Federal court says soda warning labels are unconstitutional

In a victory for all Americans who believe they have a right to consumer information that is accurate and based on fact, a federal appeals court unanimously ruled last week to block a San Francisco ordinance that it said likely violates the First Amendment right to free speech.

The ordinance in question requires fixed advertising (billboards, bus stops, etc.) for sodas and other sugary non-alcoholic drinks to include a health warning that the court said are “deceptive.” The warning label is required to cover 20 percent of the ads and 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.”

The Ninth Circuit Court of Appeals ruled that the First Amendment rights of companies who make those drinks and want to advertise their products were likely violated by the ordinance because the label is misleading, inaccurate and controversial. The court wrote that it is unconstitutional for “the state to require corporations to provide one-sided or misleading messages” and the message “is deceptive in light of the current state of research.”

In the opinion, the court also pointed out that the Food and Drug Administration (FDA) concluded that added sugars are “generally recognized as safe” and “can be a part of a healthy dietary pattern when not consumed in excess amounts.”

A growing problem

Unfortunately, this is not an isolated case. In fact, it is another example of cities and states mandating or proposing to mandate that certain products carry warning labels that are not backed by science and that imply dire health effects will materialize by using a product.

Consider Hawaii where state lawmakers introduced a bill requiring permanent warning labels on cell phones to address unfounded concerns about radiation. The law was proposed even though the Federal Communications Commission says there is “no scientific evidence to date that proves that wireless phone usage can lead to cancer or a variety of other health effects, including headaches, dizziness, or memory loss.” Other agencies, including the FDA and National Cancer Institute came to similar conclusions.

Notice a pattern of lawmakers disregarding science?

Back in California, the state’s infamous Proposition 65 law, which requires warnings on anything that contains one of almost 900 substances, zeroed in on coffee and french fries. What triggered the warning labels for them? It’s a naturally occurring substance called “acrylamide,” which can cause cancer at extremely high doses. You would have to eat 182 pounds of french fries a day to even reach the level that could cause cancer. Does the label explain that fact? Nope.

When was the last time you ate 182 pounds of french fries in a day? Probably never since the US Department of Agriculture estimates that the per capita consumption of frozen fried potatoes is 50 pounds per year.

Among other controversial additions to the Prop 65 list of substances “known to the State to cause cancer” is glyphosate, which was added this year. Glyphosate is a chemical used in pesticides, and it was added solely on a conclusion reached by the International Agency for Research on Cancer—which has its own troubled history—that the chemical was “probably carcinogenic.”

The problem with that determination is that multiple other studies, international organizations and countries have found that the glyphosate is not a carcinogen. This is another case of science being brushed aside.

The solution

Mandated product warnings that aren’t based on science don’t benefit anyone. They’re misleading to consumers—and potentially counterproductive if consumers shy away from safe and healthy products. But it’s not just good policy based on science that we’re talking about here.

As this most recent case shows, the Constitution itself says that manufacturers shouldn’t be forced by the government to say things about their products that are flatly wrong and misleading to consumers. The bottom line is we deserve information about the products we buy that is accurate and based on fact.

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