FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN BEVERAGE

ASSOCIATION; CALIFORNIA

RETAILERS ASSOCIATION,

Plaintiffs-Appellants,

and

CALIFORNIA STATE OUTDOOR

ADVERTISING ASSOCIATION,

Plaintiff,

v.

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant-Appellee.

No. 16-16072

D.C. No.

3:15-cv-03415-EMC
2 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

AMERICAN BEVERAGE

ASSOCIATION; CALIFORNIA

RETAILERS ASSOCIATION,

Plaintiffs,

and

CALIFORNIA STATE OUTDOOR

ADVERTISING ASSOCIATION,

Plaintiff-Appellant,

v.

CITY AND COUNTY OF SAN

FRANCISCO,

Defendant-Appellee.

No. 16-16073

D.C. No.

3:15-cv-03415-EMC

OPINION

Appeals from the United States District Court

for the Northern District of California

Edward M. Chen, District Judge, Presiding

Argued and Submitted En Banc September 25, 2018

Pasadena, California

Filed January 31, 2019

Before: Sidney R. Thomas, Chief Judge, and Dorothy W.

Nelson, Susan P. Graber, William A. Fletcher, Marsha S.

Berzon, Sandra S. Ikuta, Mary H. Murguia, Morgan 

Christen, Jacqueline H. Nguyen, Andrew D. Hurwitz,

and John B. Owens, Circuit Judges.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 3

Opinion by Judge Graber;

Concurrence by Judge Ikuta;

Concurrence by Judge Christen;

Concurrence by Judge Nguyen

SUMMARY*

Civil Rights

The en banc court reversed the district court’s denial of a

preliminaryinjunction and remanded in an action challenging

the City and County of San Francisco’s Sugar-Sweetened

Beverage Warning Ordinance, which requires health

warnings on advertisements for certain sugar-sweetened

beverages.

Plaintiffs, the American Beverage Association,California

Retailers Association, and California State Outdoor

Advertising Association, argued that the Ordinance violated

their First Amendment right to freedom of speech. The en

banc court, relying on National Institute of Family & Life

Advocates v. Becerra (NIFLA), 138 S. Ct. 2361 (2018),

concluded that Plaintiffs will likely 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, 471 U.S. 626,

651 (1985). The en banc court determined that the remaining

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
4 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

preliminary injunction factors also weighed in Plaintiffs’

favor.

Concurring, Judge Ikuta stated that because the

Associations had shown a likelihood of prevailing on the

merits and because the other factors for granting a

preliminary injunction weighed in the Associations’ favor,

she agreed with the majority’s conclusion that the district

court abused its discretion by denying the Associations’

motion for a preliminary injunction. But Judge Ikuta stated

that because the majority failed to apply NIFLA’s framework

for analyzing when government-compelled speech violates

the First Amendment, she dissented from the majority’s

reasoning. 

Concurring in part and concurring in the judgment, Judge

Christen, joined by Chief Judge Thomas, agreed with the

majority that Zauderer’s framework applied to the

government-compelled speech at issue in this case. Judge

Christen also agreed that the district court’s decision must be

reversed, but she would not reach the issue the majority relied

upon. Judge Christen would reverse because the City and

County of San Francisco could not show that the speech it

sought to compel was purely factual.

Concurring in the judgment, Judge Nguyen disagreed

with the majority’s expansion of Zauderer’s rational basis

review to commercial speech that is not false, deceptive, or

misleading. Judge Nguyen stated that because the majority

reached the right result under the wrong legal standard, she

respectfully concurred only in the judgment.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 5

COUNSEL

Richard P. Bress (argued), George C. Chipev, Michael E.

Bern, and Melissa Arbus Sherry, Latham & Watkins LLP,

Washington, D.C.; Marcy C. Priedman, Latham & Watkins

LLP, San Francisco, California; for Plaintiffs-Appellants.

Jeremy Michael Goldman (argued) and Wayne Snodgrass,

Deputy City Attorneys; Dennis J. Herrera, City Attorney;

Office of the City Attorney, San Francisco, California; for

Defendant-Appellee.

Wencong Fa and Meriem L. Hubbard, Pacific Legal

Foundation, Sacramento, California, for Amicus Curiae

Pacific Legal Foundation.

Robert Corn-Revere, Ronald G. London, Davis Wright

Tremaine LLP, Washington, D.C., for Amicus Curiae The

Association of National Advertisers, Inc.

Warren Postman and Katheryn Comerford Todd, Litigation

Center Inc., Washington, D.C.; Jeremy J. Broggi, Megan L.

Brown, and Bert W. Rein, Wiley Rein LLP, Washington,

D.C., for Amicus Curiae Chamber of Commerce of the

United States of America.

Mark S. Chenoweth, CoryL. Andrews, and Richard A. Samp,

Washington Legal Foundation, Washington, D.C., for

Amicus Curiae Washington Legal Foundation.

Allison M. Zieve, Julie A. Murray, and Scott L. Nelson,

Public Citizen Litigation Group, Washington, D.C., for

Amicus Curiae Public Citizens, Inc.
6 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

Sophia TonNu, Thomas Bennigson, and Seth E. Mermin,

Public Good Law Center, Berkeley, California; Sabrina

Adler, Ian McLaughlin, and Benjamin D. Wing, Changelab

Solutions, Oakland, California, for Amici Curiae American

Heart Association, American Academy of Pediatrics,

California, California Academy of Family Physicians,

California Chapter of the American Association of Clinical

Endocrinologists, California Endowment, California Medical

Association, California Pan-Ethnic Health Network,

Changelab Solutions, Community Health Partnership,

Crossfit Foundation, Diabetes Coalition of California,

Healthy Food America, Latino Coalition for a Healthy

California, National Association of Chronic Disease

Directors, National Association of Local Boards of Health,

Network of Ethnic Physician Organizations, Nicos Chinese

Health Coalition, Prevention Institute, Public Health Institute,

Public Health Law Center, San Francisco Bay Area

Physicians for Social Responsibility, San Francisco

Community Clinic Consortium, San Francisco Medical

Society, Southern California Public Health Association, and

Strategic Alliance.

Rachel Bloomekatz, Gupta Wessler PLLC, Washington,

D.C., for Amici Curiae American Cancer Society Cancer

Action Network, Public Health Law Center, Action on

Smoking & Health, African American Tobacco Control

Leadership Council, American Lung Association, American

Thoracic Society, Americas for Nonsmokers’ Rights,

Campaign for Tobacco-Free Kids, NAATPN, and Truth

Initiative Foundation.

Maia C. Kats, Center for Science in the Public Interest,

Washington, D.C., for Amicus Curiae Center for Science in

the Public Interest.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 7

Peter C. Tolsdorf and Linda E. Kelly, Manufacturers’ Center

for Legal Action, Washington, D.C.; J. Michael Connolly,

Thomas R. McCarthy, and William S. Consovoy, Consovoy

McCarthy Park PLLC, Arlington, Virginia; for Amicus

Curiae National Association for Manufacturers.

Deborah R. White, Retail Litigation Center Inc., Arlington,

Virginia; Gabriel K. Gillett, Jenner & Block LLP, Chicago,

Illinois; Adam G. Unikowsky, Jenner & Block LLP,

Washington, D.C., for Amicus Curiae Retail Litigation

Center.

