You Want a Warning with That? Sugar-Sweetened Beverages, Safety Warnings, and the Constitution

Sabrina S. Adler Ian E. McLaughlin Seth E. Mermin Reece W. Trevor Over the last few decades, rates of obesity and diabetes have skyrocketed, particularly among low-income communities and communities of color. At the same time, a growing body of research has linked consumption of sugar-sweetened beverages (SSBs)—drinks with added sugars—to these chronic health conditions. FDA, despite repeatedly having been petitioned to address the health effects of SSBs by, for example, determining a safe level of added sugars for beverages or requiring warning labels, has not taken action. State and municipal government efforts to respond to these public health crises have focused predominantly on campaigns to establish excise taxes on sugar-sweetened beverages, but the beverage industry’s energetic electioneering and lobbying have defeated those efforts in most jurisdictions. Other policy initiatives, such as New York City’s proposed limit on sugary beverage portion sizes, have failed in court. Even successful efforts, like the healthy vending policies that apply on government property in states and municipalities across the nation, may only have a small overall effect on SSB consumption. More recently, an increasing number of state and local governments have pursued a new tactic, which they believe will affect SSB consumption to a greater degree without triggering the political opposition likely to face proposals to raise taxes. Instead, these governments seek to place safety warnings on sugar-sweetened beverage containers and advertisements. Providing health and safety information to consumers is a traditional public health strategy that has proven effective in the tobacco and alcohol contexts. And because warnings do not change what may or may not be sold, they are less susceptible to charges of government paternalism; indeed, warnings can be seen as providing valuable information and promoting consumer choice. As experience has already shown, however, that does not mean warning laws will go unopposed in the legislature, or in the courts. The beverage industry and its allies are likely to mount not only legislative opposition to any effort to enact a warning requirement, but also court challenges once any such law is passed. And in those lawsuits, a suite of constitutional challenges awaits these measures, with the First Amendment, the Supremacy Clause, and the Dormant Commerce Clause all standing as potential hurdles. The First Amendment challenge, in particular, will play out against a rapidly changing and unpredictable legal background. From the ferment over the content of compelled disclosures to the developing government speech doctrine to hybrids of both, the constitutional environment around warnings and other disclosures is complex and shifting. It is also of urgent interest to both advocates of public health and defenders of the beverage industry. This article explores the legal landscape that faces sugar-sweetened beverage safety warning laws. It first provides an overview of the health effects of sugar-sweetened beverages and of the efficacy of warning labels, both of which have implications for examination of the constitutional issues. The article then examines the current state of relevant First Amendment, Supremacy Clause, and Dormant Commerce Clause doctrine. The outcome of a challenge to a sugar-sweetened beverage warning requirement is not certain, and the ever-changing legal terrain could easily shift again. Nonetheless, the article concludes that a carefully crafted law requiring consumer warnings about the adverse health effects of sugary drinks would survive legal challenge under the First Amendment, would not be held preempted by the federal Nutrition Labeling and Education Act, and would withstand any attack brought under the Dormant Commerce Clause.