Possibilities for Restricting Junk Food Marketing in Schools

Across the country, there is a growing movement to urge public school districts to limit junk food marketing on campus. Studies and common sense point to the powerful influence schools have on students' eating habits. Therefore, the ubiquity on public school campuses of candy, fast food, and soda—and of advertisements promoting their consumption—is very concerning to many stakeholders. A public school district that wants to restrict junk food marketing in its schools may be inhibited not only by monetary and political pressures but also by legal questions relating to the First Amendment. This presentation begins by noting that the First Amendment treats advertising as a form of protected speech. Next, it describes two avenues a school district might take that should not trigger First Amendment scrutiny at all: drafting individual vendor contracts that limit certain sales and advertising practices; and implementing a policy that bans certain food products without regulating advertising. The presentation then distinguishes between two First Amendment standards of review that a court could apply to a school district policy that does ban certain advertising—the commercial speech test and a forum analysis—and argues that the latter is the proper approach. The presentation concludes that the First Amendment gives a public school district considerable leeway to curb advertising to its students but cautions against two types of policies: those forbidding advertisements for food products that are allowed to be sold on campus; and those prohibiting students from wearing, carrying, or discussing materials promoting junk food.