ronald G. London, Davis Wright
Tremaine LLP, Washington, D.C., for Amicus Curiae The
Association of National Advertisers, Inc.
Warren Postman and Katheryn Comerford Todd, Litigation
Center Inc., Washington, D.C.; Jeremy J. Broggi, Megan L.
Brown, and Bert W. Rein, Wiley Rein LLP, Washington,
D.C., for Amicus Curiae Chamber of Commerce of the
United States of America.
Mark S. Chenoweth, Cory L. Andrews, and Richard A. Samp,
Washington Legal Foundation, Washington, D.C., for
Amicus Curiae Washington Legal Foundation.
Allison M. Zieve, Julie A. Murray, and Scott L. Nelson,
Public Citizen Litigation Group, Washington, D.C., for
Amicus Curiae Public Citizens, Inc.
6 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
Sophia TonNu, Thomas Bennigson, and Seth E. Mermin,
Public Good Law Center, Berkeley, California; Sabrina
Adler, Ian McLaughlin, and Benjamin D. Wing, Changelab
Solutions, Oakland, California, for Amici Curiae American
Heart Association, American Academy of Pediatrics,
California, California Academy of Family Physicians,
California Chapter of the American Association of Clinical
Endocrinologists, California Endowment, California Medical
Association, California Pan-Ethnic Health Network,
Changelab Solutions, Community Health Partnership,
Crossfit Foundation, Diabetes Coalition of California,
Healthy Food America, Latino Coalition for a Healthy
California, National Association of Chronic Disease
Directors, National Association of Local Boards of Health,
Network of Ethnic Physician Organizations, Nicos Chinese
Health Coalition, Prevention Institute, Public Health Institute,
Public Health Law Center, San Francisco Bay Area
Physicians for Social Responsibility, San Francisco
Community Clinic Consortium, San Francisco Medical
Society, Southern California Public Health Association, and
Strategic Alliance.
Rachel Bloomekatz, Gupta Wessler PLLC, Washington,
D.C., for Amici Curiae American Cancer Society Cancer
Action Network, Public Health Law Center, Action on
Smoking & Health, African American Tobacco Control
Leadership Council, American Lung Association, American
Thoracic Society, Americas for Nonsmokers’ Rights,
Campaign for Tobacco-Free Kids, NAATPN, and Truth
Initiative Foundation.
Maia C. Kats, Center for Science in the Public Interest,
Washington, D.C., for Amicus Curiae Center for Science in
the Public Interest.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 7
Peter C. Tolsdorf and Linda E. Kelly, Manufacturers’ Center
for Legal Action, Washington, D.C.; J. Michael Connolly,
Thomas R. McCarthy, and William S. Consovoy, Consovoy
McCarthy Park PLLC, Arlington, Virginia; for Amicus
Curiae National Association for Manufacturers.
Deborah R. White, Retail Litigation Center Inc., Arlington,
Virginia; Gabriel K. Gillett, Jenner & Block LLP, Chicago,
Illinois; Adam G. Unikowsky, Jenner & Block LLP,
Washington, D.C., for Amicus Curiae Retail Litigation
Center.
Catherine E. Stetson, Hogan Lovells US LLP, Washington,
D.C., for Amicus Curiae Grocery Manufacturers Association.
OPINION
GRABER, Circuit Judge:
Plaintiffs American Beverage Association, California
Retailers Association, and California State Outdoor
Advertising Association challenge Defendant City and
County of San Francisco’s Sugar-Sweetened Beverage
Warning Ordinance, City & Cty. of S.F., Cal., Bd. of
Supervisors Ordinance No. 100-15, § 1 (June 16, 2015). The
Ordinance requires health warnings on advertisements for
certain sugar-sweetened beverages (“SSBs”). Plaintiffs argue
that the Ordinance violates their First Amendment right to
freedom of speech. Relying on the United States Supreme
Court’s decision in National Institute of Family & Life
Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361 (2018), we
conclude that Plaintiffs will likely succeed on the merits of
their claim that the Ordinance is an “unjustified or unduly
8 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
burdensome disclosure requirement[] [that] might offend the
First Amendment by chilling protected commercial speech.”
Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,
651 (1985). The remaining preliminary injunction factors
also weigh in Plaintiffs’ favor. We therefore hold that the
district court abused its discretion by denying Plaintiffs’
motion for a preliminary injunction, and we reverse and
remand.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2015, Defendant enacted the Ordinance, which
requires that certain SSB advertisements (“SSB Ads”) include
the following statement:
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.
City & Cty. of S.F., Cal., Health Code art. 42, div. I,
§ 4203(a) (2015). An “SSB Ad” covers
any advertisement, including, without
limitation, any logo, that identifies, promotes,
or markets a Sugar-Sweetened Beverage for
sale or use that is any of the following: (a) on
paper, poster, or a billboard; (b) in or on a
stadium, arena, transit shelter, or any other
structure; (c) in or on a bus, car, train,
pedicab, or any other vehicle; or (d) on a wall,
or any other surface or material.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 9
Id. § 4202. Under section 4202, though, an “SSB Ad” does
not include advertising in or on: periodicals; television;
electronic media; SSB containers or packaging; menus; shelf
tags; vehicles used by those in the business of manufacturing,
selling, or distributing SSBs; or logos that occupy an area of
less than 36 square inches. Id. The Ordinance defines “SSB”
as “any Nonalcoholic Beverage sold for human consumption,
including, without limitation, beverages produced from
Concentrate, that has one or more added Caloric Sweeteners
and contains more than 25 calories per 12 ounces of
beverage.” Id. But “SSB” does not include drinks such as
milk, plant-based milk alternatives, natural fruit and
vegetable juices, infant formulas, and supplements. Id. The
Ordinance provides detailed instructions regarding the form,
content, and placement of the warning on SSB Ads, including
a requirement that the warning occupy at least 20% of the
advertisement and be set off with a rectangular border. Id.
§ 4203(b).
Defendant’s stated purpose in requiring the warning is,
among other reasons, to “inform the public of the presence of
added sugars and thus promote informed consumer choice
that may result in reduced caloric intake and improved diet
and health, thereby reducing illnesses to which SSBs
contribute and associated economic burdens.” Id. § 4201.
Failure to comply with the warning requirement can result in
administrative penalties imposed by San Francisco’s Director
of Health. Id. § 4204(a).
Plaintiffs sued to prevent implementation of the
Ordinance. The district court denied Plaintiffs’ motion for a
preliminary injunction. Concluding that Plaintiffs likely
would not succeed on the merits of their First Amendment
challenge, the district court held that the warning is not
10 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
misleading, does not place an undue burden on Plaintiffs’
commercial speech, and is rationally related to a substantial
governmental interest. But the court stayed implementation
of the Ordinance pending this timely interlocutory appeal.
