SR-09-08-2015-3J
City Council
Report
City Council Regular Meeting: September 8, 2015
Agenda Item: 3.J
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To: Mayor and City Council
From: Dean Kubani, Sustainability Manager, Office of Sustainability and the
Environment
Subject: Reject Fuel Pump Labelling Requirement
Recommended Action
Staff recommends that City Council receive and file this report to not require labelling of
commercial fuel pumps with a climate change message.
Executive Summary
Following Council direction staff evaluated the feasibility of requiring the labelling of
retail petroleum fuel pumps with a message explaining the connection between fossil
fuel consumption and climate change in an effort to reduce fuel use by consumers.
Staff determined that the requirement would require ongoing staff and funding
resources to implement, would be subject to legal risk, and would likely have very
limited impact at influencing desired behavior changes.
Staff does not recommend that Council consider adoption of an ordinance requiring
labelling of commercial fuel pumps with a climate change message. Staff will return to
Council early 2016 with a proposal for a comprehensive mid-range and long-range
Climate Action Plan that will present an integrated approach to achieving community -
wide reductions in greenhouse gas emissions, including those related to automobile fuel
use, to achieve Council-adopted emission reduction goals.
Background
On November 25, 2014 Council directed staff to explore an ordinance requiring the
labelling of retail petroleum fuel pumps with a message explaining the connection
between fossil fuel consumption and climate change, and return to Council with
recommendations and an evaluation of legal risk.
Similar Actions by Other Cities
On March 11, 2014 the Berkeley, CA City Council referred a Council-member’s
proposal for a draft ordinance requiring “climate-conscious warning labels be posted on
gas pumps” to the City Manager and advisory commissions for evaluation. In response
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to the proposed ordinance the City of Berkeley received a letter from the Western
States Petroleum Association (WSPA) dated June 11, 2014 expressing the opinion that
such an ordinance, if adopted, would “compel speech in violation of the First
Amendment of the United States Constitution.” A copy of the WSPA letter is included as
Attachment B.
On November 18, 2014 following review of the proposal by Berkeley’s Community
Environmental Advisory Commission and the Berkeley Energy Commission the
Berkeley City Council directed the City Manager to prepare an ordinance requiring the
labelling of fuel pumps. By making a specific link between the consumption of f ossil fuel
and climate change at the point of sale, the Berkeley City Council intended to promote
behavior changes “to reduce motorized vehicle use, thus contributing to helping to
accomplish the Berkeley Climate Action Plan (CAP) goals and helping to miti gate
impacts on climate.” A draft ordinance was approved by the Berkeley Energy
Commission on January 28, 2015 and by the Community Environmental Advisory
Commission on February 12, 2015 and referred to the Berkeley City Council for
adoption. The Berkeley City Council has taken no further action to date regarding the
proposed ordinance.
On November 25, 2014 the San Francisco Commission on the Environment discussed
a proposal for a similar fuel pump labelling ordinance and directed staff to draft a letter
of support for “the intent of the ordinance” to the San Francisco Board of Supervisors.
The City of San Francisco Board of Supervisors has taken no further action to date
regarding the proposed ordinance.
Discussion
The impetus for the fuel pump labelling ordinance proposals in Berkeley and San
Francisco came from 350BayArea.org, a grassroots organization based in Oakland, CA
advocating for deep cuts in greenhouse gas emissions. Their “Beyond the Pump”
labelling ordinance proposal would require gas stations to install warning labels on
gasoline nozzles to remind consumers when fueling their vehicles that the use of
petroleum fuels contributes to climate change. 350BayArea.org believes that this
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approach would be effective at changing consumer behavior and reducing fuel use.
The City of Santa Monica has attempted point-of-sale messaging focused on consumer
behavior change in the past and found it to be expensive, staff intensive , and minimally
effective in changing consumer behavior. To raise consumer awareness about the
environmental and economic impacts of using products containing hazardous
ingredients, and to encourage consumers to choose less hazardous alternatives, City
Council approved the Toxic and Hazardous Household Products Labelling Ordinance in
1994. The ordinance required retailers to place signs on store shelves containing toxic
or hazardous substances for sale, including automotive products, paint products,
garden products and pool or spa maintenance chemicals. The adoption of this
ordinance was met with significant resistance by the California Grocers Association and
local retail store owners, and required substantial effort on the part of City staff to launch
and implement. Staff conducted a telephone survey and series of focus groups in 1996
to evaluate the effectiveness of the ordinance which indicated that it had little to no
awareness in the community and/or impact in influencing purchasing decisions. Based
on this information the point-of-sale messaging materials were redesigned, however
subsequent evaluations indicated that the program was minimally effective at
influencing the desired behavior change. Rigorous implementation and enforcement of
the ordinance was discontinued in 2004.
