First Amendment Doesn’t Apply to Junk Food Marketing

Every year food and soft drink marketers spend billions of dollars tempting children with junk, fueling an obesity crisis that’s already reached epidemic proportions.

Why aren’t policymakers stepping in to help protect our kids? In part because food and media companies are successfully using the First Amendment as a shield.

But new research paves the way for government to take action to protect children from junk food marketing, building a strong case to establish that much of this advertising falls outside the scope of First Amendment protection.

The controversy over whether government has the right to regulate food marketing to kids came to a head last summer, after a group of federal agencies proposed a set of voluntary recommendations suggesting how food companies could market to kids more responsibly. Food, entertainment and advertising lobbyists launched a massive campaign to derail the recommendations, arguing that the First Amendment protects industry from any government action involving food marketing to children.

A coalition of legal scholars stepped in to point out that because companies would be free to ignore the recommendations, no one’s First Amendment rights were at stake. Still, industry has succeeded in stalling, if not quashing, the proposed guidelines.

For the first 200 years of our country’s history, the First Amendment had nothing to do with advertising. It wasn’t until about 35 years ago that the Supreme Court expanded the concept of free speech to apply to advertising, recognizing that the unimpeded flow of commercial information is important for our market economy.

But the court made it clear that false and “inherently misleading” advertising does not qualify for First Amendment protection. In two research articles published this month, I joined with leading scientists on this issue to line the evidence up against the law.

A substantial body of research on children’s cognitive development shows that any advertising targeted at children under 12 is by definition inherently misleading. In an article released Feb. 8 in “Health Affairs,” I joined colleagues to look at the three levels of understanding it takes to comprehend advertising: distinguishing advertising from other media content; recognizing the selling intent of advertising messages and recognizing that the selling intent leads to inherent bias in advertising.  Children generally don’t master all three levels of understanding until they’re 11 or 12 years old because, even if they can identify an ad and its selling intent, they don’t have the critical thinking capacity to grasp the embellishment in marketing messages.

There is no plausible way to advertise to a young child without being misleading. So the government should be able to set limits on all advertising directed primarily at children under 12 — or, if it chooses, to restrict a subcategory (such as junk food advertising) that is particularly harmful to children — without violating the First Amendment.

Food marketing to adolescents raises similar concerns. For an article in this month’s issue of the “American Journal of Public Health,” my co-author and I show how food marketers exploit many of the vulnerabilities inherent in adolescence. Marketers now frequently disguise promotions as video games and other entertainment; track young people online and through cell phones; follow conversations on Facebook and Twitter; and collect personal data to tempt youth with junk food promotions.

Psychological research consistently shows that adolescents are much more vulnerable than adults to advertising messages because the part of the brain that directs impulse control and maturity of judgment does not fully develop until adulthood. And these high-tech marketing tactics are specifically designed to trigger subconscious, emotional behavior such as mindless snacking and the surrender of personal data.

To be sure, parents bear responsibility for teaching their kids healthy habits. But what parent, no matter how well-intentioned, can compete with aggressive and sophisticated multimillion-dollar marketing campaigns? Kids are bombarded all day long with ads countering the messages their parents try to impart.

And while food companies have pledged — with great fanfare — to scale back unhealthy food marketing to kids, studies show these efforts have been woefully inadequate. For instance, on Nickelodeon, the most popular children’s TV station, ads for foods of poor nutritional quality went down from about nine in 10 of all food ads (in 2005, before self-regulation) to eight in 10 (in 2009, after the self-regulation initiative was implemented).

Federal policymakers are legally free to pursue a range of strategies to help protect children and teens from dangerously deceptive marketing, as long as the regulations are tailored to the appropriate age group. They could bar online junk food “advergames” aimed at children and teens. They could cap the number of junk food ads on children’s TV. They could limit the use of product placement in programming and licensed characters in ads directed to children.

It’s only politics, not law, that’s standing in the way.

Samantha Graff, JD, is the director of legal research for Public Health Law & Policy (www.phlpnet.org), a nonprofit research and training center based in Oakland, California. She serves on the steering committee of the national Food Marketing Workgroup, a network of more than 120 organizations and academic leaders in nutrition, public health, advertising and marketing, consumer protection, public policy, and child development working to address the proliferation of marketing of unhealthful foods and beverages targeted at children and adolescents. This post was originally published in Roll Call.

11 replies »

  1. Parenting was killed off by the welfare state, brought to you by the same bunch who called ketchup a “vegetable”.

    The first amendment is always in play when it comes to the government.

