by Marion Nestle
Dec 7 2010

How about reassessing First Amendment “right” to market junk foods?

Food companies insist that they can make health claims for their products, whether backed by science or not, because commercial speech is protected by the First Amendment.

The First Amendment, in case you have forgotten, says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In a commentary in JAMA earlier this year about front-of-package labeling, David Ludwig and I argued that it was time to take another look at current interpretations of the First Amendment suggesting that free commercial speech is equivalent to free political or religious speech.  Surely, we said, consumers would be better off without front-of-package labels and health claims on food products.

Last month, the British journal Public Health Nutrition published an article by  Timothy Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School.

His article, “Banning front-of-package food labels: First Amendment constraints on public health policy,” takes issue with our JAMA argument:

In recent months, the FDA has begun a crackdown on misleading nutrition and health claims on the front of food packages by issuing warning letters to manufacturers and promising to develop stricter regulatory standards. Leading nutrition policy experts Marion Nestle and David Ludwig have called for an even tougher approach: a ban on all nutrition and health claims on the front of food packages.

Nestle and Ludwig argue that most of these claims are scientifically unsound and misleading to consumers and that eliminating them would ‘aid educational efforts to encourage the public to eat whole or minimally processed foods and to read the ingredients list on processed foods’.

Nestle and Ludwig are right to raise concerns about consumer protection and public health when it comes to front-of-package food labels, but an outright ban on front-of-package nutrition and health claims would violate the First Amendment. As nutrition policy experts develop efforts to regulate front-of-package nutrition and health claims, they should be mindful of First Amendment constraints on government regulation of commercial speech.

And now, Public Health Nutrition has just published our letter in response to Lytton’s paper.  We say:

In his thoughtful paper about front-of-package food labels, Timothy Lytton states that a ban on such labels would violate First Amendment provisions of the US Constitution. Lytton cites case law to argue that lower courts have consistently interpreted the First Amendment as providing guarantees of free commercial speech.

Indeed they have, and in 2003, the Bush Administration Food and Drug Administration (FDA) stopped defending against misleading health claims cases on First Amendment grounds. We are not lawyers and make no pretense of arguing case law. However, it seems obvious to us that this interpretation of the First Amendment neither follows its original intent, nor promotes the public interest.

The founding fathers clearly intended the First Amendment to guarantee the right of individuals to speak freely about religious and political matters, not the right of food companies to market junk foods to children and adults. Laws are subject to reinterpretation and change, as the history of civil rights legislation makes clear.

That politics influences interpretation of the law at the highest level is evident from the US Supreme Court’s decisions in Bush v. Gore (2000) and Citizens United v. Federal Election Commission (2010).

We think the time has come for major legal challenges to the right of corporations to mislead the public on the grounds of free speech. The front-of-package health claims controversy demands immediate attention. We hope that legal scholars will examine current food marketing practices in the light of the First Amendment and establish a firm legal basis for bringing this issue back to court. Lytton’s arguments make the need for such reconsideration perfectly evident.

Public interest lawyers: get to work!

  • http://www.betterschoolfood.org Dr. Susan Rubin

    I’ll be a great grandmother by the time we get some first amendment based legislation! The answer will have to come from the ground up, not the top down. No lawyers necessary!

    We can do something far more effective right now which doesn’t require tedious legislation to protect our kids from junk food advertisers. Its called media literacy.
    Integrate critical thinking skills and media literacy into every english class from 1st grade on up! Teach kids how to dissect the lies they are being told on TV an in the supermarket. Raising the Food IQ to include the ability of kids to evaluate bogus health claims would not only be fun, it would empower them for their entire lives.

    The Nourish Curriculum (http://nourishlife.org/curriculum.html ) has a component in their program. I’m sure the Center for a Commercial Free Childhood has plenty more resources. Parents and scout leaders can get to work on this right now! Let’s work to get this important skill into our schools.

  • http://www.muddydogcoffee.com Jim

    Isn’t the issue really whether or not they tell the truth on the labels? Don’t we already have laws which forbid claims for which no scientific evidence exists? And don’t we have standards for what constitutes proof? I know this is true with respect to pharmaceuticals. If there is anything to be done here, shouldn’t we really be taking FDA to task for lack of effective enforcement? A Warning Letter, followed by a Consent Decree, followed by the US Marshalls seizing the contents of a warehouse are all actions available now. While I respect your work and have enjoyed one of your books (I haven’t read the others), and fundamentally agree with you that freedom to make spurious claims is not the intent of the first amendment, banning any *true* speech just because others may lie seems fundamentally wrong to me. If there are producers who do take appropriate steps to validate their claims, why should they be prohibited from making them? And do consumers have no accountability at all in this? We really need the government to protect us by gagging producers? I’m rarely the smartest guy in the room, and have no special education with respect to nutrition, but somehow I’ve managed to make it through life (so far) healthy and happy by simply following the rule of avoiding ultra-processed foods, and recognizing that if something sounds too good to be true, it is. I, for one, would prefer the government stay out of my life entirely, whether it be regulating which foods I can buy, or what the producers can say about them.

