September 21, 2017
The United States Court of Appeals for the Ninth Circuit has preliminarily enjoined San Francisco’s unprecedented ordinance requiring a large black-box health warning on ads for sugar-sweetened beverages, ruling that the ordinance likely violates the First Amendment. Latham & Watkins successfully represented the American Beverage Association in this appeal, with a team led by partners Richard Bress and Melissa Arbus Sherry, and associates Michael Bern and George Chipev, in Washington, D.C., and associate Marcy Priedeman in San Francisco. The Ninth Circuit’s ruling reverses the order of the United States District Court for the Northern District of California denying the motion for a preliminary injunction. The Ninth Circuit agreed with the American Beverage Association that the prescribed health warning was factually inaccurate and misleading, and that it would unduly burden and chill protected commercial speech, and held on those grounds that a preliminary injunction was warranted.
This case builds on Latham’s successful challenge (also on behalf of the American Beverage Association) to New York City’s ban on large, sugar-sweetened soft drinks, in which the firm obtained a ruling from New York’s high court that the so-called “Big Gulp Ban” violated the state’s constitutional separation of powers.