Children and the First Amendment: Regulating marketers' conduct in retail establishments

The First Amendment's protection of “commercial speech” presents a challenge to public health regulations that seek to limit product advertising. The Supreme Court's decision in Lorillard Tobacco Co. v. Reilly (2001) confirmed that many restrictions on advertising and other forms of commercial speech will not survive judicial scrutiny. The Lorillard opinion left room, however, for government measures that may implicate the First Amendment less directly. For example, public health advocates have recently proposed a variety of measures aimed at aspects of junk-food marketing other than advertising, including (1) requiring high-sugar cereals and other unhealthful food to be placed on top shelves, or in specially marked aisles, in grocery and convenience stores, (2) prohibiting candy and other unhealthful food in supermarket checkout lines, and (3) barring fast food restaurants from giving away toys with unhealthful kids' meals. These and other potential government restrictions address not speech but conduct that may have a communicative component. To the degree that they implicate the First Amendment at all, they would be reviewed under the standard established in United States v O'Brien (1968), a test that over time has become less stringent than that for restrictions on commercial speech. This presentation will analyze the constitutionality under the First Amendment of these and other proposed measures designed to regulate the marketing of junk food.