Catherine E. Stetson, Hogan Lovells US LLP, Washington,

D.C., for Amicus Curiae GroceryManufacturers Association.

OPINION

GRABER, Circuit Judge:

Plaintiffs American Beverage Association, California

Retailers Association, and California State Outdoor

Advertising Association challenge Defendant City and

County of San Francisco’s Sugar-Sweetened Beverage

Warning Ordinance, City & Cty. of S.F., Cal., Bd. of

Supervisors Ordinance No. 100-15, § 1 (June 16, 2015). The

Ordinance requires health warnings on advertisements for

certain sugar-sweetened beverages (“SSBs”). Plaintiffs argue

that the Ordinance violates their First Amendment right to

freedom of speech. Relying on the United States Supreme

Court’s decision in National Institute of Family & Life

Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361 (2018), we

conclude that Plaintiffs will likely succeed on the merits of

their claim that the Ordinance is an “unjustified or unduly
8 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

burdensome disclosure requirement[] [that] might offend the

First Amendment by chilling protected commercial speech.” 

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626,

651 (1985). The remaining preliminary injunction factors

also weigh in Plaintiffs’ favor. We therefore hold that the

district court abused its discretion by denying Plaintiffs’

motion for a preliminary injunction, and we reverse and

remand.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2015, Defendant enacted the Ordinance, which

requiresthat certain SSBadvertisements (“SSB Ads”) include

the following statement:

WARNING: Drinking beverages with added

sugar(s) contributes to obesity, diabetes, and

tooth decay. This is a message from the City

and County of San Francisco.

City & Cty. of S.F., Cal., Health Code art. 42, div. I,

§ 4203(a) (2015). An “SSB Ad” covers

any advertisement, including, without

limitation, any logo, that identifies, promotes,

or markets a Sugar-Sweetened Beverage for

sale or use that is any of the following: (a) on

paper, poster, or a billboard; (b) in or on a

stadium, arena, transit shelter, or any other

structure; (c) in or on a bus, car, train,

pedicab, or any other vehicle; or (d) on a wall,

or any other surface or material.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 9

Id. § 4202. Under section 4202, though, an “SSB Ad” does

not include advertising in or on: periodicals; television;

electronic media; SSB containers or packaging; menus; shelf

tags; vehicles used by those in the business of manufacturing,

selling, or distributing SSBs; or logos that occupy an area of

less than 36 square inches. Id. The Ordinance defines “SSB”

as “anyNonalcoholic Beverage sold for human consumption,

including, without limitation, beverages produced from

Concentrate, that has one or more added Caloric Sweeteners

and contains more than 25 calories per 12 ounces of

beverage.” Id. But “SSB” does not include drinks such as

milk, plant-based milk alternatives, natural fruit and

vegetable juices, infant formulas, and supplements. Id. The

Ordinance provides detailed instructions regarding the form,

content, and placement of the warning on SSB Ads, including

a requirement that the warning occupy at least 20% of the

advertisement and be set off with a rectangular border. Id.

§ 4203(b).

Defendant’s stated purpose in requiring the warning is,

among other reasons, to “inform the public of the presence of

added sugars and thus promote informed consumer choice

that may result in reduced caloric intake and improved diet

and health, thereby reducing illnesses to which SSBs

contribute and associated economic burdens.” Id. § 4201. 

Failure to comply with the warning requirement can result in

administrative penalties imposed bySan Francisco’s Director

of Health. Id. § 4204(a).

Plaintiffs sued to prevent implementation of the

Ordinance. The district court denied Plaintiffs’ motion for a

preliminary injunction. Concluding that Plaintiffs likely

would not succeed on the merits of their First Amendment

challenge, the district court held that the warning is not
10 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

misleading, does not place an undue burden on Plaintiffs’

commercial speech, and is rationally related to a substantial

governmental interest. But the court stayed implementation

of the Ordinance pending this timely interlocutory appeal.

A three-judge panel of this court reversed the district

court’s denial of a preliminary injunction, Am. Beverage

Ass’n v. City & County of San Francisco, 871 F.3d 884 (9th

Cir. 2017). We then ordered that the case be reheard en banc,

880 F.3d 1019 (9th Cir. 2018).

JURISDICTION AND STANDARDS OF REVIEW

We have jurisdiction under 28 U.S.C. § 1292.

We review the denial of a preliminary injunction for

abuse of discretion. Harris v. Bd. of Supervisors, 366 F.3d

754, 760 (9th Cir. 2004). A district court abuses its discretion

if it rests its decision “on an erroneous legal standard or on

clearly erroneous factual findings.” United States v. Schiff,

379 F.3d 621, 625 (9th Cir. 2004) (internal quotation marks

omitted). “We review conclusions of law de novo and

findings of fact for clear error.” All. for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (internal

quotation marks omitted).

DISCUSSION

A preliminary injunction is an extraordinary remedy that

may be awarded only if the plaintiff clearly shows entitlement

to such relief. Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7, 22 (2008). “A plaintiff seeking a preliminary

injunction must establish [1] that he is likely to succeed on

the merits, [2] that he is likely to suffer irreparable harm in
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 11

the absence of preliminary relief, [3] that the balance of

equities tips in his favor, and [4] that an injunction is in the

public interest.” Id. at 20.

A. Test for Analyzing a Claim of Compelled Speech

We begin by considering Plaintiffs’ likelihood of success

on the merits of their First Amendment challenge. The First

Amendment provides that “Congress shall make no law . . .

abridging the freedom of speech.”1 U.S. Const. amend. I. Its

protection is broad, and the Supreme Court has “been

reluctant to mark off new categories of speech for diminished

constitutional protection.” NIFLA, 138 S. Ct. at 2372

(internal quotation marks omitted). But NIFLA also

acknowledged that the Court has “applied a lower level of

scrutiny to laws that compel disclosures in certain contexts,”

including cases analyzing the required disclosure of “factual,

noncontroversial information in . . . ‘commercial speech.’” 

Id.

The Ordinance regulates commercial speech and compels

certain disclosures.2 Therefore, in addressing Plaintiffs’

claim, we first determine what level of scrutiny applies. The

parties dispute whether we should analyze the Ordinance’s

compliance with the First Amendment under Central Hudson

Gas &Electric Corp. v. Public Service Commission, 447 U.S.

1 The Due Process Clause ofthe Fourteenth Amendment incorporates

the First Amendment against the states. Va. State Bd. of Pharmacy v. Va.

Citizens Consumer Council, Inc., 425 U.S. 748, 749 n.1 (1976).

2

Judge Ikuta’s special concurrence discusses at length a proposition

that no one disputes: that the warning is compelled speech, requiring a

First Amendment analysis.
12 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

557 (1980), or under Zauderer, 471 U.S. 626. We have

discussed those two tests previously, stating that:

Under Central Hudson, the government

may restrict or prohibit commercial speech

that is neither misleading nor connected to

unlawful activity, as long as the governmental

interest in regulating the speech is substantial. 