One common denominator of effective behavior change campaigns is that the campaign
provide a clear and readily available alternative to the action that is being discouraged,
and that the campaign be multi-faceted, with advertising in a variety of media and
locations, opportunities for consumers to make personal commitments to modify their
behavior, incorporation of social norming approaches, and incorporation of incentives
and/or disincentives. While effective, these approaches require significant and ongoing
staff and funding resources to implement. Requiring a label on a fuel pump
discouraging the use of the fuel does not provide the person fueling their vehicle with an
alternative action that they can easily take at that time. Also, because it would not
include the numerous other components required of an effective behavior change effort
staff believes that such an ordinance would likely have very limited impact at influencing
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the desired behavior.
Potential Legal Risk
Any local law that requires private parties to place labels on their retail p etroleum fuel
pumps with a message explaining the connection between fossil fuel consumption and
climate change would certainly implicate rights protected by the First Amendment and
could present legal risks. The United States Supreme Court has long concluded that
commercial speech is entitled to First Amendment protections, albeit to a somewhat
lesser degree than the protection afforded to noncommercial speech. U.S. v. United
Foods, Inc., 533 US 405 (2001).
When the government compels a private party to speak, courts apply differing standards
of review depending upon the subject of the speech being compelled. Courts are much
more likely to uphold governmental regulation compelling speech, if the regulation and
the speech being compelled is aimed squarely at disclosing “factual and uncontroversial
information” or combating false and deceptive advertisements. On the other hand, if the
government compels private parties to carry the government’s “controversial opinions,”
such as the government’s view on politics, nationalism, or religion, courts are likely to
apply much greater scrutiny.
For instance, the Ninth Circuit Court invalidated a California State law (AB 1179), which
required each “violent video game” imported into or distributed in California t o “be
labeled with a solid white '18' outlined in black,” which must appear on the front face of
the game's package and be “no less than 2 inches by 2 inches” in size. The Court
found this compelled speech requirement to violate the First Amendment, becau se it is
not designed to convey purely factual information or combat consumer deception. Video
Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).
Additionally, the District of Columbia Circuit Court recently struck down FDA regulations
which required cigarette makers to include color graphics on cigarette packages
depicting the negative health effects of smoking, because the court found such graphics
to not present purely factual and uncontroversial information and because there was no
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evidence that the graphics would directly and significantly lead to a reduction in
smoking. R.J. Reynolds Tobacco Co. v. Food and Drug Admin., 696 F.3d 1205 (D.C.
Cir. 2012).
Legal staff is not aware of a published federal appellate decision addressin g
greenhouse gas labelling. Due to the complexities of First Amendment jurisprudence, it
is always difficult to predict with certainty how a court would rule in any given case.
However, given the strong inclination of many courts to protect First Amendment rights,
even in the commercial speech context, any ordinance that compels a private business
to engage in speech activities would be subject to legal risk.
For the reasons noted above regarding the likely limited efficacy of the proposed
ordinance and the potential legal risk, staff does not recommend that Council consider
adoption of an ordinance requiring labelling of commercial fuel pumps with a climate
change message. Staff plan to return to Council in early 2016 with a final report on the
15x15 Climate Action Plan achievements and a proposal for a comprehensive mid-
range and long-range Climate Action Plan that will present an integrated approach to
achieving community-wide reductions in greenhouse gas emissions, including those
related to automobile fuel use, to achieve Council-adopted emission reduction goals.
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Financial Impacts and Budget Actions
There is no immediate financial impact or budget action necessary as a result of the
recommended action.
Prepared By: Dean Kubani, Sustainability Manager
Approved
Forwarded to Council
Attachments:
A. November 25, 2014 City Council Minutes (web link)
B. Attachment B - WSPA Letter to Berkeley re Fuel Pump Labelling