Constitutional Barriers to Legislating Restrictions on Food Marketing to Children

Empirical evidence strongly indicates that food and beverage marketing influences children's eating habits and that children have a limited ability to understand the persuasive intent of advertising. Makers of obesogenic foods and beverages have wide latitude, under the existing legislative and regulatory scheme in the U.S., to advertise and promote their products to children. Avenues of marketing include television commercials, radio commercials, print-press advertisements, outdoor advertisements, in-school marketing, product placement, branded toys and links to other products, internet advertisements and promotional activities, video-game advertising, point-of-purchase promotions, sponsorship, celebrity endorsements, character licensing, packaging and labeling, viral marketing, and cell phone text messaging. It is often assumed that all such marketing practices constitute “commercial speech” protected by the First Amendment, but this is not necessarily the case. Under the prevailing test of the constitutionality of commercial speech restrictions articulated by the Supreme Court, some avenues for legislative restrictions on food marketing to children remain open. This presentation will explore the boundaries and reach of First Amendment protection in this area, examining whether food marketing to children constitutes misleading or deceptive speech, what public health evidence is needed to restrict such speech, what types of restrictions are most and least likely to pass constitutional muster, and the differences between regulating speech and regulating conduct.