En banc court again strikes down sugar-sweetened beverages warning, with divided and divisive reasoning

American Beverage Ass’ v. City & County of San Francisco, No. 16-16072 (9th Cir. Jan. 31, 2019)After the panel opinion striking down SF’s sugar-sweetened beverages (SSB) disclosure was reheard by the en banc court in light of National Institute of Family & Life Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018), the en banc court again struck it down, though not with enough force for a vigorous special concurrence in the judgment.  To the majority, the disclosure was an “unjustified or unduly burdensome disclosure requirement[] [that] might offend the First Amendment by chilling protected commercial speech” under Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985). The ordinance required certain SSB ads within the city to state: “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.” Traditional media ads and…

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