Posts Tagged ‘Supreme Court’

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

September 4th, 2015

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.


NYC Ban on Beverage Cups Crushed

June 27th, 2014

The New York State Court of Appeals has affirmed lower court decisions banning the sale of sugar sweetened beverages in cups over 16 ounces capacity. The Court of Appeals decision, as was the case in the lower courts, focused on the power of the New York City Board of Health to make several policy decisions in this area when the New York City Council and the New York State Legislature had not acted in this area.

Predictably, some activists pointed to the money employed to fight the City’s regulation. They miss the point. This regulation was bad policy at the outset. Those who think obesity is the result of “One Thing” are always disappointed when it turns out that changing the “One Thing” does not affect the accumulation of excess body fat. In addition, the regulation had numerous inconsistencies. It suffered from “over-inclusion” because it affected everyone buying a beverage in New York City and from “under-inclusive” in that other beverages of same or greater caloric content were not covered.

No doubt those who believe in the value of restricting marketing of food items will be back at work trying to find a way to work around  this decision. These advocates need to keep in mind that the Supreme Court (and other courts) have set a very high bar on legislative restrictions on marketing. These cases are based on First Amendment  (which was not even touched in the New York City case) to arbitrary restrictions on commercial practices. Restricting or banning advertising of food to children is a frequent mantra in prevention-of-obesity circles. The Supreme Court is pretty clear that such restrictions are not likely to be upheld.


The Supreme Court and the Future of Obesity Policies

February 5th, 2013

Obesity issues rarely get to the Supreme Court. Obesity advocates spend little time discussing the legality of proposed strategies, at the federal or state level. But two recent Supreme Court decisions, one well known, the other less so, may set the parameters of public policy approaches to the obesity epidemic.

The constitutionality of the Affordable Care Act’s (ACA) requirement that individuals purchase health insurance was challenged in National Federation of Independent Businesses v. Sebelius. The Supreme Court, in a narrow 5-4 decision upheld the law on June 28, 2012. (See NFIB v. Sebelius 567 US __(2012) 132 S.Ct. 2566.)

Why the Court upheld the ACA is important. The US Constitution gives Congress specified “powers.” Congress does have “police powers,” which the states have. Police powers are very broad, while Congress’s authority must be based on enumerated powers.

Chief Justice John Roberts, writing for the majority found that the ACA individual mandate was constitutional based on the taxation power of Congress. The majority of the Supreme Court found that the individual mandate was not within Congress’s power to regulate interstate commerce nor was it authorized under the Necessary and Proper Clause.

Chief Justice John Roberts addressed how far Congress can go in regulating individual behavior and used obesity as a metaphor:

The individual mandate (to purchase health insurance), however, does not regulate existing commercial activity. It instead compels individ­uals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Con­gress to regulate individuals precisely because they are doing nothing would open a new and potentially vast do­main to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by  pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory – empower to do it.

Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him. …

Indeed, the Government’s logic would justify a manda­tory purchase to solve almost any problem. (Citation omitted). To consider a different example in the health care market, many Americans do not eat a balanced diet. That group makes up a larger percentage of the total population than those without health insurance. See, e.g., Dept. of Agriculture and Dept. of Health and Human Services, Dietary Guide­lines for Americans 1 (2010). The failure of that group to have a healthy diet increases health care costs, to a greater extent than the failure of the uninsured to pur­chase insurance. See, e.g., Finkelstein, Trogdon, Cohen, & Dietz, Annual Medical Spending Attributable to Obesity: Payer- and Service-Specific Estimates, 28 Health Affairs w822 (2009) (detailing the “undeniable link between ris­ing rates of obesity and rising medical spending,” and esti­mating that “the annual medical burden of obesity has risen to almost 10 percent of all medical spending and could amount to $147 billion per year in 2008”). Those in­creased costs are borne in part by other Americans who must pay more, just as the uninsured shift costs to the insured. See Center for Applied Ethics, Voluntary Health Risks: Who Should Pay?, 6 Issues in Ethics 6 (1993) (not­ing “overwhelming evidence that individuals with un­healthy habits pay only a fraction of the costs associated with their behaviors; most of the expense is borne by the rest of society in the form of higher insurance premiums, government expenditures for health care, and disability benefits”). Congress addressed the insurance problem by ordering everyone to buy insurance. Under the Government’s theory, Congress could address the diet problem by ordering everyone to buy vegetables. See Dietary Guidelines, supra, at 19 (“Improved nutrition, appropriate eating behaviors, and increased physical activity have tremendous potential to . . . reduce health care costs”).