447 U.S. at 564. The restriction or prohibition

must “directly advance the governmental

interest asserted,” and must not be “more

extensive than is necessary to serve that

interest.” Id. at 566. Under Zauderer . . . , the

government maycompel truthful disclosure in

commercial speech as long as the compelled

disclosure is “reasonably related” to a

substantial governmental interest. Zauderer,

471 U.S. at 651.

CTIA–The Wireless Ass’n v. City of Berkeley, 854 F.3d 1105,

1115 (9th Cir. 2017).3

In NIFLA, the Supreme Court applied the Zauderer test

without deciding whether that test, in fact, applied. NIFLA,

138 S. Ct. at 2376–77. But before NIFLA, we examined a

similar health and safety warning and held squarely that

Zauderer provides the proper analytical framework for

considering required warnings on commercial products: 

3 The Supreme Court vacated and remanded our opinion in CTIA for

reconsideration in light of NIFLA. CTIA, 138 S. Ct. 2708 (2018). As will

be evident from the text that follows, we reconsider relevant portions of

CTIA here in light of NIFLA and see nothing in NIFLA that is inconsistent

with those aspects of CTIA with which we agree in this opinion.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 13

“[T]he government may compel truthful disclosure in

commercial speech as long as the compelled disclosure is

‘reasonably related’ to a substantial governmental interest.” 

CTIA, 854 F.3d at 1115. We rejected the argument that

intermediate scrutiny—as required by Central Hudson,

447 U.S. 557, for situations in which speech is restricted or

prohibited—should govern. CTIA, 854 F.3d at 1115–17. We

also rejected the argument that Zauderer applies only to

situations in which the government requires disclosures to

prevent consumer deception, pointing out that we were

joining the holdings of several of our sister circuits. Id. at

1116–17 (citing Am. Meat Inst. v. U.S. Dep’t of Agric.,

760 F.3d 18 (D.C. Cir. 2014) (en banc); Disc. Tobacco City

&Lottery, Inc. v. United States, 674 F.3d 509 (6th Cir. 2012);

N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 556 F.3d 114

(2d Cir. 2009); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d

104 (2d Cir. 2001)).

NIFLA requires us to reexamine how we approach a First

Amendment claim concerning compelled speech. But

nothing in NIFLA suggests that CTIA was wrongly decided. 

To the contrary, NIFLA preserved the exception to heightened

scrutiny for health and safety warnings. The Supreme Court

made clear that it was not calling into “question the legality

of health and safety warnings long considered permissible.” 

NIFLA, 138 S. Ct. at 2376.4 NIFLA did not address, and a

4

Judge Ikuta’s special concurrence reads this portion of NIFLA to

mean that only certain health and safety warnings (those of ancient origin)

are excepted from heightened scrutiny. But the most natural reading of

this passage in the Court’s opinion is that required health and safety

warnings, which have long been permitted, are still allowed. In this

statement, the NIFLA majority was countering Justice Breyer’s dissent,

which lists examples of such warnings, including both mandatory advice

concerning seat belts and mandatory advice about the availability of a
14 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

fortiori did not disapprove, the circuits’ precedents, including

CTIA, which have unanimously held that Zauderer applies

outside the context of misleading advertisements. See CTIA,

854 F.3d at 1116–17 (citing cases from the D.C., Second, and

Sixth Circuits). In short, we reaffirm our reasoning and

conclusion in CTIA that Zauderer provides the appropriate

framework to analyze a First Amendment claim involving

compelled commercial speech—even when the government

requires health and safety warnings, rather than warnings to

prevent the deception of consumers. CTIA, 854 F.3d at 1117. 

We therefore proceed to apply Zauderer to Defendant’s

required warning.

B. Application of the Zauderer test

The Zauderer test, as applied in NIFLA, contains three

inquiries: whether the notice is (1) purely factual,

(2) noncontroversial, and (3) not unjustified or unduly

burdensome. A compelled disclosure accompanying a related

product or service must meet all three criteria to be

constitutional. NIFLA, 138 S. Ct. at 2372. Neither NIFLA

nor any other Supreme Court precedent requires that we

apply these criteria in any particular order. The NIFLA

Court’s analysis began with the question whether the notice

was “unjustified or unduly burdensome.” Id. at 2377 (citing

Zauderer, 471 U.S. at 651). By following the same sequence,

we do not suggest that courts must begin by analyzing

whether a disclosure requirement is unjustified or unduly

whooping cough vaccine, 138 S. Ct. at 2380–81. There is no indication

that either of those required disclosures is of ancient origin or that the

majority intended some health and safety warnings (if accurate,

uncontroversial, and not unduly burdensome) to be precluded merely

because the knowledge that the warnings convey is new.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 15

burdensome, but we find it useful to begin with that prong

here. Defendant has the burden of proving that the warning

is neither unjustified nor unduly burdensome. Ibanez v. Fla.

Dep’t of Bus. & Prof’l Regulation, 512 U.S. 136, 146 (1994). 

On this preliminary record, Defendant has not carried its

burden.5

Defendant’s argument that the border and 20% size

requirements adhere to the best practices for health and safety

warnings is unpersuasive. We recognize that some tobacco

and prescription warnings must occupy at least 20% of those

products’ labels or advertisements. Am. Beverage Ass’n v.

City & County of San Francisco, 187 F. Supp. 3d 1123,

1138–39 (N.D. Cal. 2016). And Defendant’s expert

concluded that larger warnings are more effective. But the

record here shows that a smaller warning—half the

size—would accomplish Defendant’s stated goals.

Defendant’s expert cited and discussed a study that

examined a warning similar to that required by the

Ordinance.6 That study used warnings covering only 10% of

the image. The expert concluded that the cited study

“provides empirical support that the message content and

5 Contrary to Judge Ikuta’s characterization, we do not preclude

Defendant from arguing that the Ordinance survives heightened scrutiny. 

Concurrence at 28. Logically, though, if the warning does not meet a

lower standard, it necessarily does not meet a higher standard. See

NIFLA, 138 S. Ct. at 2377 (“Even under Zauderer, a disclosure

requirement cannot be ‘unjustified or unduly burdensome.’” (quoting

Zauderer, 471 U.S. at 651)).

6 The study’s warning read “Safety Warning: Drinking beverages

with added sugar[s] contributes to obesity, diabetes, and tooth decay,” and

included a border.
16 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

design of the San Francisco warning is associated [with] an

improved understanding of health harms associated with

overconsumption of SSBs and may reduce the purchase of

SSBs—two of the primary objectives identified in the San

Francisco ordinance.” The findings of that study thus

undermine Defendant’s position, because the findingssuggest

that the Ordinance’s goals could be accomplished with a

smaller warning. On this record, therefore, the 20%

requirement is not justified when balanced against its likely

burden on protected speech.

In addition, the argument that the Ordinance incorporates

best practices does not respond to the First Amendment

balancing test that we must apply. Although the disclosures

in NIFLA were more onerous than the Ordinance’s disclosure,

similar concerns are present here: Defendants have not

shown that the contrasting rectangular border containing a

warning that covers 20% of the advertisement does not

“drown[] out” Plaintiffs’ messages and “effectively rule[] out

the possibility of having [an advertisement] in the first place.” 

138 S. Ct. at 2378 (internal quotation marks omitted). On this

record, therefore, the 20% requirement is not justified and is

unduly burdensome when balanced against its likely burden

on protected speech.