A three-judge panel of this court reversed the district
court’s denial of a preliminary injunction, Am. Beverage
Ass’n v. City & County of San Francisco, 871 F.3d 884 (9th
Cir. 2017). We then ordered that the case be reheard en banc,
880 F.3d 1019 (9th Cir. 2018).
JURISDICTION AND STANDARDS OF REVIEW
We have jurisdiction under 28 U.S.C. § 1292.
We review the denial of a preliminary injunction for
abuse of discretion. Harris v. Bd. of Supervisors, 366 F.3d
754, 760 (9th Cir. 2004). A district court abuses its discretion
if it rests its decision “on an erroneous legal standard or on
clearly erroneous factual findings.” United States v. Schiff,
379 F.3d 621, 625 (9th Cir. 2004) (internal quotation marks
omitted). “We review conclusions of law de novo and
findings of fact for clear error.” All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (internal
quotation marks omitted).
DISCUSSION
A preliminary injunction is an extraordinary remedy that
may be awarded only if the plaintiff clearly shows entitlement
to such relief. Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary
injunction must establish [1] that he is likely to succeed on
the merits, [2] that he is likely to suffer irreparable harm in
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 11
the absence of preliminary relief, [3] that the balance of
equities tips in his favor, and [4] that an injunction is in the
public interest.” Id. at 20.
A. Test for Analyzing a Claim of Compelled Speech
We begin by considering Plaintiffs’ likelihood of success
on the merits of their First Amendment challenge. The First
Amendment provides that “Congress shall make no law . . .
abridging the freedom of speech.”1 U.S. Const. amend. I. Its
protection is broad, and the Supreme Court has “been
reluctant to mark off new categories of speech for diminished
constitutional protection.” NIFLA, 138 S. Ct. at 2372(internal quotation marks omitted). But NIFLA also
acknowledged that the Court has “applied a lower level of
scrutiny to laws that compel disclosures in certain contexts,”
including cases analyzing the required disclosure of “factual,
noncontroversial information in . . . ‘commercial speech.’”
Id.The Ordinance regulates commercial speech and compels
certain disclosures.2 Therefore, in addressing Plaintiffs’
claim, we first determine what level of scrutiny applies. The
parties dispute whether we should analyze the Ordinance’s
compliance with the First Amendment under Central Hudson
Gas & Electric Corp. v. Public Service Commission, 447 U.S.
1The Due Process Clause of the Fourteenth Amendment incorporates
the First Amendment against the states. Va. State Bd. of Pharmacy v. Va.
Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976).
2
Judge Ikuta’s special concurrence discusses at length a proposition
that no one disputes: that the warning is compelled speech, requiring a
First Amendment analysis.
12 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
557 (1980), or under Zauderer, 471 U.S. 626. We have
discussed those two tests previously, stating that:
Under Central Hudson, the government
may restrict or prohibit commercial speech
that is neither misleading nor connected to
unlawful activity, as long as the governmental
interest in regulating the speech is substantial.
447 U.S. at 564. The restriction or prohibition
must “directly advance the governmental
interest asserted,” and must not be “more
extensive than is necessary to serve that
interest.” Id. at 566. Under Zauderer . . . , the
government may compel truthful disclosure in
commercial speech as long as the compelled
disclosure is “reasonably related” to a
substantial governmental interest. Zauderer,
471 U.S. at 651.
CTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105,
1115 (9th Cir. 2017).3
In NIFLA, the Supreme Court applied the Zauderer test
without deciding whether that test, in fact, applied. NIFLA,
138 S. Ct. at 2376–77. But before NIFLA, we examined a
similar health and safety warning and held squarely that
Zauderer provides the proper analytical framework for
considering required warnings on commercial products:
3
The Supreme Court vacated and remanded our opinion in CTIA for
reconsideration in light of NIFLA. CTIA, 138 S. Ct. 2708 (2018). As will
be evident from the text that follows, we reconsider relevant portions of
CTIA here in light of NIFLA and see nothing in NIFLA that is inconsistent
with those aspects of CTIA with which we agree in this opinion.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 13
“[T]he government may compel truthful disclosure in
commercial speech as long as the compelled disclosure is
‘reasonably related’ to a substantial governmental interest.”
CTIA, 854 F.3d at 1115. We rejected the argument that
intermediate scrutiny—as required by Central Hudson,
447 U.S. 557, for situations in which speech is restricted or
prohibited—should govern. CTIA, 854 F.3d at 1115–17. We
also rejected the argument that Zauderer applies only to
situations in which the government requires disclosures to
prevent consumer deception, pointing out that we were
joining the holdings of several of our sister circuits. Id. at
1116–17 (citing Am. Meat Inst. v. U.S. Dep’t of Agric.,
760 F.3d 18 (D.C. Cir. 2014) (en banc); Disc. Tobacco City
& Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012);
N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114(2d Cir. 2009); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d
104 (2d Cir. 2001)).
NIFLA requires us to reexamine how we approach a First
Amendment claim concerning compelled speech. But
nothing in NIFLA suggests that CTIA was wrongly decided.
To the contrary, NIFLA preserved the exception to heightened
scrutiny for health and safety warnings. The Supreme Court
made clear that it was not calling into “question the legality
of health and safety warnings long considered permissible.”
NIFLA, 138 S. Ct. at 2376.4 NIFLA did not address, and a
4
Judge Ikuta’s special concurrence reads this portion of NIFLA to
mean that only certain health and safety warnings (those of ancient origin)
are excepted from heightened scrutiny. But the most natural reading of
this passage in the Court’s opinion is that required health and safety
warnings, which have long been permitted, are still allowed. In this
statement, the NIFLA majority was countering Justice Breyer’s dissent,
which lists examples of such warnings, including both mandatory advice
concerning seat belts and mandatory advice about the availability of a
14 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
fortiori did not disapprove, the circuits’ precedents, including
CTIA, which have unanimously held that Zauderer applies
outside the context of misleading advertisements. See CTIA,
854 F.3d at 1116–17 (citing cases from the D.C., Second, and
Sixth Circuits). In short, we reaffirm our reasoning and
conclusion in CTIA that Zauderer provides the appropriate
framework to analyze a First Amendment claim involving
compelled commercial speech—even when the government
requires health and safety warnings, rather than warnings to
prevent the deception of consumers. CTIA, 854 F.3d at 1117.