People, for reasons of their own, often fail to do things that would be good for them or good for society. Those failures—joined with the similar failures of others—can readily have a substantial effect on interstate commerce. Under the Government’s logic, that authorizes Congress to use its commerce power to compel citizens to act as the Government would have them act.  That is not the country the Framers of our Constitution envisioned.

The Framers gave Congress the power to regulate com­merce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this un­derstanding. There is no reason to depart from that un­derstanding now.

Clearly, it would be unconstitutional for Congress to require individuals to reach specific biometric targets or spend time in specific activities, like nutrition classes, or purchasing specific foods pursuant to a dietary intervention program or spending time in non-voluntary physical exercise under substantial penalty for non-compliance. (I addressed whether the proposed HIPAA regulations on employer mandated wellness programs whether Congress can incentivize employers to do indirectly what it cannot do directly.)

The second, less well known case is Brown v. Entertainment Merchants Association, (131 St.C. 2729, 2011, 564 U.S. 08-1448). In this case, a California law was challenged which restricted the sale or rental of violent video games to minors. The Court found that video games were protected by the First Amendment’s Freedom of Speech clause and permanently enjoined the statute. The case was decided on a vote of 7 to 2. Justice Scalia wrote the opinion for the majority.

The Court said that there were narrow exceptions to the First Amendment’s protections, such as obscenity, incitement and fighting words. It said that the state, no matter how concerned about a problem, could not create a new exception and then punish it. They found the claim that watching violent video games can lead to violent behavior “unpersuasive.” The majority said that the law has to pass “strict scrutiny,” i.e. California must demonstrate a compelling state interest and that law is “narrowly drawn” to service that interest. In other words, the law must not be under-inclusive or over-inclusive.

The Court did not find California had a compelling state interest because it had not established “a direct causal link between violent games  and harm to minors”. Instead, California had argued that the state legislature can make a “predictive judgment that such a link exists based on competing psychological studies”. The studies in question only produced correlations and had significant flaws in methodology. Even if the effects of the games on minors were shown, the opinion states, “those effects are both small and indistinguishable from effects produced by other media. Here, the Court found the California law suffered from “under-inclusiveness” because it disfavored distributors of video games “at least when compared to booksellers, cartoonists, and movie producers – and has given no persuasive reasons why.”

The Court also found the statute to be gravely “under-inclusive” because the law allows the video games in the hands of children as long as one parent (or relative) approves and there is no system to verify the parent-child relationship. The Court noted that there existed a voluntary rating system to help parental control.

The Court goes on to describe the law as “overinclusive”. The opinion states, “Not all of the children who are forbidden to purchase video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted actually want, its entire effect is only in support of what the State thinks parent ought to want…And, as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreath in achieving the other.”

In his dissent, Justice Stephen Breyer argued that there were conflicting studies on the effect of violent video games on children, “I, like most judges, lack the social science expertise to say who definitively who is right associations of public health professionals who do possess that expertise that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm.” He went on to cite positions of the American Academy of Pediatrics, the American Academy of Child and Adolescent psychiatry, the American Psychological Association, the American Medical Association, etc. No other justice joined in Justice Breyer’s dissent.

Now, this is not a law journal article or a brief in a court case. But there are a number of public policies under discussion which need to be rigorously evaluated by the decisions discussed above.

For example, the pursuit of regulation of food advertising directed at children has direct relevance to the Brown decision. The Breyer dissent is eerily prescient on the type of evidence that might be presented in a case involving obesity. Advocates of restricting food advertising to children need to critically weigh how policy proposals can escape being overturned on First Amendment grounds.