To be clear, we do not hold that a warning occupying

10% of product labels or advertisements necessarily is valid,

nor do we hold that a warning occupying more than 10% of

product labels or advertisements necessarily is invalid. See

id. (“We express no view on the legality of a similar

disclosure requirement that is better supported or less

burdensome.”). Rather, we hold only that, on this record,

Defendant has not carried its burden to demonstrate that the

Ordinance’s requirement is not “unjustified or unduly
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 17

burdensome.” See id. at 2377. The required warnings

therefore offend Plaintiffs’ First Amendment rights by

chilling protected speech. See id. at 2378 (“[The notice]

imposes an unduly burdensome disclosure requirement that

will chill [the speaker’s] protected speech.”).

The Supreme Court made clear in NIFLA that a

government-compelled disclosure that imposes an undue

burden fails for that reason alone. Id. at 2377. Indeed, the

Court ended its own analysis with that holding. Id. at 2378. 

We need not, and therefore do not, decide whether the

warning here is factually accurate and noncontroversial.

The remaining factors of the preliminary injunction test

also favor an injunction. Because Plaintiffs have a colorable

First Amendment claim, they have demonstrated that they

likely will suffer irreparable harm if the Ordinance takes

effect. See Doe v. Harris, 772 F.3d 563, 583 (9th Cir. 2014)

(“A colorable First Amendment claim is irreparable injury

sufficient to merit the grant of relief.” (internal quotation

marks omitted)). Next, “[t]he fact that [Plaintiffs] have raised

serious First Amendment questions compels a finding that . . .

the balance of hardships tips sharply in [Plaintiffs’] favor.” 

Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th

Cir. 2007) (internal quotation marks omitted). Finally, we

have “consistently recognized the significant public interest

in upholding First Amendment principles.” Doe, 772 F.3d at

583 (internal quotation marks omitted). Indeed, “it is always

in the public interest to prevent the violation of a party’s

constitutional rights.” Melendres v. Arpaio, 695 F.3d 990,

1002 (9th Cir. 2012) (internal quotation marks omitted).

In summary, Plaintiffs have met each of the requirements

for a preliminary injunction. We therefore conclude that the
18 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

district court abused its discretion by denying Plaintiffs’

motion.

REVERSED and REMANDED.

IKUTA, Circuit Judge, dissenting from most of the reasoning,

concurring in the result:

In National Institute of Family & Life Advocates v.

Becerra (NIFLA), the Supreme Court provided a framework

for analyzing First Amendment challenges to governmentcompelled speech. 138 S. Ct. 2361 (2018). Under this

framework, a government regulation that compels a

disclosure (like the San Francisco ordinance in this case) is a

content-based regulation of speech, which is subject to

heightened scrutiny under the First Amendment unless the

Zauderer exception applies. The majority fails to follow this

analytical framework and makes several crucial errors. I

therefore dissent.

I

NIFLA broke new ground on several key issues. 

Although the Court has previously considered the

constitutionality of government regulations requiring lawyers

to disclose certain information in their advertisements, see

Zauderer v. Office of Disciplinary Counsel of Supreme Court

of Ohio, 471 U.S. 626, 650–51 (1985); see also Milavetz,

Gallop & Milavetz, P.A. v. United States, 559 U.S. 229,

250–52 (2010); Ohralik v. Ohio State Bar Ass’n, 436 U.S.

447, 457–59 (1978), NIFLA is the first Supreme Court case

to apply Zauderer to commercial speech more generally.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 19

NIFLA considered the constitutionality of a California

statute that required clinics that primarily served pregnant

women to post government-drafted notices. NIFLA, 138 S.

Ct. at 2368. State-licensed clinics were required to post a

notice that stated: “California has public programs that

provide immediate free or low-cost access to comprehensive

family planning services (including all FDA-approved

methods of contraception), prenatal care, and abortion for

eligible women.” Id. at 2369 (referred to as the “licensed

notice”). Unlicensed clinics were required to post a notice

stating that the “facility is not licensed as a medical facility

by the State of California and has no licensed medical

provider who provides or directly supervises the provision of

services.” Id. at 2370 (referred to as the “unlicensed notice”). 

Two crisis pregnancycenters, among other plaintiffs, brought

suit, claiming that both the licensed and unlicensed notices

violated their First Amendment rights.

NIFLA began by making two important contributions to

First Amendment jurisprudence. First, in its consideration of

the two government disclosure requirements, NIFLA

established, for the first time, that government-compelled

speech is a content-based regulation of speech.1 The Court

explained that “[b]y compelling individuals to speak a

particular message,” the licensed notices “alter[ed] the

content of [their] speech” and thus were content-based

regulations. Id. at 2371. Such content-based regulations “are

1 This holding arguably supersedes Zauderer, which appeared to

apply rational basis review to laws requiring attorneys to make certain

disclosures, stating, “we hold that an advertiser’s rights are adequately

protected as long as disclosure requirements are reasonably related to the

State’s interest in preventing deception of consumers.” See Zauderer,

471 U.S. at 651.
20 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

presumptively unconstitutional and may be justified only if

the government proves that they are narrowly tailored to

serve compelling state interests.” Id.

Second, NIFLA made clear that governments may not

“impose content-based restrictions on speech without

persuasive evidence of a long (if heretofore unrecognized)

tradition to that effect.” Id. (cleaned up). The Court therefore

rejected a line of circuit court cases holding that professional

speech is exempt “from the rule that content-based

regulations of speech are subject to strict scrutiny.” Id. at

2371–72. In doing so, NIFLA overruled our opinion in Pickup

v. Brown, 740 F.3d 1208 (9th Cir. 2014), as well as a line of

decisions in the Third and Fourth Circuits, see, e.g., King v.

Governor of N.J., 767 F.3d 216 (3d Cir. 2014); Moore-King

v. Cty. of Chesterfield, 708 F.3d 560 (4th Cir. 2013). Further,

NIFLA emphasized that “[t]his Court has been reluctant to

mark off new categories of speech for diminished

constitutional protection.” Id. at 2372 (internal quotation

marks omitted). While the Court did not “question the

legality of health and safety warnings long considered

permissible,” id. at 2376, the Court did not create a

standalone exception for such content-based restrictions. 

Instead, NIFLA reiterated that a category of speech is exempt

from heightened scrutiny under the First Amendment only if

the state can show a “long (if heretofore unrecognized)

tradition to that effect.” Id. at 2372.

Against this backdrop, the Court established its analytic

framework. A government regulation “compelling

individuals to speak a particular message” is a content-based

regulation that is subject to strict scrutiny, subject to two

exceptions. Id. at 2372–73. First, the Court held that its

precedents (most notablyZauderer, 471 U.S. at 650) afforded
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 21

more deferential review to “some laws that require

professionals to disclose factual, noncontroversial

information in their ‘commercial speech.’” NIFLA, 138 S.

Ct. at 2372. Second, states may regulate professional

conduct, even though that conduct incidentally involves

speech, such as through informed consent requirements. Id.;

see also Planned Parenthood of Southeastern Pa. v. Casey,

505 U.S. 833, 884 (1992).

To determine whether the Zauderer exception applies, a

court must consider whether the compelled speech governs

only [1] “commercial advertising” and requires the disclosure

of [2] “purely factual and [3] uncontroversial information

about [4] the terms under which . . . services will be

available.” NIFLA, 138 S. Ct. at 2372 (internal quotation

marks and citations omitted). If the government regulation

meets those requirements, the regulation should be upheld

unless it is [5] “unjustified or [6] unduly burdensome.” Id.

