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9th Circuit Court Blocks San Francisco Warning On Soda Ads

applecorped

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applecorped
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Mar 8, 2008
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applecorped said:
https://sanfrancisco.cbslocal.com/2019/01/31/sf-soda-ad-warning-labels-blocked-9th-circuit-court/


A federal appeals court on Thursday blocked a San Francisco law requiring health warnings on advertisements for soda and other sugary drinks in a victory for beverage and retail groups that sued to block the ordinance.

The law violates constitutionally protected commercial speech, the 9th U.S. Circuit Court of Appeals said in a unanimous ruling.
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not sure I understand. wouldn't this apply to things like cigarettes also?
 
I'm sure it's fine. The well funded US public education system makes such warnings unnecessary surely?
 
As far as I can see the ruling is based on legality, not morality, and relates to what's written in your First Amendment.

As an aside, I've seen no evidence that textual warnings make any difference to sugary drink consumption. Indeed, the studies show this. Graphics warnings make a slight difference but I'm pretty sure that a graphic warning can't be legally enforced on an ad over a textual one.
 
Large sodas ban - denied, warnings on labels - denied, straws banned - success!!

One out of three ain't bad I guess
 
baron said:
As far as I can see the ruling is based on legality, not morality, and relates to what's written in your First Amendment.

As an aside, I've seen no evidence that textual warnings make any difference to sugary drink consumption.
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On the other hand, adding a warning doesn't infringe on your ability to put anything else on there.
 
Whip said:
not sure I understand. wouldn't this apply to things like cigarettes also?
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No, it wouldn't.

The way rights work in the US is essentially that the are upheld, except in specific cases where an exception is made. A case for making an exception must be made in court, and must convince a jury/judge that the exception is warranted in a specific case.

The ruling that cigarette warnings are an exception does not create a blanket exception for all such warnings on any other products. Similarly, the ruling that no exception is justified in the specific case of soda warnings, in no way invalidates the court-recognized exception in the specific case of cigarette warnings.

It helps if you recognize that
a) individual rights are important to uphold as a basic principle of healthy society;
b) making exceptions to that principle are necessary from time to time
c) having a defined process and threshold for making such exceptions is also very important

Once you recognize those basic points, you can start thinking about what rights you wish to uphold, under what circumstances you'd want to make exceptions, and what kind of process you'd want for making those exceptions.

Then you can compare the product of your thinking on the subject to how your society actually applies these ideas in practice. You can look at the specific exceptions contemplated for cigarettes and soda, and reason for yourself about whether they make sense, and whether they're consistent with your own ideals about how such exceptions should be made.
 
Belz... said:
On the other hand, adding a warning doesn't infringe on your ability to put anything else on there.
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It does, actually. There's a finite amount of space on the packaging. Every message you put on there necessarily incurs an opportunity cost of all the other messages you could put in that space.

And of course it infringes on your right to put no message there at all, if you want.

And of course it infringes on your right to choose for yourself what messages to put there.

And of course it infringes on your right to not put messages detrimental to your brand on there.
 
theprestige said:
It does, actually. There's a finite amount of space on the packaging. Every message you put on there necessarily incurs an opportunity cost of all the other messages you could put in that space.

And of course it infringes on your right to put no message there at all, if you want.

And of course it infringes on your right to choose for yourself what messages to put there.

And of course it infringes on your right to not put messages detrimental to your brand on there.
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Well aside from the fact that some infringements of rights are necessary or desirable, none of that actually counters what I said: it doesn't stop them from putting anything else in there.
 
The judges granted a preliminary injunction that prevents the ordinance from taking effect and kicked the case back to a lower court.
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So, I guess this is just temporary ?

The judges agreed that beverage companies were likely to suffer irreparable harm if the law went into effect because the warnings would drown out the ads’ other visual elements.
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Did the law require the warning to be greater than 50% of the ad space?

Any rate, it was a unanimous decision by the most overturned federal appeals court* which is generally regarded as "liberal". Which all makes me think there is something about this decision that I don't quite understand.


*probably because they hear the most cases rather than them being particularly out of sync with the SCOTUS, which is actually a good argument for adding another appeals courts and splitting up the jurisdiction of the 9th.
 
Belz... said:
Well aside from the fact that some infringements of rights are necessary or desirable,
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Yes, please. Let's leave that aside, since we're not actually talking about that at all right now anyway.

none of that actually counters what I said: it doesn't stop them from putting anything else in there.
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Actually it does: Putting in one message incurs an opportunity cost. It literally does stop them from putting any other message in there. Just like this post comes at the cost of everything else I could have done with this time and this "Submit Reply".

If you had made me write and submit this post, it would absolutely have stopped me from doing literally anything else with that time and effort. You can't just handwave opportunity costs as if they're not real.
 
As long as it is on sodas and not... like everything else it's not about "informing the citizens" or any other such garbage.
 
