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Am. Bev. Ass'n v. City & Cty. of San Francisco

United States Court of Appeals for the Ninth Circuit

September 25, 2018, Argued and Submitted En Banc, Pasadena, California; January 31, 2019, Filed

No. 16-16072, No. 16-16073

Opinion

 [*753]  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, 201 L. Ed. 2d 835 (2018), we conclude 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, 105 S. Ct. 2265, 85 L. Ed. 2d 652, 17 Ohio B. 315 (1985). The remaining preliminary injunction factors also [**7]  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.

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916 F.3d 749 *; 2019 U.S. App. LEXIS 3175 **

AMERICAN BEVERAGE ASSOCIATION; CALIFORNIA RETAILERS ASSOCIATION, Plaintiffs-Appellants, and CALIFORNIA STATE OUTDOOR ADVERTISING ASSOCIATION, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellee.

Prior History:  [**1] Appeals from the United States District Court for the Northern District of California. D.C. No. 3:15-cv-03415-EMC. Edward M. Chen, District Judge, Presiding.

Am. Bev. Ass'n v. City & County of San Francisco, 187 F. Supp. 3d 1123, 2016 U.S. Dist. LEXIS 65013 (N.D. Cal., May 17, 2016)

Disposition: REVERSED and REMANDED.

CORE TERMS

warning, advertisements, notice, diabetes, message, Ordinance, beverages, burdensome, regulation, unduly, licensed, disclosure, sugar-sweetened, unlicensed, uncontroversial, clinics, heightened scrutiny, commercial speech, unjustified, consumer, disclosure requirements, preliminary injunction, requirement of notice, health and safety, content-based, quotation, marks, intermediate scrutiny, misleading, products

Governments, Local Governments, Ordinances & Regulations, Civil Procedure, Appeals, Standards of Review, Abuse of Discretion, Remedies, Injunctions, Preliminary & Temporary Injunctions, Clearly Erroneous Review, De Novo Review, Questions of Fact & Law, Evidence, Burdens of Proof, Allocation, Grounds for Injunctions, Constitutional Law, Freedom of Speech, Commercial Speech, Advertising, Fundamental Freedoms, Scope, Grounds for Injunctions, Irreparable Harm, Balance of Hardships, Public Interest