If the regulation does not qualify for the Zauderer

exception, the regulation must survive heightened scrutiny to

avoid violating the First Amendment. Id. at 2372. The Court

did not decide whether strict scrutiny or intermediate scrutiny

applies to government-compelled commercial disclosures that

do not fall under the Zauderer exception. See id.

Applying this legal framework to both the licensed and

unlicensed notice requirements, the Court held that neither

regulation survived First Amendment scrutiny. The Court

began by considering the notices required for licensed clinics. 

Id. at 2371–72. It first determined that the Zauderer

exception did not apply for two reasons. Id. at 2372. First,

the licensed notice was “not limited to purely factual and

uncontroversial information about the terms under which . . .
22 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

services w[ould] be available,” because the notice “in no way

relate[d] to the services that licensed clinics provide.” Id.

(internal quotation marks and citations omitted). Second, the

notice was not limited to uncontroversial information,

because abortion is “anything but an ‘uncontroversial’ topic.” 

Id.

Because the Zauderer exception did not apply (and

because the exception applicable to regulations of conduct

that incidentally burdens speech, such as informed consent

requirements, did not apply, see id. at 2373–74), the Court

then considered whether the licensed notice requirement

survived heightened scrutiny. The Court declined to

determine whether strict scrutiny or intermediate scrutiny

applied to the licensed notice, because that notice failed even

under intermediate scrutiny. Id. at 2375. Even assuming the

state had a substantial state interest in providing low-income

women with information about state-sponsored services, the

Court held that the licensed notice was not sufficiently drawn

to achieve this interest: it was underinclusive, imprecisely

drawn, and could have been replaced with less intrusive

alternatives. Id. at 2375–76.

Turning to the notice required for unlicensed clinics, the

Court again began by considering the applicability of the

Zauderer exception. Id. at 2376–77. Because the unlicensed

notice stated only that the “facility is not licensed as a

medical facility by the State of California and has no licensed

medical provider who provides or directly supervises the

provision of services,” the Court did not need to address the

threshold Zauderer factors; it was apparent that the

unlicensed notice required the disclosure of purelyfactual and

uncontroversial information about the terms under which

services would be available. See id. at 2377. The Court
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 23

instead focused on whether the notice requirement was

unjustified or unduly burdensome. See id. The Court

concluded that California had not satisfied its burden of

proving that the unlicensed notice requirement satisfied these

two prongs, because “California has not demonstrated any

justification for the licensed notice that is more than “purely

hypothetical,’” id., and the notice unduly burdened protected

speech, id. at 2377–78. The Court held that the notice was

underinclusive because it covered “a curiously narrow subset

of speakers.” Id. at 2377. Moreover, the notice would have

a chilling effect because the statute required that the

government-drafted statement be in “larger text [than

surrounding text] or contrasting type or color” and be posted

in as many as 13 different languages. Id. at 2378. These

requirements would “drown[] out the facility’s own

message.” Id.

In contrast to its analysis of the licensed notice, the Court

did not address the question whether the unlicensed notice

requirement survived heightened scrutiny; there was no need

to do so, because California did “not explain how the

unlicensed notice could satisfy any standard other than

Zauderer.” Id. at 2377 n.3. In other words, because the state

did not make a colorable argument that the unlicensed notice

requirement would survive heightened scrutiny, there was no

dispute that the notice requirement violated the unlicensed

clinics’ First Amendment rights unless the Zauderer

exception applied. Because Zauderer did not apply, the

unlicensed notice requirement was invalid, and the Court did

not have to proceed further.
24 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

II

Under NIFLA, San Francisco’s ordinance requiring

companies who advertise certain sugar-sweetened beverages

on billboards within San Francisco to include a warning

message constitutes a “content-based regulation of speech”

subject to heightened scrutiny unless an exception applies.

Turning first to the Zauderer exception, a court should

consider whether the regulation requires the disclosure of

purely factual and uncontroversial information about the

terms under which services will be available. The required

warning states:

WARNING: Drinking beverages with added

sugar(s) contributes to obesity, diabetes, and

tooth decay. This is a message from the City

and County of San Francisco.

S.F. Health Code § 4203(a).

This warning does not provide “purely factual and

uncontroversial information about the terms under which . . .

services will be available.” Cf. NIFLA, 138 S. Ct. at 2372;

Zauderer, 471 U.S. at 651. The factual accuracy of the

warning is disputed in the record. Among other things, the

warning is contrary to statements by the FDA that added

sugars are “generally recognized as safe,” 21 C.F.R. §§ 184.1,

184.1866, and “can be a part of a healthy dietary pattern”

when not consumed in excess amounts, 81 Fed. Reg. 33,742,

33,760 (May 27, 2016). Moreover, as Judge Christen’s

concurrence points out, the disclosure is literally false with

respect to Type I diabetes. MBC Op. at 34–35. Although

NIFLA did not define “uncontroversial,” the warning here
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 25

requires the advertisers to convey San Francisco’s one-sided

policy views about sugar-sweetened beverages. The record

shows this is a controversial topic, and therefore, the

ordinance does not qualify as “uncontroversial information”

under the third prong of NIFLA. Finally, the warning does

not relate to the terms on which the advertisers provide their

services. The warning merely relates to the consumption of

sugar-sweetened beverages, which is a product rather than a

service, and does not address the terms on which that product

is provided.

Even if the warning requirement provided factual and

uncontroversial information about the terms of service, the

requirement would fail because it is unduly burdensome. As

the majority acknowledges, the warning’s size, required font

size, contrasting color, and other requirements contribute to

the severity of the warning’s burden. Maj. Op. at 15–16. 

NIFLA makes clear that requiring commercial speakers, like

the unlicensed clinics in NIFLA, to fight a governmentscripted message that drowns out their own advertisements is

unduly burdensome. Moreover, the record indicates that the

warning label would have a chilling effect, causing some

manufacturers of sugar-sweetened beverages to cease

advertising on covered media. Therefore, the Zauderer

exception does not apply.

Nor does any other exception apply.

2 The majority is

wrong to the extent it suggests that “NIFLA preserved the

exception to heightened scrutiny for health and safety

warnings.” Maj. Op. at 13. NIFLA made clear that only

2 Obviously, the warning requirement does not constitute a regulation

of professional conduct that incidentally involves speech, such as

informed consent requirements.
26 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

“health and safety warnings long considered permissible”

would be excepted. See 138 S. Ct. at 2376. California has

made no showing that the warning here was “long considered

permissible,” nor could it do so. The types of speech exempt

from First Amendment protection are “well-defined and

narrowly limited classes of speech, the prevention and

punishment of which have never been thought to raise any

Constitutional problem,” from 1791 to present. See United

States v. Stevens, 559 U.S. 460, 468–69 (2010). These

limited exceptions include defamation, obscenity, and fraud,

see id., not newly invented classes of speech, see NIFLA,

138 S. Ct. at 2371–72. NIFLA did not specify what sorts of

health and safety warnings date back to 1791, but warnings

about sugar-sweetened beverages are clearlynot among them. 

Indeed, the First Amendment applies even to products that

pose more obvious threats to health and safety, such as

cigarettes. In a case involving restrictions on cigarette

advertisements, the Court held that the “First Amendment

also constrains state efforts to limit the advertising of tobacco

products, because so long as the sale and use of tobacco is

lawful for adults, the tobacco industry has a protected interest

in communicating information about its products and adult

customers have an interest in receiving that information.” 

Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 571 (2001). 

Given this context, our precedents creating a First

Amendment exception for government-compelled health and

safety warnings, see CTIA–The Wireless Ass’n v. City of

Berkeley, Calif., 854 F.3d 1105, 1116–17 (9th Cir. 2017),

vacated, 138 S. Ct. 2708 (2018), are no more persuasive than

our precedents creating a First Amendment exception for

professional speech, which were struck down by NIFLA. In

neither case is there a long tradition of government regulation

dating back to 1791.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 27

Because Zauderer does not apply here, NIFLA directs us

to consider whether the ordinance survives heightened

scrutiny. Under intermediate scrutiny, even assuming that

there is a substantial state interest in warning the public of

health dangers from drinking sugar-sweetened beverages, the

warning requirement is not sufficiently drawn to that interest. 

First, the requirement is underinclusive both as to the covered

products and as to the means of advertisement. The

ordinance does not even apply to all sugar-sweetened

beverages, much less all sugar-sweetened products. 

Moreover, it applies to posters and billboards, but not digital

ads or other types of media. Like the notices in NIFLA, the

warning requirement is “wildly underinclusive.” See 138 S.

Ct. at 2367. Second, San Francisco could disseminate health

information by other, less burdensome means, such as a less

intrusive notice or a public health campaign. Cf. id. at 2376. 

Because the warning requirement is not narrowly drawn, it

does not survive even intermediate scrutiny. Thus, it is not

necessaryto determine whether strict orintermediate scrutiny

applies here.

III

While the majority correctly concludes that the

advertisers have shown a likelihood of prevailing on the

merits of their First Amendment claims, the majority fails to

follow the analytic framework set out in NIFLA and makes

several crucial errors.

First, the majority errs by skipping over the threshold

question regarding Zauderer’s applicability, namely whether

the notice requirement applies to commercial advertising and

requires the disclosure of purely factual and uncontroversial

information about the terms under which services will be
28 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

available. Despite focusing primarily on the undue burden

prong, the majority fails to provide any guidance regarding

when a warning is unjustified or unduly burdensome. Instead

of following NIFLA in considering the totality of the

requirements of the unlicensed notice and their effect on the

speaker (there, the clinics) to conclude that the unlicensed

notice was unduly burdensome, see 138 S. Ct. at 2378, the

majority seems to suggest that the test is whether a smaller

warning would accomplish San Francisco’s stated goals. 

Maj. Op. at 15–16.

Most important, the majority errs by failing to consider

whether San Francisco’s ordinance could be upheld under

heightened scrutiny even if the Zauderer exception does not

apply. The majority concedes that it does not “preclude [San

Francisco] from arguing that the Ordinance survives

heightened scrutiny.” Maj. Op. at 15 n.5. And here, San

Francisco has done just that, arguing vigorously that its

ordinance survives intermediate scrutiny. The majority fails

to address this argument, apparently on the ground that

“logically” any such argument would be futile because “if the

warning does not meet a lower standard, it necessarily does

not meet a higher standard.” Maj. Op. at 15 n.5. This

reasoning is flawed. A government regulation, for instance,

may require a commercial speaker to include images of dying

cancer patients on cigarette packages. See, e.g., Required

Warnings for Cigarette Packages and Advertisements,

75 Fed. Reg. 69,524, 69,533 (Nov. 12, 2010) (proposed rule). 

While a court might conclude that such compelled speech is

not “purely factual and uncontroversial,” the court might

nevertheless conclude that the regulation meets the test under

Central Hudson Gas & Electric Corp. v. Public Service

Commission of New York, 447 U.S. 557, 563–65 (1980)

(assuming this case provides the applicable test), because the
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 29

government has a substantial interest in discouraging

smoking, the regulation directly and materially advances the

interest, and the restriction is narrowly tailored to discourage

young people from smoking (based on expert opinion). In

any event, the majority is bound by NIFLA, which requires

courts to consider such arguments: NIFLA applied

heightened scrutiny to the licensed notice and indicated that

it would have applied heightened scrutiny to the unlicensed

notice had California made any arguments on that point. See

NIFLA, 138 S. Ct. at 2377 n.3. The majority’s failure to

address San Francisco’s argument is therefore contrary to

Supreme Court direction.

Because the Associations have shown a likelihood of

prevailing on the merits and because the other factors for

granting a preliminary injunction weigh in the Associations’

favor, I agree with the majority’s conclusion that the district

court abused its discretion by denying the Associations’

motion for a preliminary injunction. But because the

majority fails to apply NIFLA’s framework for analyzing

when government-compelled speech violates the First

Amendment, I dissent from the majority’s reasoning.

CHRISTEN, Circuit Judge, joined by THOMAS, Chief

Judge, concurring in part and concurring in the judgment:

I agree with the majority that Zauderer’s framework

applies to the government-compelled speech at issue in this

case. See Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 651 (1985). I also agree that the district court’s

decision must be reversed, but I would not reach the issue the

majority relies upon. I would reverse because the City and
30 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

County of San Francisco cannot show that the speech it seeks

to compel is “purely factual[.]” Id. For this reason, San

Francisco’s proposed warning fails what should be the

threshold inquiry in this case, and it violates the First

Amendment.

Zauderer considered an attorney’s First Amendment

challenge to a state bar rule. Id. at 632–33, 659 n.3. For

attorneys advertising that their clients would not pay fees if

their lawsuits were unsuccessful, the rule required disclosure

that the clients would still be liable for litigation costs. Id. 

The Court held that the bar rule did not violate the First

Amendment. In reaching this result, the Court observed that

“disclosure requirements trench much more narrowly on an

advertiser’s interests than do flat prohibitions on speech[.]” 

Id. at 651. It was critical to the Court’s decision that the bar

rule was intended to prevent consumer deception; the Court

stressed that the rule required only the inclusion of “purely

factual and uncontroversial information aboutthe terms under

which [an attorney’s] services will be available.” Id.

(emphasis added).

Any sort of compelled speech potentially infringes First

Amendment rights, and case law approves governmentmandated messages only in very limited contexts. See, e.g.,

Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S.

229, 249–50 (2010) (upholding requirement that lawyers

disclose certain information in advertisements to prevent

consumer deception); Pharm. Care Mgmt. Ass’n v. Rowe,

429 F.3d 294, 310 (1st Cir. 2005) (per curiam) (upholding

requirement that pharmacy benefit managers disclose

conflicts of interest and certain financial arrangements); Nat’l

Elec. Mfrs. Ass’n v. Sorrell, 272 F.3d 104, 113–15 (2d Cir.

2001) (upholding labeling requirement intended to increase
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 31

consumer awareness about the amount of mercury in

products). Where a government-compelled message “does

not require the disclosure of purely factual information” and

instead “compels the carrying of the [government’s]

controversial opinion[,]” it is clearly “unconstitutionally

compelled speech[.]” Video Software Dealers Ass’n v.

Schwarzenegger, 556 F.3d 950, 953 (9th Cir. 2009), aff’d sub

nom. Brown v. Entm’t Merch. Ass’n, 564 U.S. 786 (2011). 

Zauderer and subsequent case law leave no doubt that any

government-compelled speech must be, at the very least,

factually accurate.

The majority acknowledges that National Institute of

Family & Life Advocates v. Becerra (“NIFLA”), 138 S. Ct.