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theprestige said:
Yes, please. Let's leave that aside, since we're not actually talking about that at all right now anyway.
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Irony.

Actually it does: Putting in one message incurs an opportunity cost. It literally does stop them from putting any other message in there.
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No, it doesn't. It eats up some space, but not all of it. Does it have a cost? Yes. It does not PREVENT them from putting something else on the packaging.
 
Belz... said:
Irony.



No, it doesn't. It eats up some space, but not all of it. Does it have a cost? Yes. It does not PREVENT them from putting something else on the packaging.
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Sure it does. If they have more messaging than space, then every message they do put on crowds out another message they could have put on. Every message they are forced to put on, crowds out a message they could have chosen to put on.

Again, the space on the package is finite. There always comes a point where they are prevented from putting more messages on the package because there's no more space. When they are forced to give up some space to a message not of their choosing, that point comes sooner.

Sleeping in doesn't prevent you from getting out of bed at a later time. But it does prevent you from getting up at an earlier time.

Being imprisoned for a year doesn't prevent you from doing something entirely different the next year. But it does prevent you from doing anything else during that year.

Making this post this time doesn't prevent me from making a different post some other time. But it does prevent me from making a different post this time.

Using this space on my packaging for your message doesn't stop me from using some other space on the packaging for my message. But it does stop me from using this space for my message.
 
theprestige said:
Sure it does. If they have more messaging than space, then every message they do put on crowds out another message they could have put on.
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I'm not saying that you're not technically right (the best kind of right!). I'm saying that the whole space isn't taken up by the warning. They've got plenty of space to put other stuff there. Sure, they have less space than without the warning, but they can still put stuff there. You seem to be arguing against a point I didn't make.
 
You can't save fools from folly even if you spell out the obvious in every possible situation. 'Nobody told me I shouldn't eat the bathroom tiles!' cannot be fixed. Even the kindest shepherd recognizes that some sheep are just going to get picked off by the wolves.
 
TragicMonkey said:
You can't save fools from folly even if you spell out the obvious in every possible situation. 'Nobody told me I shouldn't eat the bathroom tiles!' cannot be fixed. Even the kindest shepherd recognizes that some sheep are just going to get picked off by the wolves.
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That's why, for me at least, calorie content, nutritional breakdown, and ingredients make sense.

"Warnings" do not.
 
Belz... said:
I'm not saying that you're not technically right (the best kind of right!). I'm saying that the whole space isn't taken up by the warning. They've got plenty of space to put other stuff there. Sure, they have less space than without the warning, but they can still put stuff there. You seem to be arguing against a point I didn't make.
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I'm arguing that the point you made disingenuously excuses the intrusion of a message they didn't choose but are forced to give space to anyway.
 
Maybe the packaging for all sugary drinks should be in the form of a diabetic foot, three-toed and mottled with gangrene (the big toe doubling as the bottle's neck). That would sort the problem overnight.
 
theprestige said:
I'm arguing that the point you made disingenuously excuses the intrusion of a message they didn't choose but are forced to give space to anyway.
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Oh, so now I'm dishonest, presumably because my point disagrees with you.

No, the point I've made was simply not the one you responded to.

How do you feel about nutritional content labels?
 
Are there mandatory warning labels on fireworks? Other non-foodstuff dangerous things?

Ohhhh, I'll bet there are, cos the causation is much more easily established, therefore: Litigation!

I may lose that bet, though.
 
Belz... said:
Oh, so now I'm dishonest, presumably because my point disagrees with you.
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Wrongly excuses, perhaps. I don't know if you're actually being dishonest, but I do think you're being wrong in your excuse.

No, the point I've made was simply not the one you responded to.
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Fair enough. Let's start over.

How do you feel about nutritional content labels?
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Mandatory or optional?
 
theprestige said:
Wrongly excuses, perhaps. I don't know if you're actually being dishonest, but I do think you're being wrong in your excuse.
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What excuse? I meant precisely what I said, and not something else. They're not prevented from putting other stuff on the packaging. That some of the space is taken up, and that they have thus less space, is a different matter.

Mandatory or optional?
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Sorry, mandatory ones.
 
ahhell said:
So, I guess this is just temporary ?

Did the law require the warning to be greater than 50% of the ad space?
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The requirement was 20%.

Any rate, it was a unanimous decision by the most overturned federal appeals court* which is generally regarded as "liberal". Which all makes me think there is something about this decision that I don't quite understand.
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Yes why would an ultra-liberal court strike down an ultra-liberal nanny state law? Maybe because the science is on the other side?

