First Amendment Battle: 5 Questions With ANA EVP Gov. Relations Dan Jaffe

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San Francisco Sugar Warning Soda

The Association of National Advertisers (ANA) is supporting the American Beverage Association in a pivotal case about a San Francisco ordinance requiring a major health warning on ads for certain sugar sweetened beverages that would take up 20 percent of the ad space.

Ninth Circuit Court Judge Edward Chen recently issued a decision to deny preliminary injunctive relief. ANA believes this mandated disclosure violates the First Amendment and is supporting the American Beverage Association in its battle against the ordinance.

“In our brief, we argue that the ordinance could set a very dangerous precedent for other products and services that fall in disfavor with some government body,” reads the ANA blog. “The First Amendment protects marketers from these types of efforts by the government to require companies to vilify their own products. This case is very important for the entire marketing community.”

Similar efforts as in New York City’s attempt to ban “giant soda” failed judicial review. “If this Court were to uphold the Board of Supervisors’ conscription of sugar-sweetened beverage ads to convey government views on health issues there would be virtually no limit to similar efforts targeting other products, at any level of government,” said the ANA. “Advertisers would face that risk tens of thousands of times over, from any city, town, county, or other municipal authority with a particular health-related hobby horse.”

brandchannel spoke with Dan Jaffe, EVP Government Relations for ANA, about the ongoing issue.

bc: What’s at stake here for advertisers?

Dan Jaffe ANA Association of National Advertisers

Dan Jaffe: A lot is at stake. The whole issue of mandatory disclosure is becoming a key area at the state level. San Francisco’s ordinance, for example, would require major health warnings on ads for certain sugar-sweetened beverages that would take up 20 percent of the ad space.

That kind of disclosure is not appropriate. Any product or food or drink can contribute to obesity if taken in excess. The San Francisco law excludes all sorts of other products that may have just as much sugar but are not pre-sweetened.

Across the Bay in Berkeley, they’re asking for mandatory disclosures regarding cellphone radiation safety. The FCC says as of now there’s no data to suggest radiation from these phones is “harmful” but the City Council wants disclosures anyway.

If all 30,000 cities and counties in this country want to start putting mandatory disclosure on products it’s a very dangerous precedent—and a growing issue.

bc: Why is it a violation of the First Amendment and how is this different from what happened with cigarettes?

Jaffe: The government is allowed to have disclosure in advertising but it is limited in scope. With cigarettes, they tried to have mandatory disclosure like disturbing pictures but it was struck down. Cases have gone as far as Courts of Appeal, but people are concerned that SCOTUS is not fully manned—but it could happen.

bc: The truth is that sugary drinks are not good for us, so where does that leave ANA in consumer’s minds?

Jaffe: The government has every right to make its own statements, ads and educational materials but it can’t use private company space just to inform consumers of their views. There are lots of things people are concerned about but you can’t just grab other people’s property.

The First Amendment has tight restrictions regarding advertising. And those tight restrictions are often not met. The courts strike down government over-reach that is unconstitutional.

Advertising has had growing constitutional protection over the past 15 years and the Supreme Court says First Amendment restrictions are a last resort, not a first resort. If you don’t like something, there are lots of options such as taxes or restrictions on sales—but limiting speech is the last resort. The courts are very restrictive.

bc: You called the ordinance “regulatory nannyism.” Please elaborate.

Jaffe: It means trying to not allow people to advertise. If an ad is false or deceptive, there’s no Constitutional protection for it. A state legislature or other governmental body can strike it down and that’s the end of story—no debate. But for truthful, nondeceptive statements, when the courts say consumers can’t handle the truth, that’s “regulatory nannyism.” People may make decisions not in their best interest but that doesn’t mean the courts can step in and block the truth.

If I don’t like a product’s message but it’s truthful, the government should not be able to stop it. Speech will always be controversial and needs substantial protection.

bc: What do you see as the best possible outcome?

Jaffe: The best outcome would be the courts telling the San Francisco supervisors and Berkeley City Council they’ve made an over-reach and cannot go forward. Then strike these proposals down.


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