Newswise — In 2015, San Francisco passed the country’s first and only law requiring a warning label on advertisements for soda and other sugary drinks. 

But last year, the U.S. Court of Appeals for the 9th Circuit ruled that the law was unconstitutional and infringed on soda companies’ right to commercial speech under the First Amendment.

“Over the last decade or so, courts seem to be providing increased protection to the speech by companies, all at the expense of public health,” says Jennifer Pomeranz, assistant professor of public health policy and management at the NYU School of Global Public Health.

The question, of course, is: why? Health and safety warnings are regularly used to inform and protect consumers on, for example, alcoholic beverage containers that caution against drinking and driving and remind of the risks to pregnant women, as well as on tobacco packaging and advertisements. These labels have been around for decades, with the Federal Cigarette Labeling and Advertising Act of 1965 prompting the first generation of tobacco labels and alcohol warnings starting in 1989. Research shows that cigarette labels alerting people to the consequences of smoking—especially graphic ones like the FDA’s new warnings, which illustrate stunted fetal growth, neck cancer, and bloody urine, among others—can deter people from buying them. 

With the consumption of soda and other sugar-sweetened beverages linked to a host of chronic diseases, these products seem to be a prime candidate for consumer health warnings. Making matters worse, liquids can be gulped quickly without the same fullness cues that come with eating solid food—so it’s no surprise that sweet beverages are the leading source of added sugar in modern U.S. diets. But with San Francisco’s soda warning struck down, it’s unclear whether other cities and states—which have proposed a total of 26 bills similar to San Francisco’s—will move forward with their own efforts to add warnings to sugary beverage packaging, bottles, advertisements, or at point of sale.

The proposed warnings, existing labels on consumer goods, and the courts’ interpretation of the First Amendment are the focus of a new analysis in the American Journal of Preventive Medicine by Pomeranz and colleagues at Tufts University.

“Warnings on sugar-sweetened beverages that mirror health and safety warnings long established as permissible on other consumer products should be considered constitutional,” Pomeranz writes. “However, evolving First Amendment jurisprudence leaves outstanding questions, especially on the interpretation of controversy, formatting requirements, and levels of required specificity for warning language.” 

NYU News spoke with Pomeranz about the case for soda warning labels and how they compare to other disclosures. 

What’s the rationale for having warning labels on soda? Don’t people know that soda isn’t good for them?

Like for cigarettes, people generally do know that soda and other sugary drinks are not healthy for them. However, most people do not know the full range of health risks from consuming even one sugary beverage a day. These include tooth decay, weight gain, obesity, type 2 diabetes, fatty liver disease, and heart disease.  In addition to providing this valuable information, warning labels may influence parents’ decisions whether to serve them to their children. 

Globally, warning labels on soda and other sugary beverages are working. A recent study found that purchases of these drinks dropped by roughly 24 percent after Chile implemented new regulations, including prominent warning labels on the front of products and restrictions on advertising. Mexico will also be implementing front-of-package labeling this year. 

You write about a 2018 Supreme Court case on abortion rights. What does that decision have to do with soda warnings?

They’re both concerned with disclosure requirements aimed at protecting health and safety. In 2018, the Supreme Court decided NIFLA v. Becerra, striking down a California disclosure requirement for health clinics serving pregnant women as violating the First Amendment. Although this case left many uncertainties, the court stated that they “do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.” So, this case and subsequent court opinions raise questions about which types of health and safety warnings remain permissible.

Part of the NIFLA v. Becerra case came down to the Supreme Court’s findings that an otherwise factual disclosure requirement was “controversial” because it required health clinics that oppose abortion to disclose the availability of government services, including abortion. We don’t know yet whether this finding of “controversy” will be confined to abortion-related cases or have broader ramifications for other disclosure requirements.

The science on the consequences of consuming sugary beverages has gotten clearer in recent years. Shouldn’t this help the case for warning labels?

Yes, it should. However, some of the cases we analyzed led to uncertainties about whether sugary beverage warnings will survive judicial scrutiny—whatever the language or formatting requirements—without broader acceptance of the health harms associated with sugary beverage consumption or a shift in consideration about protections afforded to commercial speech. 

Nonetheless, long-established warnings give us guidance on how to craft sugary beverage warnings. If the courts are going to say warnings long considered permissible will be upheld, it can't just be on products that have been around forever. We also need to address products for which the science has evolved, such as sugary beverages, and for new products that didn’t even exist two decades ago, such a e-cigarettes.  

If a city or state wanted to introduce a soda warning label, what would you recommend to increase the chances that it gets passed?

It is critical that the warnings are factually accurate, so the rationale and the warning language itself must reflect scientific evidence about unique health harms of sugar-sweetened beverages. 

For instance, San Francisco’s focus on added sugar likely hurt its case. Moreover, including terms like “overconsumption” in the warning language would not be scientifically accurate because health risks come with even one sugary beverage a day, and the word “overconsumption” has no clearly defined meaning. In contrast, focusing on specific, evidence-based health harms of sugary beverages, like an increased risk for type 2 diabetes and tooth decay, is more likely to pass muster. 

Another recommendation would be to focus on getting warnings on drink labels and point-of-sale signs, rather than billboards and other large ads. The government more customarily requires warnings on product labels than advertisements—for example, to require ingredient lists and nutrition facts. There may also be less of a First Amendment concern requiring warnings on labels than on advertisements, which have the sole purpose to advertise the product.

Is this bigger than just soda?

In the 1970s, the Supreme Court’s original rationale to protect commercial speech was to help consumers. Over the decades, however, the Court has provided increased protections to all forms of speech by companies. Thus, no matter what people think about warnings on tobacco, alcohol, or sugary beverages, there are broader public health and safety concerns at stake as courts increasing provide more protection to corporate speech and less leeway to public health authorities.

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