San Francisco Warning Gives Plain Packaging Advocates Pause in the U.S.

On Thursday, January 31st, the United States Court of Appeals for the Ninth Circuit, in a unanimous decision by an eleven-judge court, ordered a district judge to grant a preliminary injunction on a 2015 San Francisco ordinance which mandated health warnings on sugary beverages. The injunction, affirming a three-judge panel, blocked the implementation of the ordinance until another hearing renders a final decision on the ordinance’s constitutionality. The warning can be read below:

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.

Judge Graber delivered the opinion of the court, stating that that the plaintiffs have merit to argue the ordinance is an “unjustified or unduly burdensome disclosure requirement … [that] might offend the First Amendment by chilling protected commercial speech.” Additionally, the court found that the content of the warning (that sugar contributes to obesity, diabetes, and tooth decay) was not based on established fact, and, therefore, the government has no interest in compelling speech by a private entity.

The opinion of the court and the many concurrences of the several judges point to the likelihood that the final decision will rule the San Francisco ordinance unconstitutional.

A final ruling in favor of the plaintiffs will be a massive win for limited government and individual liberty, and could potentially foreshadow attempts to introduce plain packaging in the United States as dead on arrival. Appellate courts generally only issue injunctions when the plaintiffs are likely to succeed in their arguments. Therefore, this case is likely to be decided in favor of the rights of the plaintiffs to free speech.

There are other examples of American cities and states attempting to expand the plain packaging and health warning agenda to all sorts of unhealthy foods and beverages. Back in 2012, a U.S. federal court struck down an FDA warning label rule for tobacco companies, declaring it a violation of the First Amendment.

In the near future we will likely be seeing legislation designed to impose plain packaging on food and beverages, as is the case in Europe. This court ruling in San Francisco, and the likely subsequent overturning of the ordinance, we can be confidant that First Amendment protections ensure producers will be able to retain their right to use trademarks as a form of speech.

Australia implemented the first full restriction on advertisements and trademark usage on cigarette packs with plain packaging. Since then, other countries have adopted the measure and have started considering it for other products. The San Francisco case is an excellent example of how individual rights protect consumers, and trademark-intensive industries, from such government overreach. 

Trademarks allow consumers to make informed choices based on brand reputation and other known facts such as their threat to health. Unlike Australia, where tobacco usage immediately stopped declining and illicit tobacco usage increased by 14% after plain packaging was instituted, the smoking rate in the United States has continued to drop without the government undermining intellectual property rights through plain packaging.

Photo Source: 

License: Creative Commons 3 – CC BY-SA 3.0

Attribution: Alpha Stock Images –

Original Author: Nick Youngson –

Original Image: