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ANA: San Fran sugary label law is unconstitutional

Cans of soda are displayed in a case at Kwik Stops Liquor in San Diego, California February 13, 2014. Sodas and most other sugar-sweetened drinks sold in California would be required to carry warning labels for obesity, diabetes and tooth decay under a bill introduced in Sacramento on Thursday and backed by several public health advocacy groups. REUTERS/Sam Hodgson (UNITED STATES - Tags: POLITICS FOOD HEALTH)

The Association of National Advertisers (ANA) is taking San Francisco to task for requiring warning labels on outdoors ads for sugary beverages.  “Unhelpful and unconstitutional” says the industry group in a blog post.

The city’s Board of Supervisors earlier this month passed an ordinance that would require beverage companies to affix warning labels on billboards or other outdoor ads for certain beverages.   These include sodas, sports drinks, energy drinks, or other beverages that contain more than 25 calories from sweeteners per 12 ounces of beverage.

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.

“San Francisco has sent a clear message that we need to do more to protect our community’s health,” San Francisco supervisor Scott Wiener, who proposed the warning label, said in a statement when the ordinance passed. “These health warnings will help provide people information they need to make informed decisions about what beverages they consume. Requiring health warnings on soda ads also makes clear that these drinks aren’t harmless — indeed, quite the opposite — and that the puppies, unicorns, and rainbows depicted in soda ads aren’t reality.”

The ANA argues that the warning label runs afoul of a string of case law.

“The Supreme Court held in its Pacific Gas & Electric v. Public Utilities Commission decision dealing with mandated disclosures, that it is unconstitutional for the government to conscript private companies to promulgate the government’s desired messages with which it disagrees. The Court stated that companies can refuse to accept government messages with which they disapprove where deception or misleading speech is not involved.”

What’s worse, the ANA warns that the ordinance sets a dangerous precedent that would make national distribution of certain products all but untenable.

“There are 19,492 municipal level governments in the United States…Manufacturers would be confronted with a dizzying patchwork of regulations around the country – and consumers would be confronted with a confusing mélange of warnings on products someone, somewhere, thought the public needed to be warned about. This serves no one’s interest.”

The  board of supervisors also banned ads for sugary drinks on  bus stops and other publicly owned property and prohibited the use of city funds for buying Classic Cokes and Frappuccinos.

For those who don’t read Starbucks nutrition web pages, a standard 12-ounce Frappuccino, made with coffee, ice, milk and sugary flavored syrup, has more calories than a 140-calorie can of Coca-Cola.  San Fran has given certain coffee drinks a pass, but that exemption doesn’t apply to blender beverages like Frappuccinos, according to Jeff Cretan, legislative aide to the measure’s sponsor.