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  • Subvert

    Now remember, First Amendment rights are for corporate entities, and shall only granted to citizens and the press by the government, assuming requester has prior approval by the applicable corporate entity.

  • Anthro

    @Jim

    That’s fine, Jim–for YOU–and you do say, “I, for one…”, but Marion and others are writing about public policy that affects everyone, especially children who don’t yet have fully-developed views, but are very impressionable when bombarded with a constant stream of very dubious claims from the “food” industry.

    I, too, am happy and healthy due to good nutrition and a dose of inborn skepticism that was enhanced by a sound education that taught critical thinking, but I wouldn’t imagine for a moment, that this is the norm.

    @ Dr. Rubin

    A fine idea–this is the way it was when I was in school and I did this with my own children (and some of them got it in school). The real question is: what happened? Why are schools now so devoid of critical thinking skill teaching? By all means, lets get it back in the curriculum

    @Subvert

    Oh, you have a very sardonic wit in addition to being my favorite contributor!

  • http://www.thetableofpromise.blogspot.com The Table of Promise

    Hear hear!!

  • Cathy Richards

    @ Anthro and @ Jim
    Yup, I’m pretty good at reading food labels and figuring out where exagerations and lies exist. So maybe I don’t need a law protecting me with food advertising.

    But at a car dealership, an investment broker’s office, computer store, etc I am depressingly naive. I need a law protecting me from misleading advertising with these guys. (Think Bernie Madoff.)

    And I know my investment broker and computer tech are both lacking in nutrition savoir-faire. They need a law protecting them from misleading/untruthful food advertising.

    I expect all advertising to be misleading, but I sure wish I could count on it all being truthful. It seems to me “buyer beware” is a pretty poor way to run a civilization.

  • Subvert

    @ Dr Rubin, Anthro – sad to say, but our government-sponsored corporate consumer culture does not value critical thinking. Critical thinking incorporates many dimensions of consciousness and reason into making a decision. Do you think the crap-peddlers want you contemplating or thinking about the true cost or value of buying unnecessary items? If they had it their way, they would control the button in your brain that triggers “BUY, BUY, BUY!!!!”. And hey, if things keep on the current track, they’ll even have that figured out and approved by the FDA! Maybe in a way that would be good? I personally am finding that being a critical thinker in a society that for the most part seems happy to have it’s head buried in the sand is very burdensome and taxing…

  • http://mediterraneandiet.tv/ edSanDiego

    A direct attack against an established canon of law risks dividing opinion by asking people to decide on a much deeper philosophical question, rather than the more serious issue of mischievous representation in order to sell goods to an unwitting and unqualified consumer.

    The food industry would have a field day, as would the Tea Party. They would out spend anyone and everyone, and tie-up the best lawyers in the word defending their profits. The end result might actually be counterproductive to the objective of getting people to consume less, as the McDonald’s obesity case showed in 2003 when the judge virtually accused the plaintiff of irresponsible eating.

    Kelly Brownell and colleagues at Yale Rudd have a more direct approach that may prove to be much more effective than spending a decade or more fighting a path that leads to the Supreme Court. Brownell and others are pursuing the ever mounting scientific evidence that food in artificially concentrated forms is addictive, especially so for those that are morbidly obese. Once this link is proven and combined with the substantial data one the adverse health impact that processed foods have, more direct action can be taken on restricting the sale of highly processed foods including Federal fiscal measures and restrictive practices on marketing to children.

  • Dan

    Meanwhile,the Brennan Center for Justice at NYU School of Law just gave their annual Legacy award to Indra Nooyi, Chairman and CEO, PepsiCo http://www.brennancenter.org/content/pages/2010_brennan_legacy_awards_dinner

    Justice Brennan was almost certainly rolling in his grave at Arlington National Cemetery.

    Maybe the Brennan Center can somehow atone for giving Ms. Nooyi this award, by helping in this First Amendment battle.

  • Dan

    “The First Amendment protects the right to speak, not the right to spend.” Justice Byron O. White (with regards to campaign finance…but anyway… http://ftp.resource.org/courts.gov/c/US/470/470.US.480.83-1122.83-1032.html)

  • Joseph Docu

    Oh Marion, what part of America is run by rich corporations solely for their benefit don’t you get? (You go girl!)

