This week the federal Ninth Circuit Court of Appeals held unconstitutional the size requirement in San Francisco’s soda warning labeling regulation. However, there are broader problems with the law that the Ninth Circuit failed to identify.
In 2017, the Ninth Circuit held in CTIA v. Berkeley that the city of Berkeley, California could compel sellers of cellphones to include language implying that their phones are potentially dangerous, which the seller did not want to do, especially since the Federal Communications Commission had already ruled the phones were not dangerous. In that case, the Competitive Enterprise Institute filed an amicus brief with the Supreme Court asking the court to hear the case. Thankfully, the court agreed to grant the petition we requested, vacated the Ninth Circuit CTIA decision, and asked the Ninth Circuit to reconsider in light of the free speech precedent in National Institute of Family and Life Advocates v. Becerra.
Significantly, when the court intervenes in this way, it is because the justices believe there is a “reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration.” And yet today, the Ninth Circuit now decides that its decision in CTIA was exactly correct with no premise that needs to be rejected. The Supreme Court clearly rejected the argument in Becerra that it was okay to limit the speech requirement for only certain speakers—the notion that “the State has left unburdened those speakers whose messages are in accord with its own views,” and that the speech requirement to professionals required strict scrutiny.
In today’s ruling, though, the Ninth Circuit acts like it doesn’t matter that this restriction applied to only sugary drinks rather than all products with sugars and does not apply strict scrutiny at all. Almost all products contain some sugars, and yet San Francisco decided to only target some of those products to imply they are unusually harmful without cause. These kinds of controversial content-based mandatory speech compelling requirements should only be issued if they satisfy strict scrutiny, which this does not.
While this case is a sweet victory for the First Amendment, there are more problems with these kinds of regulations than just that which was identified by the Ninth Circuit leaving a sour aftertaste.