  2. We all know this Administration has taken hypocrisy to new levels but do we really think our kids are so stupid that she can lecture them to eat one way then turn around and do the exact opposite and they won’t notice?


    February 27, 2012, 8:26 am

    The White House Sunday epically failed to practice what its first lady preaches, serving the nation’s governors a more than 2,000 calorie dinner even as Michelle Obama traverses the country promoting health eating.
    While Michelle lectures children to cut out the fat and eat their vegetables unadorned with caloric sauces, she served the governors – who are in Washington for their annual meeting – a feast that included lard-marbled steak, vegetables slathered with dairy enhancements, and dessert.
    The White House has proposed mandating meals for elementary school kids that include none of these items, or anything like them.

    Here’s what the governors got:

    Garden salad
    Bread and butter
    Ribeye steak 12 oz
    Creamed spinach
    Crab mac and cheese
    Pear tart with ice cream
    White wine

    If a good diet is so important why doesn’t the first lady follow it?

  3. It might seem like splitting hairs but it’s a major distinction.

    Advertising to kids IS NOT the same as unhealthy eating habits. Your assuming a complete lack of parental involvement if you claim watching a hostess commercial directly leads to a twinkie in the kids mouth.

    Poor diet, obesity, etc are failures of parenting. Before we look to remove commercials from TV we need to start taking kids away from these parents that allow it to happen.

    Stop looking for the easy way out by blaming advertisers, the issue is parenting and until you out in the work to fix that none of the other changes will have any impact.

  4. “Selling food to our kids is about the 100th worst thing being pushed on them right now. ”

    No. I would be comfortable putting it in the top 5. The habit of eating unhealthy food will carry into obesity, (potentially) diabetes, heart disease and early death. You’re dismissing a health crisis as less important than kids drawing pictures.

    The important issues are the ones that will keep children from leading full lives – and saddling them with malnutrition and obesity IS important. Stop ignoring real problems just because you’re worried it might require some effort.

  5. From Obama’s famous attempt to indoctrine all the school kids at once

    “Critics are particularly upset about lesson plans the administration created to accompany the speech. The lesson plans, available online, originally recommended having students “write letters to themselves about what they can do to help the president.”

    This should be blocked and kids only allowed to access it with adult supervision;


    Get involved in KIDS FOR OBAMA! Studies have shown that kids can affect their parents and their siblings’ opinions and even change the opinions of older family members . . . including those of voting age.

    Ask kids to draw a picture of Barack Obama

    These pictures could be used on campaign buttons and/or bumper stickers. It’s a great way to get kids involved!

    So if kids are incapable of making decisions in regards to their diet how are they capable of engaging in politics?

    Vice President Joe Biden repeatedly told a group of 3rd-grade students that Barack Obama was “really cool” during a surprise visit to an after-school program in California, NBC News reported.

    The Associated Press is taken with the new e-book full of letters to President Obama published by the National Education Association (NEA) a liberal teachers union. Naturally, all the kids in this book are filled to overflowing with leftist talking points like pushing the anti-military angle — one kid even said he was “very luckey because I am not part of a military family.”

    The kids were all indoctrinated with concern over global warming, infused with unthinking anti-war sentiment, disdain for our soldiers, and enthusiastic for Father Obama and his big government machine. Sadly, it appears that not one of these kids have been taught by their teachers about liberty, freedom, personal responsibility and American principles.

    Selling food to our kids is about the 100th worst thing being pushed on them right now. How about we start by addressing the important ones first and letting parents worry about what their kids eat.

  6. “There is no plausible way to advertise to a young child without being misleading.”

    I can only assume you also oppose the Obama outreach to children on the same grounds then? We obviously can’t have kids signing songs about Obama if they are unable to tell they are being sold a bunch of BS. And those commercials Michelle Obama does targeted at kids must also go, thinly disguised political campaigning at best.

    Or do you advocate the Government should have the power to decide what it feels is acceptable marketing to kids and what is not? Not that government would ever abuse that.

    How do our poor kids rationalize Obama’s healthy eating advertisements with her actual diet and eating habits? They see a commercial from Michelle telling them to eat healthy then see her scarfing down 2000 calorie meals.

    “To be sure, parents bear responsibility for teaching their kids healthy habits. But what parent, no matter how well-intentioned, can compete with aggressive and sophisticated multimillion-dollar marketing campaigns? Kids are bombarded all day long with ads countering the messages their parents try to impart.”

    Unless you’re trying to teach your kids absentness in which case the government spending billions to undermine you is perfectly acceptable.