We therefore proceed to apply Zauderer to Defendant’s
required warning.
B. Application of the Zauderer test
The Zauderer test, as applied in NIFLA, contains three
inquiries: whether the notice is (1) purely factual,
(2) noncontroversial, and (3) not unjustified or unduly
burdensome. A compelled disclosure accompanying a related
product or service must meet all three criteria to be
constitutional. NIFLA, 138 S. Ct. at 2372. Neither NIFLA
nor any other Supreme Court precedent requires that we
apply these criteria in any particular order. The NIFLA
Court’s analysis began with the question whether the notice
was “unjustified or unduly burdensome.” Id. at 2377 (citing
Zauderer, 471 U.S. at 651). By following the same sequence,
we do not suggest that courts must begin by analyzing
whether a disclosure requirement is unjustified or unduly
whooping cough vaccine, 138 S. Ct. at 2380–81. There is no indication
that either of those required disclosures is of ancient origin or that the
majority intended some health and safety warnings (if accurate,
uncontroversial, and not unduly burdensome) to be precluded merely
because the knowledge that the warnings convey is new.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 15
burdensome, but we find it useful to begin with that prong
here. Defendant has the burden of proving that the warning
is neither unjustified nor unduly burdensome. Ibanez v. Fla.
Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 146 (1994).
On this preliminary record, Defendant has not carried its
burden.5
Defendant’s argument that the border and 20% size
requirements adhere to the best practices for health and safety
warnings is unpersuasive. We recognize that some tobacco
and prescription warnings must occupy at least 20% of those
products’ labels or advertisements. Am. Beverage Ass’n v.
City & County of San Francisco, 187 F. Supp. 3d 1123,
1138–39 (N.D. Cal. 2016). And Defendant’s expert
concluded that larger warnings are more effective. But the
record here shows that a smaller warning—half the
size—would accomplish Defendant’s stated goals.
Defendant’s expert cited and discussed a study that
examined a warning similar to that required by the
Ordinance.6 That study used warnings covering only 10% of
the image. The expert concluded that the cited study
“provides empirical support that the message content and
5
Contrary to Judge Ikuta’s characterization, we do not preclude
Defendant from arguing that the Ordinance survives heightened scrutiny.
Concurrence at 28. Logically, though, if the warning does not meet a
lower standard, it necessarily does not meet a higher standard. See
NIFLA, 138 S. Ct. at 2377 (“Even under Zauderer, a disclosure
requirement cannot be ‘unjustified or unduly burdensome.’” (quoting
Zauderer, 471 U.S. at 651)).
6
The study’s warning read “Safety Warning: Drinking beverages
with added sugar[s] contributes to obesity, diabetes, and tooth decay,” and
included a border.
16 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
design of the San Francisco warning is associated [with] an
improved understanding of health harms associated with
overconsumption of SSBs and may reduce the purchase of
SSBs—two of the primary objectives identified in the San
Francisco ordinance.” The findings of that study thus
undermine Defendant’s position, because the findings suggest
that the Ordinance’s goals could be accomplished with a
smaller warning. On this record, therefore, the 20%
requirement is not justified when balanced against its likely
burden on protected speech.
In addition, the argument that the Ordinance incorporates
best practices does not respond to the First Amendment
balancing test that we must apply. Although the disclosures
in NIFLA were more onerous than the Ordinance’s disclosure,
similar concerns are present here: Defendants have not
shown that the contrasting rectangular border containing a
warning that covers 20% of the advertisement does not
“drown[] out” Plaintiffs’ messages and “effectively rule[] out
the possibility of having [an advertisement] in the first place.”
138 S. Ct. at 2378 (internal quotation marks omitted). On this
record, therefore, the 20% requirement is not justified and is
unduly burdensome when balanced against its likely burden
on protected speech.
To be clear, we do not hold that a warning occupying
10% of product labels or advertisements necessarily is valid,
nor do we hold that a warning occupying more than 10% of
product labels or advertisements necessarily is invalid. See
id. (“We express no view on the legality of a similar
disclosure requirement that is better supported or less
burdensome.”). Rather, we hold only that, on this record,
Defendant has not carried its burden to demonstrate that the
Ordinance’s requirement is not “unjustified or unduly
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 17
burdensome.” See id. at 2377. The required warnings
therefore offend Plaintiffs’ First Amendment rights by
chilling protected speech. See id. at 2378 (“[The notice]
imposes an unduly burdensome disclosure requirement that
will chill [the speaker’s] protected speech.”).
The Supreme Court made clear in NIFLA that a
government-compelled disclosure that imposes an undue
burden fails for that reason alone. Id. at 2377. Indeed, the
Court ended its own analysis with that holding. Id. at 2378.
We need not, and therefore do not, decide whether the
warning here is factually accurate and noncontroversial.
The remaining factors of the preliminary injunction test
also favor an injunction. Because Plaintiffs have a colorable
First Amendment claim, they have demonstrated that they
likely will suffer irreparable harm if the Ordinance takes
effect. See Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014)
(“A colorable First Amendment claim is irreparable injury
sufficient to merit the grant of relief.” (internal quotation
marks omitted)). Next, “[t]he fact that [Plaintiffs] have raised
serious First Amendment questions compels a finding that . . .
the balance of hardships tips sharply in [Plaintiffs’] favor.”
Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th
Cir. 2007) (internal quotation marks omitted). Finally, we
have “consistently recognized the significant public interest
in upholding First Amendment principles.” Doe, 772 F.3d at
583 (internal quotation marks omitted). Indeed, “it is always
in the public interest to prevent the violation of a party’s
constitutional rights.” Melendres v. Arpaio, 695 F.3d 990,
1002 (9th Cir. 2012) (internal quotation marks omitted).
In summary, Plaintiffs have met each of the requirements
for a preliminary injunction. We therefore conclude that the
18 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
district court abused its discretion by denying Plaintiffs’
motion.
REVERSED and REMANDED.
IKUTA, Circuit Judge, dissenting from most of the reasoning,
concurring in the result:
In National Institute of Family & Life Advocates v.
Becerra (NIFLA), the Supreme Court provided a framework
for analyzing First Amendment challenges to government-
compelled speech. 138 S. Ct. 2361 (2018). Under this
framework, a government regulation that compels a
disclosure (like the San Francisco ordinance in this case) is a
content-based regulation of speech, which is subject to
heightened scrutiny under the First Amendment unless the
Zauderer exception applies. The majority fails to follow this
analytical framework and makes several crucial errors. I
therefore dissent.
I
NIFLA broke new ground on several key issues.
