Campaigns to Ban Food Marketing are a Dead End: Supreme Court

September 4th, 2015 by MorganDowney Leave a reply »

Regulating food companies marketing to children has had a mantra-like appeal to advocates of reductions in childhood obesity. In 2004, Congress directed the Centers for Disease Control and Prevention to examine the role of food marketing in the development of childhood obesity. The result was a thorough report from the Institute of Medicine in 2006,  Food Marketing to Children and Youth: Threat or Opportunity.

Subsequently, advocates began to talk about specific restrictions. Dr. Marion Nestle, for example, proposed restrictions or bans on the use of cartoon characters, celebrity endorsements, health claims on food packages, stealth marketing  and marketing in schools. Dr. Nestle held up some 50 other nations that restricted food marketing to children, “Although such actions have not eliminated childhood obesity-rates in these countries are increasing, although they remain lower than the US rate- they may help to slow current trends”.

While the experience of other countries is informative, the United States has different legal principles. Of particular relevance is the evolving jurisprudence around the First Amendment and its application to commercial speech. Over several decisions, the Supreme Court has expanded First Amendment protections for corporations whose speech (read marketing) comes under governmental regulation. This summer the Supreme Court has expanded the scope of this protection. This has raised a host of issues surrounding the future of governmental restrictions on corporate speech.

The case, Reed v. Town of Gilbert Arizona,  involved a code regulating signs put up in the township according to content, size and time restrictions. A case challenging the code was brought by a church who used lawn signs to indicate where their services were being held. The code was struck down by all nine judges, although there were different rationales from different judges.

The majority of the justices agreed with Justice Clarence opinion. Under his analysis, the First Amendment applies to the states, including municipal governments. Content-based speech, which is based on its communicative content, i.e. the topic discussed or the idea or message expressed , is presumptively unconstitutional and may only be justified if the government can prove that they are narrowly tailored to serve compelling state interests. When the town of Gilbert argued that such restrictions are needed for public safety, the Court rejected the argument that signs of ideological content were different, in terms of public safety, than are temporary signs. This is the problem of the over-inclusiveness and under-inclusiveness in such First Amendment cases. (For more information on this component, see my post on the proposed New York City ban on large soda cup sizes.)

Justice Breyer, who concurred in the Court’s opinion, opined that content-based speech regulation by the government should not always require the strict scrutiny. Breyer observed, “virtually  all governmental activities involve speech, many of which involve the regulation of speech”.  “And,” Justice Breyer added, “to hold that such content discrimination triggers strict scrutiny is to write a recipe for judicial management of ordinary government regulatory activity.” He offered several examples: securities disclosure regulation, energy conservation labeling, advertising prescription drugs, the confidentiality of patients’ medical data, commercial airplane safety briefings, and, even requiring petting zoos post signs recommending handwashing on exiting the zoo. He might have added  the nutrition label, as well.

It is also worthwhile to review what Chief Justice John Roberts had to say, as obiter dicta, on hypothetical regulation for the purpose of obesity prevention, in the landmark ruling upholding the Affordable Care Act.

Bottom line: efforts to restrict food advertising to children are bound to fail without much more compelling evidence of a causal and exclusive relationship to the development of mortality and morbidity as adults, than we now have. Proposed restrictions, like those proposed by Dr. Nestle, would certainly be struck  down by the courts. But, the issue would not even get that far. The regulatory work would have to be carried out by the Federal Trade Commission and the Food and Drug Administration. Congress would surely yank their funding for such efforts if they proposed such regulations. It is time for those of us who want to slow the rise in childhood obesity rates, as well as in adult rates, to realize the approach of regulating food marketing is a dead end.