The court also found San Francisco’s warning that drinking sweet drinks can lead to obesity and other diseases wasn’t based on established fact. The ruling cited Food and Drug Administration statements that sugar is “generally recognized as safe” when not consumed to excess.
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Belz... said:
Sorry, mandatory ones.
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- They impose an opportunity cost against the publisher's will.
- They are an infringement on the publisher's freedom of speech.
- The imposition and infringement are not mitigated in any way by the publisher's ability to pubish other things in other places.
- Because the freedom of speech is a constitutionally-recognized right, the infringement should be subjected to strict scrutiny by the courts, before it is allowed (I don't know if the strict scrutiny standard is actually applied, but I think it should be).
 
theprestige said:
- They impose an opportunity cost against the publisher's will.
- They are an infringement on the publisher's freedom of speech.
- The imposition and infringement are not mitigated in any way by the publisher's ability to pubish other things in other places.
- Because the freedom of speech is a constitutionally-recognized right, the infringement should be subjected to strict scrutiny by the courts, before it is allowed (I don't know if the strict scrutiny standard is actually applied, but I think it should be).
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Ok so I guess you are against them?

How do you propose to protect consumers and inform them on the content of the food products they buy (assuming this is something you want to see happen) in the absence of such regulation? An independent body? That would require quite the workforce. Who would pay for that?
 
Belz... said:
Ok so I guess you are against them?
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You guess wrong. Or at least you guess prematurely.

Please consider the possibility that I can recognize an infringement, and also recognize that the infringement is justified.

How do you propose to protect consumers and inform them on the content of the food products they buy (assuming this is something you want to see happen) in the absence of such regulation? An independent body? That would require quite the workforce. Who would pay for that?
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Let's slow down a bit. Do you agree with the four points I raised in my previous post? If you do, then we can move on discuss the problem of nutritional content and the merit of mandatory nutritional content labels as a solution to that problem.

But if you don't agree with my four points, then we should probably recognize and address the disagreement first. Otherwise, I fear it will introduce misunderstandings and unnecessary discord into any further discussion on the topic.
 
theprestige said:
You guess wrong. Or at least you guess prematurely.
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Boo!

Please consider the possibility that I can recognize an infringement, and also recognize that the infringement is justified.
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Hey, hey! I have it on good authority that we shouldn't discuss whether such a thing is possible. ;)

I assumed you understood why I asked the question, so you could've included your opinion as to whether they are justified. So?

Let's slow down a bit. Do you agree with the four points I raised in my previous post?
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I agree with the first point, kinda disagree on the second, and of course that affects my ability to agree on points 3 and 4.

Regardless, I'd like to know if you think those labels are justified and, if not, what you would do instead, assuming you care about informing the public about these things. I don't think that's putting the cart before the horse.
 
Since people are cherry picking the article, here's mine:
The judges granted a preliminary injunction and kicked the case back to a lower court. The court also found that the warning which would cover 20 percent of the ad space was too large, and suggested 10 percent might be legal.

“This decision is solely about the size of the warning label,” said John Cote, communications director for the city attorney. “We’re evaluating our next steps in light of this decision.”
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The bolded in the OP is not a quote from the article which explains why it makes no sense in light of other product warnings.
 
Belz... said:
Boo!
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Hm.

Hey, hey! I have it on good authority that we shouldn't discuss whether such a thing is possible. ; )
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Wrong. I prefer to cover one topic at a time, and get closure on one point before moving on to another. If we're discussing whether infringement occurs, we should resolve that question before moving on to whether infringement is justified.

I'm perfectly happy to discuss whether such a thing is possible, but only in a context where we've resolved the dependent question to our mutual satisfaction. Otherwise it's just changing horses and increasing confusion instead of reducing it.

I assumed you understood why I asked the question, so you could've included your opinion as to whether they are justified. So?
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History shows that this is a recipe for disaster. Let's stick to getting closure on each point in turn.

I agree with the first point, kinda disagree on the second, and of course that affects my ability to agree on points 3 and 4.

Regardless, I'd like to know if you think those labels are justified and, if not, what you would do instead, assuming you care about informing the public about these things. I don't think that's putting the cart before the horse.
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You don't agree that being coerced by the state to engage in speech not of my own choosing is an infringement on my freedom of speech?

If we don't agree on that, and you're not interested in discussing that disagreement, then this is pretty much a full stop on this conversation, for me.
 
Belz... said:
Ok so I guess you are against them?

How do you propose to protect consumers and inform them on the content of the food products they buy (assuming this is something you want to see happen) in the absence of such regulation? An independent body? That would require quite the workforce. Who would pay for that?
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I understand warnings for some products.
But, frankly, I think that drinking a lot of Soda is not good for you is common enough knowledge that a warning is pretty redundant.
Are you going to put the same warning on Candy?
It's the kind of thing that people know it's unhealthy but they do it anyway because of the pleasure involved.
My problem with the SF law is that it treats the public like a bunch of morons. I know at times I think that,but still, it seems a warning on Soda is pretty redudent and a waste of money.
 
And I get a feeling some people just love expansion of government power at the expense of private industry,regardless of circumstance. They pretty much want the government to run everything any way.
 
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