Quantcast

Should the First Amendment Protect the Marketing of Junk Foods to Kids?

Food Politics

By Marion Nestle

For some time now, I’ve been arguing that legal scholars ought to be challenging the contention of food corporations that the First Amendment gives them the right to market foods any way they like, even to kids.

I simply cannot believe that the founding fathers of the U.S. intended the First Amendment for this purpose.

In December 2010, I urged public interest lawyers to examine current food marketing practices in the light of the First Amendment. I am pleased to see that they are now doing so.

Samantha Graff of the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) forwards two co-authored articles published this month:

Health AffairsGovernment Can Regulate Food Advertising to Children Because Cognitive Research Shows It Is Inherently Misleading, by Samantha Graff, Dale Kunkel, and Seth E. Mermin.

The childhood obesity crisis has prompted repeated calls for government action to curb the marketing of unhealthy food to children. Food and entertainment industry groups have asserted that the First Amendment prohibits such regulation.

However, case law establishes that the First Amendment does not protect “inherently misleading” commercial speech. Cognitive research indicates that young children cannot effectively recognize the persuasive intent of advertising or apply the critical evaluation required to comprehend commercial messages.

Given this combination—that government can prohibit “inherently misleading” advertising and that children cannot adequately understand commercial messages—advertising to children younger than age twelve should be considered beyond the scope of constitutional protection.

American Journal of Public Health: Protecting Young People from Junk Food Advertising: Implications of Psychological Research for First Amendment Law, by Jennifer L. Harris and Samantha K. Graff.

In the United States, one third of children and adolescents are overweight or obese, yet food and beverage companies continue to target them with advertising for products that contribute to this obesity crisis.

When government restrictions on such advertising are proposed, the constitutional commercial speech doctrine is often invoked as a barrier to action. We explore incongruities between the legal justifications for the commercial speech doctrine and the psychological research on how food advertising affects young people.

These papers are a great start to the conversation, as was a previous contribution from these authors: A Legal Primer for the Obesity Prevention Movemen, American Journal of Public Health, 2009.

First Amendment scholars—weigh in, please.

And while pondering these questions, take a look at Raj Patel’s piece in The Atlantic, Abolish the food industry. In his view, the First Amendment issue is a no brainer:

I side with the American Psychological Association in thinking that advertising to children is unconscionable. Rather than dwell on the First Amendment issue, which strikes me as an easy case to make, I think it’s worth addressing a deeper question underlying the San Francisco cigarette-in-pharmacy ban—Why allow an industry that profits from the sale of unhealthy food at all?

For more information, click here.

EcoWatch Daily Newsletter

Actress Jane Fonda (C) and actor Sam Waterston (L) participate in a protest in front of the U.S. Capitol during a "Fire Drill Fridays" climate change protest and rally on Capitol Hill, Oct. 18. Mark Wilson / Getty Images News

It appears Jane Fonda is good for her word. The actress and political activist said she would hold demonstrations on Capitol Hill every Friday through January to demand action on the climate crisis. Sure enough, Fonda was arrested for demonstrating a second Friday in a row Oct. 18, according to The Hollywood Reporter. Only this time, her Grace and Frankie co-star Sam Waterston joined her.

Read More Show Less
Visitors look at the Aletsch glacier above Bettmeralp, in the Swiss Alps, on Oct. 1. The mighty Aletsch — the largest glacier in the Alps — could completely disappear by the end of this century if nothing is done to rein in climate change, a study showed on Sept. 12. FABRICE COFFRINI / AFP via Getty Images

Switzerland's two Green parties made historic gains in the country's parliamentary elections Sunday, according to projections based on preliminary results reported by The New York Times.

Read More Show Less
Sponsored
A mural in Richwood, West Virginia, a once booming Appalachia coal town, honors the community's history. Jeff Greenberg / Universal Images Group / Getty Images

By Jeff Turrentine

The coal industry is dying. But we can't allow the communities that have been dependent on coal to die along with it.

Read More Show Less
ThitareeSarmkasat / iStock / Getty Images

by Jillian Kubala, MS, RD

Every fruit lover has their go-to favorites. Bananas, apples, and melons are popular choices worldwide and can be purchased almost anywhere.

Read More Show Less
belchonock / iStock / Getty Images Plus

By Hrefna Palsdottir, MS

Coconut oil is an incredibly healthy fat.

Read More Show Less
Sponsored
Wesley Martinez Da Costa / EyeEm / Getty Images

By David R. Montgomery

Would it sound too good to be true if I was to say that there was a simple, profitable and underused agricultural method to help feed everybody, cool the planet, and revitalize rural America? I used to think so, until I started visiting farmers who are restoring fertility to their land, stashing a lot of carbon in their soil, and returning healthy profitability to family farms. Now I've come to see how restoring soil health would prove as good for farmers and rural economies as it would for the environment.

Read More Show Less
skaman306 / Moment / Getty Images

By Jillian Kubala, MS, RD

Radish (Raphanus sativus) is a cruciferous vegetable that originated in Asia and Europe (1Trusted Source).

Read More Show Less
Tinnakorn Jorruang / iStock / Getty Images

By Dan Nosowitz

The budding research on cannabidiol, or CBD, attracts a great deal of interest in the agricultural field.

Read More Show Less