Although the Court has previously considered the
constitutionality of government regulations requiring lawyers
to disclose certain information in their advertisements, see
Zauderer v. Office of Disciplinary Counsel of Supreme Court
of Ohio, 471 U.S. 626, 650–51 (1985); see also Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. 229,
250–52 (2010); Ohralik v. Ohio State Bar Ass’n, 436 U.S.
447, 457–59 (1978), NIFLA is the first Supreme Court case
to apply Zauderer to commercial speech more generally.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 19
NIFLA considered the constitutionality of a California
statute that required clinics that primarily served pregnant
women to post government-drafted notices. NIFLA, 138 S.
Ct. at 2368. State-licensed clinics were required to post a
notice that stated: “California has public programs that
provide immediate free or low-cost access to comprehensive
family planning services (including all FDA-approved
methods of contraception), prenatal care, and abortion for
eligible women.” Id. at 2369 (referred to as the “licensed
notice”). Unlicensed clinics were required to post a notice
stating that the “facility is not licensed as a medical facility
by the State of California and has no licensed medical
provider who provides or directly supervises the provision of
services.” Id. at 2370 (referred to as the “unlicensed notice”).
Two crisis pregnancy centers, among other plaintiffs, brought
suit, claiming that both the licensed and unlicensed notices
violated their First Amendment rights.
NIFLA began by making two important contributions to
First Amendment jurisprudence. First, in its consideration of
the two government disclosure requirements, NIFLA
established, for the first time, that government-compelled
speech is a content-based regulation of speech.1 The Court
explained that “[b]y compelling individuals to speak a
particular message,” the licensed notices “alter[ed] the
content of [their] speech” and thus were content-based
regulations. Id. at 2371. Such content-based regulations “are
1
This holding arguably supersedes Zauderer, which appeared to
apply rational basis review to laws requiring attorneys to make certain
disclosures, stating, “we hold that an advertiser’s rights are adequately
protected as long as disclosure requirements are reasonably related to the
State’s interest in preventing deception of consumers.” See Zauderer,
471 U.S. at 651.
20 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
presumptively unconstitutional and may be justified only if
the government proves that they are narrowly tailored to
serve compelling state interests.” Id.Second, NIFLA made clear that governments may not
“impose content-based restrictions on speech without
persuasive evidence of a long (if heretofore unrecognized)
tradition to that effect.” Id. (cleaned up). The Court therefore
rejected a line of circuit court cases holding that professional
speech is exempt “from the rule that content-based
regulations of speech are subject to strict scrutiny.” Id. at
2371–72. In doing so, NIFLA overruled our opinion in Pickup
v. Brown, 740 F.3d 1208 (9th Cir. 2014), as well as a line of
decisions in the Third and Fourth Circuits, see, e.g., King v.
Governor of N.J., 767 F.3d 216 (3d Cir. 2014); Moore-King
v. Cty. of Chesterfield, 708 F.3d 560 (4th Cir. 2013). Further,
NIFLA emphasized that “[t]his Court has been reluctant to
mark off new categories of speech for diminished
constitutional protection.” Id. at 2372 (internal quotation
marks omitted). While the Court did not “question the
legality of health and safety warnings long considered
permissible,” id. at 2376, the Court did not create a
standalone exception for such content-based restrictions.
Instead, NIFLA reiterated that a category of speech is exempt
from heightened scrutiny under the First Amendment only if
the state can show a “long (if heretofore unrecognized)
tradition to that effect.” Id. at 2372.
Against this backdrop, the Court established its analytic
framework. A government regulation “compelling
individuals to speak a particular message” is a content-based
regulation that is subject to strict scrutiny, subject to two
exceptions. Id. at 2372–73. First, the Court held that its
precedents (most notably Zauderer, 471 U.S. at 650) afforded
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 21
more deferential review to “some laws that require
professionals to disclose factual, noncontroversial
information in their ‘commercial speech.’” NIFLA, 138 S.
Ct. at 2372. Second, states may regulate professional
conduct, even though that conduct incidentally involves
speech, such as through informed consent requirements. Id.;
see also Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833, 884 (1992).
To determine whether the Zauderer exception applies, a
court must consider whether the compelled speech governs
only [1] “commercial advertising” and requires the disclosure
of [2] “purely factual and [3] uncontroversial information
about [4] the terms under which . . . services will be
available.” NIFLA, 138 S. Ct. at 2372 (internal quotation
marks and citations omitted). If the government regulation
meets those requirements, the regulation should be upheld
unless it is [5] “unjustified or [6] unduly burdensome.” Id.If the regulation does not qualify for the Zauderer
exception, the regulation must survive heightened scrutiny to
avoid violating the First Amendment. Id. at 2372. The Court
did not decide whether strict scrutiny or intermediate scrutiny
applies to government-compelled commercial disclosures that
do not fall under the Zauderer exception. See id.Applying this legal framework to both the licensed and
unlicensed notice requirements, the Court held that neither
regulation survived First Amendment scrutiny. The Court
began by considering the notices required for licensed clinics.
Id. at 2371–72. It first determined that the Zauderer
exception did not apply for two reasons. Id. at 2372. First,
the licensed notice was “not limited to purely factual and
uncontroversial information about the terms under which . . .
22 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
services w[ould] be available,” because the notice “in no way
relate[d] to the services that licensed clinics provide.” Id.(internal quotation marks and citations omitted). Second, the
notice was not limited to uncontroversial information,
because abortion is “anything but an ‘uncontroversial’ topic.”
Id.Because the Zauderer exception did not apply (and
because the exception applicable to regulations of conduct
that incidentally burdens speech, such as informed consent
requirements, did not apply, see id. at 2373–74), the Court
then considered whether the licensed notice requirement
survived heightened scrutiny. The Court declined to
determine whether strict scrutiny or intermediate scrutiny
applied to the licensed notice, because that notice failed even
under intermediate scrutiny. Id. at 2375. Even assuming the
state had a substantial state interest in providing low-income
women with information about state-sponsored services, the
Court held that the licensed notice was not sufficiently drawn
to achieve this interest: it was underinclusive, imprecisely
drawn, and could have been replaced with less intrusive
alternatives. Id. at 2375–76.
