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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 Affairs: Government 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?
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By Michele Simon
Given all the defeats and set-backs this year due to powerful food industry lobbying, the good food movement should by now be collectively shouting—I am mad as hell and I’m not going to take it anymore.
If you feel that way, I have two words of advice—get political.
I don’t mean to ignore the very real successes—increases in farmers markets, innovative and inspiring programs such as Food Corps, and an increasingly diverse food justice movement, just to name a few. But lately, at least when it comes to kids' and junk food, we’ve been getting our butts kicked.
And it’s not just because corporations have more money to lobby—of course they do. It’s that too often, we’re not even in the game. Or, we tend to give up too easily. While I know many food justice advocates who understand this is a political fight over control of the food system, sadly I cannot say the same thing about some of my public health colleagues. Too many nonprofits, foundations and professionals are playing it safe, afraid to take on the harder fights.
A politician from Maine I interviewed for my book was complaining to me about how food industry lobbyists were in his state capital every single day, while public health sent the occasional volunteer. His sage advice to us advocates—“You may be out-gunned, but you have to bring a gun.”
Moreover, many groups have shown that you don’t always even need a bigger gun. The small but impressive organization, Campaign for a Commercial-Free Childhood, proved that this summer when it won an important victory against Scholastic regarding its corporate-sponsored materials. How did they do it? A combination of smart campaigning and effective media. Not by playing nice.
Many public health folks I know are more comfortable with research and data than politics and lobbying. But if we are to make real progress, that has to change. Back in May, after a series of defeats, my colleague Nancy Huehnergarth wrote a great call-to-action. She noted how public health advocates and its funders are “very genteel” and that when industry lobbying beats us back, advocates just want more science, believing that the new data “will finally convince policymakers and the public to take action.” But it doesn’t work that way, as she explains:
The reality is that when going up against deep-pocketed, no-holds barred opponents like Big Food, Big Beverage and Big Agriculture, public health’s focus on science and evidence is easily trumped by money and messaging. If public health advocates don’t start rolling up their sleeves and using some of the same tactics used by industry, progress in this fight to create a safe, healthy, sustainable food system is going to move very slowly.
Now for some good news. We are already seeing positive signs that indeed, the food movement is getting more political. Recent defeats are helping to mobilize people even more, as folks realize the food industry is not playing nice, so we can’t either. Here then, are just a few signs of hope for 2012:
1) The growing political movement opposing genetically-engineered foods, which includes a huge Just Label It campaign with an impressive list of supporters. Stay tuned also for the 2012 ballot initiative in California to label GMOs.
2) Powerful nonprofit organizations (who don’t shy away from politics) getting involved for the first time in nutrition policy. For example, the Environmental Working Group’s (EWG) recent report on sugary cereals called out the utter failure of Big Food’s voluntary nutrition guidelines on marketing to children. Given EWG’s one million-plus supporters, I can’t wait to see where they go with this issue in 2012.
3) Increasing coverage in mainstream media that food industry marketing (and not just personal responsibility) bears much of the blame for the nation’s public health crisis. Examples include a front page story in a recent Sunday edition of the San Francisco Chronicle and Mark Bittman’s weekly Opinionator column in the New York Times, which is consistently smart and hard-hitting.
4) Speaking of media, as traditional investigative journalism outlets have become more scarce, a new breed of reporters may be born from an innovative project just launched in November—Food and Environmental Reporting Network. Its mission is to “produce investigative journalism on the subjects of food, agriculture, and environmental health in partnership with local and national media outlets.” Judging from its first in-depth report on dairy CAFOs (concentrated animal feeding operations) in New Mexico, I am looking forward to more in 2012.
5) Finally, the Occupy movement, while still very young, has already inspired a number of food politics offshoots. As I wrote after Food Day, several others have penned calls to action showing the deep connections between corporate control of the food supply and economic injustice. (If you read just one, Tom Philpott’s Foodies, Get Thee to Occupy Wall Street should convince you.) Also, the amazing grassroots organization Food Democracy Now (based in Iowa) recently organized an “Occupy Wall Street Farmers’ March” to bring the message that family farmers are also the 99 percent. (Read organizer Dave Murphy’s moving account of the successful event and watch the videos of the passionate speakers.)
There are many other amazing groups, farmers and eaters organizing all over the country (and the world) to take back our food supply from corporate profiteers. We’ve got plenty of challenges ahead, with the farm bill up for renewal and more school food nutrition standards to fight for, just for starters. I am hopeful that next year we will see the food movement get even more political. I just hope I can also say, by the end of 2012, that it was the year more of my public health colleagues joined in.
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