Or take the recently enacted ban on the sale of sugar-sweetened beverages in cups of 16 ounces or more in New York City. Now, some will argue that the sale of beverages is not a Freedom of Speech case. I won’t disagree with that. However, I do think that clever lawyers may find a way around this. For example, the New York City regulation only applies to restaurants, fast-food franchises, movie theaters, stadiums and street carts. Excluded are grocery stores, convenience stores, 7-Eleven stores, and corner markets, and gas stations. This may set up a kind of ‘reverse First Amendment’ case (I just made that up) where a fast-food franchise is under the restriction but the 7-Eleven next door can freely advertise it sells the banned combination of beverage and cup size.  I think a number of lawyers and citizens who follow these cases were surprised that the Supreme Court pulled violent video games into the same category with books, plays, and other forms of speech. A future case could give the Supreme Court the opportunity to extend the protection of commercial speech to restrictions on the sale (and advertising thereof) of a combination of legal products, namely, cup sizes and one category of beverage.

Even if the New York City ban on sugar-sweetened beverages in particular cup sizes were not considered a First Amendment case, the law would still have to meet the test that under the Equal Protection clause, laws must be reasonable and not arbitrary or capricious. So, under the New York City regulation some commercial outlets are under the ban. A fast-food outlet cannot stock cups of the prohibited size, but the 7-Eleven across the street can. Pizzas, candy, chips, cookies and numerous other high-calorie, low-nutritional-value can be sold in the regulated sites. High calorie beverages such as alcoholic beverages, beer, milkshakes, lattes, and frappuccinos can be sold. Refills of 12-ounce sugar sweetened beverage can be provided free of charge, even in regulated outlets. Outlets under the ban which have self-service counters cannot stock cups over 16 ounces, even if the consumer were using it for water or non-caloric beverages. While these seem like comprises, a court could well find them arbitrary and capricious, indicated a lack of commitment by the City to reducing obesity, the purported purpose of the regulation. The regulation affects all consumers, those who are overweight or obese but who will not develop serious, adverse health effects. It regulates one source of calories, and not others.

The decision in NFIB v. Sebelius is likely to have long-term impact on future obesity-related federal legislation and regulation. There are several federal statutes which may have difficulty meeting the test in the Robert’s decision. Lawyers will consider what Roberts said about obesity as ‘dicta’. ‘Dicta’ means that the comment was not necessary for the decision and not necessarily a precedent for future cases. Nevertheless, reliance on the taxation power of Congress can seriously constrain the range of Congressional action.

Bottom line: A majority of the Supreme Court are very diligent in scrutinizing federal and state laws affecting behavioral changes in the population. While this may change with future appointments to the Court, it should be noted that the Brown case was a 7-2 decision and not a single justice joined in Breyer’s dissent.

Future public policies relating to obesity need to be developed in recognition of this heightened degree of constitutional scrutiny.


What is the Supreme Court Up to?

November 20th, 2011

This week the Supreme Court agreed to hear a legal challenge to the Affordable Care Act (ACA), President Obama’s signature health care reform legislation. The issues around the “individual mandate” have been well discussed. Timothy Jost, professor of law at William and Mary University School of Law and an insightful thinker on health care law. In a new post, he points to two critical issues in the Supreme Court’s review which are now below the radar but could become extremely compelling. The first is that the Supreme Court added review of the ACA’s expansion of Medicaid. This is not only a key channel for expanding health care coverage but the theory of the challenge, namely that Congress can use its spending power to unconstitutionally coerce states into certain programs. Such use of the spending power is common throughout many government programs. Overturning or even questioning the use of the spending power in this way could raise challenges to a host of federal programs.

The other issue is a more technical, legal issue of severability. Briefly, severability raises the question that, if the individual mandate (or any specific provision) is declared unconstitutional, does the rest of the law remain in place or is the entire statute voided. The Supreme Court has reserved specific time for arguments on both issues. High Court To Review ACA’s Minimum Coverage Requirement, Medicaid Expansion – Health Affairs Blog