Turning to the notice required for unlicensed clinics, the
Court again began by considering the applicability of the
Zauderer exception. Id. at 2376–77. Because the unlicensed
notice stated only that the “facility is not licensed as a
medical facility by the State of California and has no licensed
medical provider who provides or directly supervises the
provision of services,” the Court did not need to address the
threshold Zauderer factors; it was apparent that the
unlicensed notice required the disclosure of purely factual and
uncontroversial information about the terms under which
services would be available. See id. at 2377. The Court
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 23
instead focused on whether the notice requirement was
unjustified or unduly burdensome. See id. The Court
concluded that California had not satisfied its burden of
proving that the unlicensed notice requirement satisfied these
two prongs, because “California has not demonstrated any
justification for the licensed notice that is more than “purely
hypothetical,’” id., and the notice unduly burdened protected
speech, id. at 2377–78. The Court held that the notice was
underinclusive because it covered “a curiously narrow subset
of speakers.” Id. at 2377. Moreover, the notice would have
a chilling effect because the statute required that the
government-drafted statement be in “larger text [than
surrounding text] or contrasting type or color” and be posted
in as many as 13 different languages. Id. at 2378. These
requirements would “drown[] out the facility’s own
message.” Id.In contrast to its analysis of the licensed notice, the Court
did not address the question whether the unlicensed notice
requirement survived heightened scrutiny; there was no need
to do so, because California did “not explain how the
unlicensed notice could satisfy any standard other than
Zauderer.” Id. at 2377 n.3. In other words, because the state
did not make a colorable argument that the unlicensed notice
requirement would survive heightened scrutiny, there was no
dispute that the notice requirement violated the unlicensed
clinics’ First Amendment rights unless the Zauderer
exception applied. Because Zauderer did not apply, the
unlicensed notice requirement was invalid, and the Court did
not have to proceed further.
24 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
II
Under NIFLA, San Francisco’s ordinance requiring
companies who advertise certain sugar-sweetened beverages
on billboards within San Francisco to include a warning
message constitutes a “content-based regulation of speech”
subject to heightened scrutiny unless an exception applies.
Turning first to the Zauderer exception, a court should
consider whether the regulation requires the disclosure of
purely factual and uncontroversial information about the
terms under which services will be available. The required
warning states:
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.
S.F. Health Code § 4203(a).
This warning does not provide “purely factual and
uncontroversial information about the terms under which . . .
services will be available.” Cf. NIFLA, 138 S. Ct. at 2372;
Zauderer, 471 U.S. at 651. The factual accuracy of the
warning is disputed in the record. Among other things, the
warning is contrary to statements by the FDA that added
sugars are “generally recognized as safe,” 21 C.F.R. §§ 184.1,
184.1866, and “can be a part of a healthy dietary pattern”
when not consumed in excess amounts, 81 Fed. Reg. 33,742,
33,760 (May 27, 2016). Moreover, as Judge Christen’s
concurrence points out, the disclosure is literally false with
respect to Type I diabetes. MBC Op. at 34–35. Although
NIFLA did not define “uncontroversial,” the warning here
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 25
requires the advertisers to convey San Francisco’s one-sided
policy views about sugar-sweetened beverages. The record
shows this is a controversial topic, and therefore, the
ordinance does not qualify as “uncontroversial information”
under the third prong of NIFLA. Finally, the warning does
not relate to the terms on which the advertisers provide their
services. The warning merely relates to the consumption of
sugar-sweetened beverages, which is a product rather than a
service, and does not address the terms on which that product
is provided.
Even if the warning requirement provided factual and
uncontroversial information about the terms of service, the
requirement would fail because it is unduly burdensome. As
the majority acknowledges, the warning’s size, required font
size, contrasting color, and other requirements contribute to
the severity of the warning’s burden. Maj. Op. at 15–16.
NIFLA makes clear that requiring commercial speakers, like
the unlicensed clinics in NIFLA, to fight a government-
scripted message that drowns out their own advertisements is
unduly burdensome. Moreover, the record indicates that the
warning label would have a chilling effect, causing some
manufacturers of sugar-sweetened beverages to cease
advertising on covered media. Therefore, the Zauderer
exception does not apply.
Nor does any other exception apply.2 The majority is
wrong to the extent it suggests that “NIFLA preserved the
exception to heightened scrutiny for health and safety
warnings.” Maj. Op. at 13. NIFLA made clear that only
2
Obviously, the warning requirement does not constitute a regulation
of professional conduct that incidentally involves speech, such as
informed consent requirements.
26 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
“health and safety warnings long considered permissible”
would be excepted. See 138 S. Ct. at 2376. California has
made no showing that the warning here was “long considered
permissible,” nor could it do so. The types of speech exempt
from First Amendment protection are “well-defined and
narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any
Constitutional problem,” from 1791 to present. See United
States v. Stevens, 559 U.S. 460, 468–69 (2010). These
limited exceptions include defamation, obscenity, and fraud,
see id., not newly invented classes of speech, see NIFLA,
138 S. Ct. at 2371–72. NIFLA did not specify what sorts of
health and safety warnings date back to 1791, but warnings
about sugar-sweetened beverages are clearly not among them.
Indeed, the First Amendment applies even to products that
pose more obvious threats to health and safety, such as
cigarettes. In a case involving restrictions on cigarette
advertisements, the Court held that the “First Amendment
also constrains state efforts to limit the advertising of tobacco
products, because so long as the sale and use of tobacco is
lawful for adults, the tobacco industry has a protected interest
in communicating information about its products and adult
customers have an interest in receiving that information.”
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001).
Given this context, our precedents creating a First
Amendment exception for government-compelled health and
safety warnings, see CTIA–The Wireless Ass’n v. City of
Berkeley, Calif., 854 F.3d 1105, 1116–17 (9th Cir. 2017),
vacated, 138 S. Ct. 2708 (2018), are no more persuasive than
our precedents creating a First Amendment exception for
professional speech, which were struck down by NIFLA. In
neither case is there a long tradition of government regulation
dating back to 1791.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 27
Because Zauderer does not apply here, NIFLA directs us
to consider whether the ordinance survives heightened
scrutiny. Under intermediate scrutiny, even assuming that
there is a substantial state interest in warning the public of
health dangers from drinking sugar-sweetened beverages, the
warning requirement is not sufficiently drawn to that interest.
First, the requirement is underinclusive both as to the covered
products and as to the means of advertisement. The
ordinance does not even apply to all sugar-sweetened
beverages, much less all sugar-sweetened products.
Moreover, it applies to posters and billboards, but not digital
ads or other types of media. Like the notices in NIFLA, the
warning requirement is “wildly underinclusive.” See 138 S.
Ct. at 2367. Second, San Francisco could disseminate health
information by other, less burdensome means, such as a less
intrusive notice or a public health campaign. Cf. id. at 2376.
Because the warning requirement is not narrowly drawn, it
does not survive even intermediate scrutiny. Thus, it is not
necessary to determine whether strict or intermediate scrutiny
applies here.