2361 (2018), does not require courts to begin the Zauderer

analysis by addressing whether the compelled speech is

unjustified or unduly burdensome; NIFLA did not modify

Zauderer. NIFLA struck down a California law requiring that

clinics primarily serving pregnant women provide certain

notices. See id. at 2378. Licensed clinics were required to

post notices that California provides free or low-cost services,

including abortions, and unlicenced clinics were required to

give notice that they were not licensed to provide medical

services. Id. at 2369. NIFLA held that the speech imposed

upon licensed clinics did not satisfyZauderer because, unlike

the disclosure required for attorneys’ services ads, the notice

regarding the availability of abortion services did not “relate[]

to the services that licensed clinics provide[d],” and it

concerned the controversial topic of abortion. Id. at 2372. 

The notice that unlicensed clinics were compelled to post

violated the First Amendment because, “[e]ven under

Zauderer, a disclosure requirement cannot be ‘unjustified or

unduly burdensome,’” and the Court ruled that California did

not demonstrate any justification for the compelled speech
32 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

that was more than purely hypothetical. Id. at 2377 (quoting

Zauderer, 471 U.S. at 651).

Here, our court holds that Zauderer requires compelled

speech to be (1) purely factual; (2) noncontroversial; and

(3) not unjustified or unduly burdensome. Additionally, the

compelled speech must relate to the speaker’s services or

products. Where I differ is with the majority’s application of

the test. The majority skips whether San Francisco’s

compelled warning is factually accurate and jumps straight to

asking whether the proposed warning is “unjustified or

unduly burdensome.” The court reasons that NIFLA made

clear that “a government-compelled disclosure that imposes

an undue burden fails for that reason alone,” but the same is

true of Zauderer’s other requirements. The majority’s

decision to follow NIFLA and address the “unduly

burdensome” question first overlooks that there was no

dispute in NIFLA about the factual accuracy of the compelled

speech. We have no precedent addressing a government

proposal to appropriate commercial advertising space for the

purpose of conveying a factually inaccurate message, but

where, as here, the parties disagree about the veracity of

compelled speech, the court should begin by asking whether

the government’s message is objectively true. Deciding

whether a compelled message is controversial or unduly

burdensome will often entail much more subjective

judgments. If compelled speech is not factually accurate, the

court’s inquiry should end.

San Francisco seeks to require that advertisements for

sugar-sweetened beverages include the following:

WARNING: Drinking beverages with added

sugar(s) contributes to obesity, diabetes, and
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 33

tooth decay. This is a message from the City

and County of San Francisco.

To survive the “purely factual” part of Zauderer’s test, the

statement that beverages with added sugars “contribute[] to”

obesity, diabetes, and tooth decay, must be true—yet there is

no evidence that it is. To the contrary, “diabetes” is an

umbrella term referring to both type 1 diabetes (sometimes

called juvenile-onset or insulin-dependent diabetes) and type

2 diabetes. Rather than using the generic term “diabetes,”

medical studies investigating causation are careful to

differentiate between the two forms of the disease.1 The

precise causes of type 1 diabetes are unknown, but genetic

and environmental factors, including viruses, are thought to

contribute to its development.2 Research demonstrates a

correlation between the consumption of sugar-sweetened

beverages and the development of type 2 diabetes,

3

but San

Francisco has not shown that there is any association at all

between consumption of sugar-sweetened beverages and the

development of type 1 diabetes. Ironically, the American

Diabetes Association directly addresses this on its “Diabetes

1

See, e.g., M. Vanstone et al., Patient Perspectives on Quality of Life

with Uncontrolled Type 1 Diabetes Mellitus: A Systematic Review and

Qualitative Meta-synthesis, 15 ONTARIO HEALTH TECH. ASSESSMENT

SERIES 1 (2015); Vasanti S. Malik et al., Sugar-Sweetened Beverages,

Obesity, Type 2 Diabetes Mellitus, and Cardiovascular Disease Risk,

121 CIRCULATION 1356 (2010).

2

See Type 1 Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 7,

2017), https://www.mayoclinic.org/diseases-conditions/type-1-

diabetes/symptoms-causes/syc-20353011.

3

See, e.g., Vasanti S. Malik et al., Sugar-Sweetened Beverages and

Risk of Metabolic Syndrome and Type 2 Diabetes: A Meta-Analysis,

33 DIABETES CARE 2477 (2010).
34 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

Myths” webpage, stating that type 1 diabetes is not caused by

sugar, it “is caused by genetics and unknown factors that

trigger the onset of the disease.”4 The message that drinking

sugar-sweetened beverages “contributes to” diabetes

(including type 1 diabetes) is not only not “purely factual and

uncontroversial,” it is devoid of scientific support. See

Zauderer, 471 U.S. at 651.

In this particular case, it cannot be doubted that the

government’s proposed message is controversial: it would

require that manufacturers, retailers, and advertisers include

in their ads, under a banner that begins “Warning,” the

message that their product contributes to diabetes even

though the causes of type 1 diabetes are not actually known.5

Thus, in addition to being factually inaccurate, San

Francisco’s proposed warning also fails Zauderer’s

requirement that the compelled speech be uncontroversial. 

Though I would strike the warning under either the first or

second part of Zauderer’s test, my view is that, given the

facts of this case, we should treat Zauderer’s “purely factual”

inquiry as the threshold question because it provides a much

more objective basis for disqualifying San Francisco’s

compelled speech. It is possible to envision a scenario in

which the “unjustified or unduly burdensome” inquiry could

provide a more objective basis for striking a governmentmandated message. For example, that could occur if

determining the accuracy of a proposed message was not as

4

See Diabetes Myths, AMERICAN DIABETES ASSOC.,

http://www.diabetes.org/diabetes-basics/myths/ (last updated Aug. 20,

2018).

5

See Diabetes: Symptoms & Causes, MAYO CLINIC (Aug. 8, 2018),

https://www.mayoclinic.org/diseases-conditions/diabetes/symptomscauses/syc-20371444.
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 35

cut-and-dried as it is here, or if the government tried to

commandeer the majority of available ad space. This is not

one of those cases. Because San Francisco’s compelled

warning undeniably fails Zauderer’s “purely factual” hurdle,

we should not reach whether the message is uncontroversial

or unduly burdensome; both of those inquiries require the

court to make more subjective judgments.

San Francisco argues that its warningmust not be read too

literally, and that consumers will understand that its warning

refers to type 2 diabetes. But the contention that a reasonable

person would understand San Francisco’s intended message

is in tension with the goal of having a public health message

understood by the maximum number of consumers, not just

those with sophisticated levels of health literacy. Because the

message would be conveyed to sophisticated and

unsophisticated consumers, we must read it literally.

Relatedly, San Francisco acknowledges that not every

consumer of sugary drinks will become obese or suffer from

tooth decay or diabetes. It argues that readers will understand

that its warning is intended to convey a community-wide

message: that consuming sugar-sweetened beverages will

lead to more instances of obesity, diabetes, and tooth decay

within the City and County as a whole. But even if the

qualifier “may” is read into the message, and the warning is

understood as “sugary drinks may contribute to obesity,

diabetes and tooth decay on a community-wide basis,” it

remains untrue with regard to type 1 diabetes.