  • http://www.theblackninja.com/ Jeb

    Errr, isn’t that a right for individuals and not for companies? That sounds as ridiculous as saying we should give all the homeless people money because they will spend it and support our economy

  • Anthro

    @EdSanDiego

    Wow! That’s fascinating–thanks for the reportage. It’s good that there are some other ways to skin a cat (what a horrible phrase).

    @Subvert

    Sadly, I know you are right, but I am reluctant to abandon all hope. That’s one reason I stick with this blog.

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  • Peaches

    Oh, good grief. I am heartily sick of the nannyism of “But, it’s FOR THE CHILDREN!” claims made solely to promote invasive laws that cater to the lowest common denominator. Children may not be educated enough to discern the best nutritional value – but that is why they have PARENTS. Parents who will buy their children anything just to shut them up or ‘spoil’ them are the issue, not the poor stupid children you want to “perteckt”.

    FYI, I raised my children to learn what went into food – they helped with the garden, the canning/dehydrating/storage of not only the fruit and vegies we grew but what we bought in bulk from farmers and farmers’ markets. They learned to cook REAL food, even how to butcher hog, deer, and chicken, right in their own suburban backyard. “Fast Food and Prechewed Food” received low marks in our home.

    Just because not every parent understands that burgers and a king-size bag of chips are NOT a healthy supper, you want laws, laws, and more laws. Why not let Darwin hold sway, and let those ignoramuses and their git grow up to be fat, slovenly, emotionally and functionally starved, die young, and leave the gardens and the real food for those of us who know what to do with it? Purposeful stupidity should not be rewarded and encouraged with more laws that ‘perteckt’ them – they should be allowed to trap themselves in their own bathtubs and bedrooms with their own fat and ignorance. Honestly, you really CAN’T fix – or remove with legislation – gross ignorance and stupidity, and only power freaks try.

  • http://bodeloubakes.wordpress.com ashleybode

    even if legislature doesn’t change, i wish more people were capable and knowledgeable enough to filter through all those marketing campaigns and know what is worth eating and what isn’t. sadly, you can only tell someone so many ways, they have to actually UNDERSTAND it.

  • Josef

    Prof. Nestle: Word. Way to advocate sticking it to the corporate scum who (a) are incapable of weighing profits vs. social impact and (b) don’t deserve to be recognized as entities deserving of free speech anyway.

    Peaches and Jim, get a clue.

  • JudyThomas

    Hi Jim: No, we do not have such laws or they are not enforced. For example: the Dietary Supplement and Health and Education Act (form the entry from Wikipedia):
    The DSHEA, passed in 1994, was the subject of lobbying efforts by the manufacturers of dietary supplements and restricted the ability of the FDA to exert authority over supplements so long as manufacturers made no claims about their products treating, preventing or curing diseases. According to Consumer Reports, “The law has left consumers without the protections surrounding the manufacture and marketing of over-the-counter or prescription medications” and it became the FDA’s responsibility to prove that a supplement wasn’t safe. While pharmaceutical manufacturers must demonstrate their products are effective as well as being safe, supplement manufacturers are not required to demonstrate efficacy. The FDA has only ever found one dietary supplement to be unsafe, the weight loss/energy supplement ephedra.[16] Discussing the legislation, Time referred to the DSHEA as “ill-conceived and reprehensible”, that “gives the industry virtually free reign [sic] to market products defined as dietary supplements, while severely limiting the FDA’s ability to regulate them”.

    The same is pretty much true in the food industry, and regulating agencies have so little staff or resources that they cannot properly inspect or test our food or “nutritional” supplements for safety. (BTW, this explains why supplement labels have slogans on them like “enhances muscle tone” or “promotes circulatory health” “supports bone health”- they have no evidence for these and skirt the law with these claims.)

  • Todd McKay

    Yes, I agree with Marion Nestle. And I think pictures of sexy ladies on the front of magazines should be outlawed because they lead to men having affairs — I’m not talking porn, I mean Cosmo and People. And also religious pamphlets and Bibles need to go, because we all know that Christians believe in creation, which is known to hurt science scores and lead to all sorts of hate crimes and social ills. Studies show that. But mainly all advertising for luxury goods definately needs to go, because it is a proven fact that people go into debt and harm their children because they buy luxury goods that they cannot afford. All credit card advertising is abusing to credit addicts and needs to be eliminated. In fact, I can’t think of any commercial communication that does not abuse someone. The jacket cover of your book, Marion, is really a bit of a selling tool isn’t it? Could you not have just used a white background and Time New Roman font to describe what was in the book, Marion. Come on, you are trying to manipulate people who can’t make adult decisions on what kind of books to read, Marion.

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