III
While the majority correctly concludes that the
advertisers have shown a likelihood of prevailing on the
merits of their First Amendment claims, the majority fails to
follow the analytic framework set out in NIFLA and makes
several crucial errors.
First, the majority errs by skipping over the threshold
question regarding Zauderer’s applicability, namely whether
the notice requirement applies to commercial advertising and
requires the disclosure of purely factual and uncontroversial
information about the terms under which services will be
28 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
available. Despite focusing primarily on the undue burden
prong, the majority fails to provide any guidance regarding
when a warning is unjustified or unduly burdensome. Instead
of following NIFLA in considering the totality of the
requirements of the unlicensed notice and their effect on the
speaker (there, the clinics) to conclude that the unlicensed
notice was unduly burdensome, see 138 S. Ct. at 2378, the
majority seems to suggest that the test is whether a smaller
warning would accomplish San Francisco’s stated goals.
Maj. Op. at 15–16.
Most important, the majority errs by failing to consider
whether San Francisco’s ordinance could be upheld under
heightened scrutiny even if the Zauderer exception does not
apply. The majority concedes that it does not “preclude [San
Francisco] from arguing that the Ordinance survives
heightened scrutiny.” Maj. Op. at 15 n.5. And here, San
Francisco has done just that, arguing vigorously that its
ordinance survives intermediate scrutiny. The majority fails
to address this argument, apparently on the ground that
“logically” any such argument would be futile because “if the
warning does not meet a lower standard, it necessarily does
not meet a higher standard.” Maj. Op. at 15 n.5. This
reasoning is flawed. A government regulation, for instance,
may require a commercial speaker to include images of dying
cancer patients on cigarette packages. See, e.g., Required
Warnings for Cigarette Packages and Advertisements,
75 Fed. Reg. 69,524, 69,533 (Nov. 12, 2010) (proposed rule).
While a court might conclude that such compelled speech is
not “purely factual and uncontroversial,” the court might
nevertheless conclude that the regulation meets the test under
Central Hudson Gas & Electric Corp. v. Public Service
Commission of New York, 447 U.S. 557, 563–65 (1980)
(assuming this case provides the applicable test), because the
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 29
government has a substantial interest in discouraging
smoking, the regulation directly and materially advances the
interest, and the restriction is narrowly tailored to discourage
young people from smoking (based on expert opinion). In
any event, the majority is bound by NIFLA, which requires
courts to consider such arguments: NIFLA applied
heightened scrutiny to the licensed notice and indicated that
it would have applied heightened scrutiny to the unlicensed
notice had California made any arguments on that point. See
NIFLA, 138 S. Ct. at 2377 n.3. The majority’s failure to
address San Francisco’s argument is therefore contrary to
Supreme Court direction.
Because the Associations have shown a likelihood of
prevailing on the merits and because the other factors for
granting a preliminary injunction weigh in the Associations’
favor, I agree with the majority’s conclusion that the district
court abused its discretion by denying the Associations’
motion for a preliminary injunction. But because the
majority fails to apply NIFLA’s framework for analyzing
when government-compelled speech violates the First
Amendment, I dissent from the majority’s reasoning.
CHRISTEN, Circuit Judge, joined by THOMAS, Chief
Judge, concurring in part and concurring in the judgment:
I agree with the majority that Zauderer’s framework
applies to the government-compelled speech at issue in this
case. See Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626, 651 (1985). I also agree that the district court’s
decision must be reversed, but I would not reach the issue the
majority relies upon. I would reverse because the City and
30 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
County of San Francisco cannot show that the speech it seeks
to compel is “purely factual[.]” Id. For this reason, San
Francisco’s proposed warning fails what should be the
threshold inquiry in this case, and it violates the First
Amendment.
Zauderer considered an attorney’s First Amendment
challenge to a state bar rule. Id. at 632–33, 659 n.3. For
attorneys advertising that their clients would not pay fees if
their lawsuits were unsuccessful, the rule required disclosure
that the clients would still be liable for litigation costs. Id.The Court held that the bar rule did not violate the First
Amendment. In reaching this result, the Court observed that
“disclosure requirements trench much more narrowly on an
advertiser’s interests than do flat prohibitions on speech[.]”
Id. at 651. It was critical to the Court’s decision that the bar
rule was intended to prevent consumer deception; the Court
stressed that the rule required only the inclusion of “purely
factual and uncontroversial information about the terms under
which [an attorney’s] services will be available.” Id.(emphasis added).
Any sort of compelled speech potentially infringes First
Amendment rights, and case law approves government-
mandated messages only in very limited contexts. See, e.g.,
Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S.
229, 249–50 (2010) (upholding requirement that lawyers
disclose certain information in advertisements to prevent
consumer deception); Pharm. Care Mgmt. Ass’n v. Rowe,
429 F.3d 294, 310 (1st Cir. 2005) (per curiam) (upholding
requirement that pharmacy benefit managers disclose
conflicts of interest and certain financial arrangements); Nat’l
Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113–15 (2d Cir.
2001) (upholding labeling requirement intended to increase
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 31
consumer awareness about the amount of mercury in
products). Where a government-compelled message “does
not require the disclosure of purely factual information” and
instead “compels the carrying of the [government’s]
controversial opinion[,]” it is clearly “unconstitutionally
compelled speech[.]” Video Software Dealers Ass’n v.
Schwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009), aff’d sub
nom. Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011).
Zauderer and subsequent case law leave no doubt that any
government-compelled speech must be, at the very least,
factually accurate.
The majority acknowledges that National Institute of
Family & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct.
2361 (2018), does not require courts to begin the Zauderer
analysis by addressing whether the compelled speech is
unjustified or unduly burdensome; NIFLA did not modify
Zauderer. NIFLA struck down a California law requiring that
clinics primarily serving pregnant women provide certain
notices. See id. at 2378. Licensed clinics were required to
post notices that California provides free or low-cost services,
including abortions, and unlicenced clinics were required to
give notice that they were not licensed to provide medical
services. Id. at 2369. NIFLA held that the speech imposed
upon licensed clinics did not satisfy Zauderer because, unlike
the disclosure required for attorneys’ services ads, the notice
regarding the availability of abortion services did not “relate[]
to the services that licensed clinics provide[d],” and it
concerned the controversial topic of abortion. Id. at 2372.
The notice that unlicensed clinics were compelled to post
violated the First Amendment because, “[e]ven under
Zauderer, a disclosure requirement cannot be ‘unjustified or
unduly burdensome,’” and the Court ruled that California did
not demonstrate any justification for the compelled speech
32 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
that was more than purely hypothetical. Id. at 2377 (quoting
Zauderer, 471 U.S. at 651).