Finally, San Francisco’s compelled message is

problematic because it suggests that sugar is always

dangerous for diabetics. In fact, consuming sugar-sweetened

beverages can be medically indicated for a type 1 diabetic
36 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

when there are signs of hypoglycemia, a complication of type

1 diabetes, because drinking fruit juice or soda raises blood

sugar levels quickly.

6

Insisting that compelled speech be purely factual may

seem persnickety, but there are significant constitutional

implications whenever the government seeks to control our

speech. There are also societal consequences to inaccurate

government-mandated messages. In one study, over eighty

percent of parents of children with type 1 diabetes and over

seventy percent of patients with type 1 diabetes, reported that

they are stigmatized, most commonly by the perception that

diabetes is a character flaw or the result of a failure in

personal responsibility.

7

San Francisco may be commended for aiming to address

serious and growing public health problems, but by

compelling speech that is not factually accurate, it runs afoul

of Zauderer’s caution—“in some instances compulsion to

speak may be as violative of the First Amendment as

prohibitions on speech.” Zauderer, 471 U.S. at 650. When

the government takes the momentous step of mandating that

its message be delivered by private parties, it is exceptionally

important that the compelled speech be purely factual.

For these reasons, though I reach the same result as the

majority, I would hold that the warning San Francisco seeks

6

See Type 1 Diabetes: Diagnosis & Treatment, MAYO CLINIC (Aug.

7, 2017), https://www.mayoclinic.org/diseases-conditions/type-1-diabetes/

diagnosis-treatment/drc-20353017.

7

See Nancy F. Liu et al., Stigma in People with Type 1 or Type 2

Diabetes, 35 CLINICAL DIABETES J. 27 (2017).
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 37

to compel fails the threshold requirement of factual accuracy,

and end the Zauderer analysis there.

NGUYEN, Circuit Judge, concurring in the judgment:

In Central Hudson, the Supreme Court held that

regulation of commercial speech is evaluated under an

intermediate scrutiny standard. See Cent. Hudson Gas &

Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 566 (1980)

(requiring that commercial speech regulation “directly

advances” a “substantial” governmental interest and “is not

more extensive than is necessary to serve that interest”). 

Prior to applying this standard, however, courts must first

determine whether the speech at issue “is false, deceptive, or

misleading.” Zauderer v. Office of Disciplinary Counsel,

471 U.S. 626, 638 (1985); see Central Hudson, 447 U.S. at

566. If the regulation addresses speech that falls into one of

these categories, then Zauderer’s rational basis test applies. 

See Zauderer, 471 U.S. at 651 (holding that disclosure

requirements comport with the First Amendment “as long as

[they] are reasonably related to the State’s interest in

preventing deception of consumers” (emphasis added)). With

almost all other types of regulations,1

“the government’s

power is more circumscribed,” Central Hudson, 447 U.S. at

564, and Central Hudson’s intermediate scrutiny applies.

1 Presumably, the rational basis test also applies to “commercial

speech related to illegal activity,” Cent. Hudson, 447 U.S. at 564, which,

like other deceptive speech, deserves less constitutional protection, see id.

at 563–64.
38 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

I disagree with the majority’s expansion of Zauderer’s

rational basis review to commercial speech that is not false,

deceptive, or misleading. In the majority’s view, Zauderer

applies to regulations requiring public health disclosures. But

it is the commercial message’s accuracy—not its

completeness—that demarcates the boundary between

Central Hudson’s intermediate scrutiny and Zauderer’s

rational basis test. “The First Amendment’s concern for

commercial speech is based on the informational function of

advertising.” Id. at 563. “Even when advertising

communicates only an incomplete version of the relevant

facts, the First Amendment presumes that some accurate

information is better than no information at all.”2

Id. at 562.

The Supreme Court stressed that “Zauderer governs our

review” rather than Central Hudson when a statute is

“directed at misleading commercial speech.” Milavetz,

Gallop & Milavetz, P.A. v. United States, 559 U.S. 229, 249

(2010) (emphasis in original). That the “required disclosures

are intended to combat the problem of inherently misleading

commercial advertisements” is one of the “essential features

of the rule at issue in Zauderer.” Id. at 250. By treating the

“false or misleading” requirement as non-essential, the

majority invites reversal.

2 The analysis does not differ simply because Central Hudson

involved prohibited content and the instant case involves mandated

content. A law compelling the publication of certain content “operates as

a command in the same sense as a statute or regulation forbidding [a

business] to publish specified matter.” Miami Herald Publ’g Co. v.

Tornillo, 418 U.S. 241, 256 (1974); see also Wooley v. Maynard, 430 U.S.

705, 714 (1977) (“[T]he right of freedom of thought protected by the First

Amendment against state action includes both the right to speak freely and

the right to refrain from speaking at all.”).
AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO 39

The Supreme Court recently had the opportunity to

expand Zauderer’s application beyond deceptive speech but

declined to do so. See Nat’l Inst. of Family & Life Advocates

v. Becerra (“NIFLA”), 138 S. Ct. 2361, 2376–77 (2018). 

Instead, the Court reiterated its “reluctan[ce] to mark off new

categories of speech for diminished constitutional

protection.” NIFLA, 138 S. Ct. at 2372 (quoting Denver Area

Educ. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727,

804 (1996) (Kennedy, J., dissenting in part, concurring in

judgment in part, and dissenting in part)). The Court was

“especially reluctant to ‘exempt a category of speech from the

normal prohibition on content-based restrictions.’” Id.

(quoting United States v. Alvarez, 567 U.S. 709, 722 (2012)

(plurality opinion)) (alteration in NIFLA omitted).

The majority’s application ofZauderer to San Francisco’s

sugary beverage ordinance is particularly troubling given that

it regulates speech based on content. The ordinance applies

to “any advertisement . . . that identifies, promotes, or

markets a Sugar-Sweetened Beverage for sale or use” in

specified media. S.F. Health Code § 4202. To the extent San

Francisco is concerned about the health effects of sugar in

food and beverages, its focus on a specific subset of sugarladen products is not evenhanded. See Reed v. Town of

Gilbert, 135 S. Ct. 2218, 2232 (2015). And a requirement for

any vendor of sugary products to convey a particular message

“is a content-based regulation of speech.” NIFLA, 138 S. Ct.

at 2371. While San Francisco’s goal of reducing obesity is

laudable, the appropriate level of scrutiny does not turn on the

government’s good intent.

I join my colleagues who have previously disagreed with

applying Zauderer outside the context of false and misleading

speech, see CTIA–The Wireless Ass’n v. City of Berkeley,
40 AM. BEVERAGE ASS’N V. CITY & CTY. OF SAN FRANCISCO

854 F.3d 1105, 1125 n.2 (9th Cir. 2017) (Friedland, J.,

concurring in part and dissenting in part) (suggesting that

“Zauderer applies only when the government compels a

truthful disclosure to counter a false or misleading

advertisement”), vacated and remanded for reconsideration

in light of NIFLA, 138 S. Ct. 2708 (2018), and I share their

concerns that our current case law will lead to “a proliferation

of warnings and disclosures compelled by local municipal

authorities” that have “only a tenuous link to a ‘more than

trivial’ government interest,” CTIA, 873 F.3d 774, 777 (9th

Cir. 2017) (Wardlaw, J., dissenting from denial of reh’g en

banc).

Because the majority reaches the right result under the

wrong legal standard, I respectfully concur only in the

judgment.