Red herrings or real threat? First Amendment challenges to emerging marketing restrictions to prevent childhood obesity

As the country has started to embrace the enactment of strong policies and laws to prevent and control obesity, we are moving towards more nuanced legislation and regulation in the field. Industry will continue to fight against increased government involvement and continue to use the First Amendment as a platform to argue that innovative laws are unconstitutional. As we move away from standard advertising restrictions, emerging policies may either have real First Amendment implications that may not be immediately apparent to the public health community, or the industry may use the First Amendment as a red-herring argument, which needs exposing. Examples of new and innovative policies include restricting and compelling front of package labeling and health claims and restricting the distribution of free samples of products. Food and beverage companies claim that such practices constitute “commercial speech” protected by the First Amendment, but this is not necessarily accurate. I will analyze these and other emerging policies under the First Amendment to advise public health practitioners, advocates, policymakers and government officials how to draft laws without offending the First Amendment. This presentation will explore the boundaries and reach of First Amendment protection in this area, examining which types of restrictions are most and least likely to pass constitutional muster, and explain the difference between regulating speech and regulating conduct.