American Beverage Ass'n v. City & County of San Francisco

concurring in judgment:

I concur in the judgment of this case because I believe that the ordinance, in its current form, likely violates the First Amendment by mandating a warning requirement so large that it will probably chill protected commercial speech. See Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 , 105 S.Ct. 2265 , 85 L.Ed.2d 652 (1985) (“We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech.”). While I do not understand the majority’s opinion to state that no properly worded warning would pass constitutional muster, I agree that the City has not carried its burden in demonstrating that the twenty percent requirement at issue here would not deter certain entities from advertising in their medium of choice. Because this case can be disposed of on this question alone, I would reverse and remand without making the tenuous conclusion that the warning’s language is controversial and misleading.

APPENDIX A

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Concurrence by Judge D.W. NELSON

OPINION

American Beverage Association, California Retailers Association, and the California State Outdoor Advertising Association (we refer to these organizations and their members collectively as “the Associations”), filed suit against the City and County of San Francisco challenging a city ordinance that would require warnings about the health effects of certain sugar-sweetened beverages on specific types of fixed advertising within San Francisco. *888 The Associations argue that the ordinance violates their First Amendment right to freedom of speech. After the district court denied the Associations’ motion for a preliminary injunction, the Associations filed this interlocutory appeal. We conclude .that the Associations are likely to succeed on the merits of their claim that the ordinance is an “unjustified or unduly burdensome disclosure requirement!] [that] might offend the First Amendment by chilling protected commercial speech.” Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 651 , 105 S.Ct. 2265 , 85 L.Ed.2d 652 (1985). The remaining preliminary injunction factors also weigh in the Associations’ favor. We…