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TRANSCRIPT
The First Amendment and Restricting Food Marketing to Children
AcademyHealthWashington DC, June 2008
Jennifer L. Pomeranz, JD, MPHDirector of Legal Initiatives
Overview
First Amendment’s Protection of Commercial Speech
Compelled Speech Government Speech Regulation of Industry Conduct Regulation of Consumer Conduct
The First Amendment Protects Commercial Speech
“expression related solely to the economic
interests of the speaker and its audience”
“the proposal of a commercial transaction”
Lorillard Tobacco case Applied the Central Hudson test for
restrictions on commercial speech
Struck down advertising ban 1,000 ft from school or playground
Struck down 5 ft height restriction
Upheld requirement that tobacco products be accessible only to sales staff to prevent minors’ access
The First Amendment
Restricting Speech is Difficult
Compelling Speech is Preferred
Compelling Commercial Speech
Nutrition Facts Panel Menu Labeling Warning Labels or Messages Product Placement Disclosures Quick Reference Nutrition Panels
HIGH IN SUGAR
HIGH INSUGAR
Excess Sugar in the Diethas been Linked to an Increased
Risk for Obesity
This is product placement
Government Speech
“speech and other expression [used] to advocate and defend its own policies"
General taxes or targeted assessments can be used for government speech “whether or not the reasonable viewer would identify the speech as the government's.”
CDC, USDA, NCI
USDA
Regulate Industry Conduct
Zoning Regulate product location in stores Ingredient bans or caps Tax manufacturers to encourage
reformulation Set Daily Value figures for added sugar
Regulate Consumer Conduct
Age requirements to purchase items Per-capita limits on purchases Taxing products to discourage
consumption Ban the sale of products in government
places like schools, hospitals, military
Real Change
Requires
Real Change
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