Here, our court holds that Zauderer requires compelled
speech to be (1) purely factual; (2) noncontroversial; and
(3) not unjustified or unduly burdensome. Additionally, the
compelled speech must relate to the speaker’s services or
products. Where I differ is with the majority’s application of
the test. The majority skips whether San Francisco’s
compelled warning is factually accurate and jumps straight to
asking whether the proposed warning is “unjustified or
unduly burdensome.” The court reasons that NIFLA made
clear that “a government-compelled disclosure that imposes
an undue burden fails for that reason alone,” but the same is
true of Zauderer’s other requirements. The majority’s
decision to follow NIFLA and address the “unduly
burdensome” question first overlooks that there was no
dispute in NIFLA about the factual accuracy of the compelled
speech. We have no precedent addressing a government
proposal to appropriate commercial advertising space for the
purpose of conveying a factually inaccurate message, but
where, as here, the parties disagree about the veracity of
compelled speech, the court should begin by asking whether
the government’s message is objectively true. Deciding
whether a compelled message is controversial or unduly
burdensome will often entail much more subjective
judgments. If compelled speech is not factually accurate, the
court’s inquiry should end.
San Francisco seeks to require that advertisements for
sugar-sweetened beverages include the following:
WARNING: Drinking beverages with added
sugar(s) contributes to obesity, diabetes, and
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 33
tooth decay. This is a message from the City
and County of San Francisco.
To survive the “purely factual” part of Zauderer’s test, the
statement that beverages with added sugars “contribute[] to”
obesity, diabetes, and tooth decay, must be true—yet there is
no evidence that it is. To the contrary, “diabetes” is an
umbrella term referring to both type 1 diabetes (sometimes
called juvenile-onset or insulin-dependent diabetes) and type
2 diabetes. Rather than using the generic term “diabetes,”
medical studies investigating causation are careful to
differentiate between the two forms of the disease.1 The
precise causes of type 1 diabetes are unknown, but genetic
and environmental factors, including viruses, are thought to
contribute to its development.2 Research demonstrates a
correlation between the consumption of sugar-sweetened
beverages and the development of type 2 diabetes,3 but San
Francisco has not shown that there is any association at all
between consumption of sugar-sweetened beverages and the
development of type 1 diabetes. Ironically, the American
Diabetes Association directly addresses this on its “Diabetes
1
See, e.g., M. Vanstone et al., Patient Perspectives on Quality of Life
with Uncontrolled Type 1 Diabetes Mellitus: A Systematic Review and
Qualitative Meta-synthesis, 15 ONTARIO HEALTH TECH. ASSESSMENT
SERIES 1 (2015); Vasanti S. Malik et al., Sugar-Sweetened Beverages,
Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk,
121 CIRCULATION 1356 (2010).
2
See Type 1 Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 7,
2017), https://www.mayoclinic.org/diseases-conditions/type-1-
diabetes/symptoms-causes/syc-20353011.
3
See, e.g., Vasanti S. Malik et al., Sugar-Sweetened Beverages and
Risk of Metabolic Syndrome and Type 2 Diabetes: A Meta-Analysis,
33 DIABETES CARE 2477 (2010).
34 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
Myths” webpage, stating that type 1 diabetes is not caused by
sugar, it “is caused by genetics and unknown factors that
trigger the onset of the disease.”4 The message that drinking
sugar-sweetened beverages “contributes to” diabetes
(including type 1 diabetes) is not only not “purely factual and
uncontroversial,” it is devoid of scientific support. See
Zauderer, 471 U.S. at 651.
In this particular case, it cannot be doubted that the
government’s proposed message is controversial: it would
require that manufacturers, retailers, and advertisers include
in their ads, under a banner that begins “Warning,” the
message that their product contributes to diabetes even
though the causes of type 1 diabetes are not actually known.5
Thus, in addition to being factually inaccurate, San
Francisco’s proposed warning also fails Zauderer’s
requirement that the compelled speech be uncontroversial.
Though I would strike the warning under either the first or
second part of Zauderer’s test, my view is that, given the
facts of this case, we should treat Zauderer’s “purely factual”
inquiry as the threshold question because it provides a much
more objective basis for disqualifying San Francisco’s
compelled speech. It is possible to envision a scenario in
which the “unjustified or unduly burdensome” inquiry could
provide a more objective basis for striking a government-
mandated message. For example, that could occur if
determining the accuracy of a proposed message was not as
4
See Diabetes Myths, AMERICAN DIABETES ASSOC.,
http://www.diabetes.org/diabetes-basics/myths/ (last updated Aug. 20,
2018).
5
See Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 8, 2018),
https://www.mayoclinic.org/diseases-conditions/diabetes/symptoms-
causes/syc-20371444.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 35
cut-and-dried as it is here, or if the government tried to
commandeer the majority of available ad space. This is not
one of those cases. Because San Francisco’s compelled
warning undeniably fails Zauderer’s “purely factual” hurdle,
we should not reach whether the message is uncontroversial
or unduly burdensome; both of those inquiries require the
court to make more subjective judgments.
San Francisco argues that its warning must not be read too
literally, and that consumers will understand that its warning
refers to type 2 diabetes. But the contention that a reasonable
person would understand San Francisco’s intended message
is in tension with the goal of having a public health message
understood by the maximum number of consumers, not just
those with sophisticated levels of health literacy. Because the
message would be conveyed to sophisticated and
unsophisticated consumers, we must read it literally.
Relatedly, San Francisco acknowledges that not every
consumer of sugary drinks will become obese or suffer from
tooth decay or diabetes. It argues that readers will understand
that its warning is intended to convey a community-wide
message: that consuming sugar-sweetened beverages will
lead to more instances of obesity, diabetes, and tooth decay
within the City and County as a whole. But even if the
qualifier “may” is read into the message, and the warning is
understood as “sugary drinks may contribute to obesity,
diabetes and tooth decay on a community-wide basis,” it
remains untrue with regard to type 1 diabetes.
