Sugar-Sweetened Beverage Warning Policies in the Broader Legal Context: Health and Safety Warning Laws and the First Amendment

Abstract

Health and safety warnings are a regular part of the consumer protection landscape. However, the only sugar-sweetened beverage policy passed to date was found unconstitutional under the First Amendment. This paper evaluates sugar-sweetened beverage warning policies in light of existing health and safety warnings on consumer products and the First Amendment. In 2019, using LexisNexis, existing federal, state, and local health and safety warning laws for consumer products were identified. Then, bills proposed and laws passed through July 2019 that required sugar-sweetened beverage warnings were examined. Finally, First Amendment case law related to warning and disclosure requirements was analyzed to identify outstanding questions about the constitutionality of sugar-sweetened beverage warning policies. Warnings on consumer products provide key examples of long-established health and safety warning language, rationales for passage, and formatting requirements. Between 2011 and 2019, a total of 9 jurisdictions proposed 28 bills (including 1 law by San Francisco) requiring sugar-sweetened beverage warnings on labels, advertisements, and at point of sale. This analysis highlighted outstanding First Amendment questions on permissible wording and formatting requirements and the need for evidence and rationales that focus on specific health harms of sugar-sweetened beverages. Warnings on labels and at point of sale may pose fewer First Amendment concerns than on advertisements. Sugar-sweetened beverage warning policies that mirror health and safety warnings long established as permissible on other consumer products should be considered constitutional; however, evolving First Amendment jurisprudence leaves outstanding questions, especially on the interpretation of controversy, formatting requirements, and levels of required specificity for warning language.