Finally, San Francisco’s compelled message is
problematic because it suggests that sugar is always
dangerous for diabetics. In fact, consuming sugar-sweetened
beverages can be medically indicated for a type 1 diabetic
36 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
when there are signs of hypoglycemia, a complication of type
1 diabetes, because drinking fruit juice or soda raises blood
sugar levels quickly.6
Insisting that compelled speech be purely factual may
seem persnickety, but there are significant constitutional
implications whenever the government seeks to control our
speech. There are also societal consequences to inaccurate
government-mandated messages. In one study, over eighty
percent of parents of children with type 1 diabetes and over
seventy percent of patients with type 1 diabetes, reported that
they are stigmatized, most commonly by the perception that
diabetes is a character flaw or the result of a failure in
personal responsibility.7
San Francisco may be commended for aiming to address
serious and growing public health problems, but by
compelling speech that is not factually accurate, it runs afoul
of Zauderer’s caution—“in some instances compulsion to
speak may be as violative of the First Amendment as
prohibitions on speech.” Zauderer, 471 U.S. at 650. When
the government takes the momentous step of mandating that
its message be delivered by private parties, it is exceptionally
important that the compelled speech be purely factual.
For these reasons, though I reach the same result as the
majority, I would hold that the warning San Francisco seeks
6
See Type 1 Diabetes: Diagnosis & Treatment, MAYO CLINIC (Aug.
7, 2017), https://www.mayoclinic.org/diseases-conditions/type-1-diabetes/
diagnosis-treatment/drc-20353017.
7
See Nancy F. Liu et al., Stigma in People with Type 1 or Type 2
Diabetes, 35 CLINICAL DIABETES J. 27 (2017).
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 37
to compel fails the threshold requirement of factual accuracy,
and end the Zauderer analysis there.
NGUYEN, Circuit Judge, concurring in the judgment:
In Central Hudson, the Supreme Court held that
regulation of commercial speech is evaluated under an
intermediate scrutiny standard. See Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980)
(requiring that commercial speech regulation “directly
advances” a “substantial” governmental interest and “is not
more extensive than is necessary to serve that interest”).
Prior to applying this standard, however, courts must first
determine whether the speech at issue “is false, deceptive, or
misleading.” Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626, 638 (1985); see Central Hudson, 447 U.S. at
566. If the regulation addresses speech that falls into one of
these categories, then Zauderer’s rational basis test applies.
See Zauderer, 471 U.S. at 651 (holding that disclosure
requirements comport with the First Amendment “as long as
[they] are reasonably related to the State’s interest in
preventing deception of consumers” (emphasis added)). With
almost all other types of regulations,1 “the government’s
power is more circumscribed,” Central Hudson, 447 U.S. at
564, and Central Hudson’s intermediate scrutiny applies.
1
Presumably, the rational basis test also applies to “commercial
speech related to illegal activity,” Cent. Hudson, 447 U.S. at 564, which,
like other deceptive speech, deserves less constitutional protection, see id.at 563–64.
38 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
I disagree with the majority’s expansion of Zauderer’s
rational basis review to commercial speech that is not false,
deceptive, or misleading. In the majority’s view, Zauderer
applies to regulations requiring public health disclosures. But
it is the commercial message’s accuracy—not its
completeness—that demarcates the boundary between
Central Hudson’s intermediate scrutiny and Zauderer’s
rational basis test. “The First Amendment’s concern for
commercial speech is based on the informational function of
advertising.” Id. at 563. “Even when advertising
communicates only an incomplete version of the relevant
facts, the First Amendment presumes that some accurate
information is better than no information at all.”2 Id. at 562.
The Supreme Court stressed that “Zauderer governs our
review” rather than Central Hudson when a statute is
“directed at misleading commercial speech.” Milavetz,
Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249
(2010) (emphasis in original). That the “required disclosures
are intended to combat the problem of inherently misleading
commercial advertisements” is one of the “essential features
of the rule at issue in Zauderer.” Id. at 250. By treating the
“false or misleading” requirement as non-essential, the
majority invites reversal.
2
The analysis does not differ simply because Central Hudson
involved prohibited content and the instant case involves mandated
content. A law compelling the publication of certain content “operates as
a command in the same sense as a statute or regulation forbidding [a
business] to publish specified matter.” Miami Herald Publ’g Co. v.
Tornillo, 418 U.S. 241, 256 (1974); see also Wooley v. Maynard, 430 U.S.
705, 714 (1977) (“[T]he right of freedom of thought protected by the First
Amendment against state action includes both the right to speak freely and
the right to refrain from speaking at all.”).
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 39
The Supreme Court recently had the opportunity to
expand Zauderer’s application beyond deceptive speech but
declined to do so. See Nat’l Inst. of Family & Life Advocates
v. Becerra (“NIFLA”), 138 S. Ct. 2361, 2376–77 (2018).
Instead, the Court reiterated its “reluctan[ce] to mark off new
categories of speech for diminished constitutional
protection.” NIFLA, 138 S. Ct. at 2372 (quoting Denver Area
Educ. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727,
804 (1996) (Kennedy, J., dissenting in part, concurring in
judgment in part, and dissenting in part)). The Court was
“especially reluctant to ‘exempt a category of speech from the
normal prohibition on content-based restrictions.’” Id.(quoting United States v. Alvarez, 567 U.S. 709, 722 (2012)
(plurality opinion)) (alteration in NIFLA omitted).
The majority’s application of Zauderer to San Francisco’s
sugary beverage ordinance is particularly troubling given that
it regulates speech based on content. The ordinance applies
to “any advertisement . . . that identifies, promotes, or
markets a Sugar-Sweetened Beverage for sale or use” in
specified media. S.F. Health Code § 4202. To the extent San
Francisco is concerned about the health effects of sugar in
food and beverages, its focus on a specific subset of sugar-
laden products is not evenhanded. See Reed v. Town of
Gilbert, 135 S. Ct. 2218, 2232 (2015). And a requirement for
any vendor of sugary products to convey a particular message
“is a content-based regulation of speech.” NIFLA, 138 S. Ct.
at 2371. While San Francisco’s goal of reducing obesity is
laudable, the appropriate level of scrutiny does not turn on the
government’s good intent.
I join my colleagues who have previously disagreed with
applying Zauderer outside the context of false and misleading
speech, see CTIA–The Wireless Ass’n v. City of Berkeley,
40 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO
854 F.3d 1105, 1125 n.2 (9th Cir. 2017) (Friedland, J.,
concurring in part and dissenting in part) (suggesting that
“Zauderer applies only when the government compels a
truthful disclosure to counter a false or misleading
advertisement”), vacated and remanded for reconsideration
in light of NIFLA, 138 S. Ct. 2708 (2018), and I share their
concerns that our current case law will lead to “a proliferation
of warnings and disclosures compelled by local municipal
authorities” that have “only a tenuous link to a ‘more than
trivial’ government interest,” CTIA, 873 F.3d 774, 777 (9th
Cir. 2017) (Wardlaw, J., dissenting from denial of reh’g en
banc).
Because the majority reaches the right result under the
wrong legal standard, I respectfully concur only in the
judgment.