by Marion Nestle
Sep 6 2011

The food industry vs. nutrition standards: a First Amendment issue?

I just received a message from Samantha Graff, the director of legal research at Public Health Law & Policy, an advocacy group in Oakland, California.

This morning, she writes, 36 legal scholars—including several experts on the First Amendment—weighed in on the food industry’s fight against proposed nutrition standards for foods and beverages marketed directly to children.  This is the very issue I wrote about in yesterday’s San Francisco Chronicle column and have discussed in previous posts.

In a letter sent this morning to federal agencies, the legal scholars point out that because food and beverage companies are free to ignore the nutrition recommendations, the draft principles “do not restrain or compel anyone’s speech. They are not, in fact, government regulations at all.”

A key industry strategy has been to recruit lawyers to write white papers charging that the proposed nutrition standards violate First Amendment rights to free speech.

Recall that Congress asked the FTC to join with the FDA, CDC, and USDA to recommend standards for food products marketed to kids.  These agencies, collectively known as the Interagency Working Group on Food Marketed to Children (IWG), issued Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts.   This report outlines proposed voluntary standards that have been open for public comment.

My initial reaction: the standards were much too generous.  But that’s not how the food industry sees them.  Food companies realized that the standards exclude large proportions of the junk foods they currently market to kids.

They created a new lobbying group, “Sensible Food Policy Coalition” (shades of George Orwell’s 1984).   This group is doing everything it can to block the proposed standards.   Its website links to white papers opposing the recommendations on First Amendment grounds.

David Vladeck, director of the FTC’s Bureau of Consumer Protection, responded to some of these claims in a recent blog post, in which he emphasizes the voluntary nature of the proposals.

I’ve said it before and repeat: I am not a legal scholar but intention seems to matter in legal decisions.  The intent of the First Amendment was to protect political and religious speech. I cannot believe that the intent of the First Amendment was to protect the right of food companies to market junk foods to kids.

Marketing to children is unethical.  It should be stopped.  And it’s the government’s responsibility to do it.

  • We also have rights to life and the pursuit of happiness. Could we fight for the right to have access to affordable, natural food using one of our other guaranteed protections or freedoms?

  • phil

    If it’s the government, it is us.
    In broad segments of our society it seems pretty ethical.
    You may say it is immoral (wrong) but given the slippery slope you would step on, why not focus on the simple circumstance that it is also, and already, unlawful (ask Michele Simon for details)?
    Ethical problems are broader than single policy issues and moral issues broader than individual choices. With the current ‘moral’ leaders any ethical turnaround is as likely as Walmart vanquishing food deserts and unemployment. At the individual level, we may make many right choices every day, all year long, but so long as we cope with and therefore condone massive hunger, savage exploitation, and deadly wars (on terror, on drugs, on women, on nature, and on and on) we better stay away from moral talks.
    Marketing to kids is misleading. Misleading advertisement is largely prohibited by law (and common sense). Tolerance and abetting of widespread illegality is the other face of the Injustice into which we, as society, have crept.
    By the way, which kind of ends does marketing as a means serve?
    I feel like this whole marketing to kids thing ends up distracting us from some deeper, more vital issues. Do we really need marketing? Can we afford it? Kids are the germ of society. If we need to protect them from whatever ‘environmental hazard’ which will then heavily condition their growth and flourishing, no wonder we are in such a dire predicament.

  • Sara

    Expression of opinion…you have to concede the point. If marketers cannot promote their opinion that their food is “fun”, then propagandists should be constrained from promoting their opinion that fast food is “bad” or that organic food is “healthy”.

  • Anthro


    Except, fast food IS bad–it is not “propaganda” to say so. Organic food IS “healthy”–just not healthier than conventional food; although other factors, such as environmental stewardship, do come into it as well. There is a difference between fact and opinion and as the physicist Richard Feynman once said:

    “You are entitled to your own opinion, but not your own facts”.

    The government of any civilized society has a duty to protect children from predators–of all kinds. Just my opinion, but arguably factual as well.

  • Louisa

    My thoughts on freedom of speech as it pertains to advertising and TV in general are simple- you have the right to say what you like. You do not, however, have the natural right to say it on television. It’s the same thing I say to people who whine about their favorite broadcasters being fired by the network they work for after some tremendous gaffe- no one has a natural right to say whatever they want on television, a service owned by private companies and aided by the government in myriad ways. If we don’t object to the FCC keeping objectionable language and content off the airwaves, why would we object to bans on advertising junk food to children?

  • MargaretRC

    Am I missing something here? I thoughtit was the parents’ job to protect children. When my children were young and home, I didn’t give a hoot about “marketing to children.” Because if I didn’t want them to have a product that they saw advertised and asked for, they didn’t get it. Period. Last I heard, children aren’t getting in their cars and going to the grocery store (or fast food joint) or wherever and buying food they’ve decided they want based on some advertisement aimed at them. The parents do. Parents not only have the right, but the obligation to say no to things they know aren’t good for their kids. Why is it the government’s job? The government should protect kids by throwing predators in jail–something we parents can’t do. Regulating advertisements to children doesn’t protect children, it protects parents from having to say no to their children. I think our government has better things to do.

  • Kat

    @MargaretRC, remember that not all parents are as overseeing as you. Many kids live within walking distance of their local convenience store, fast food location or bodega. Many kids have bikes or ride public transit on their own, with little adult supervision. They have their own money and often cell phones, too. As soon as a child is old enough to do these independent things, they are at risk for making poor decisions influenced by the Food Industry marketing machine. I know the war cry of “small government is great” is at a peak right now, but I find it sad that even those with a desire to protect those under 18 from the food industry still can’t catch a break.

    Would you also be okay with Tobacco and/or Alcohol advertising during the daytime/after-school hours on any and all channels, magazines, etc? Do you also think helmet, car seat, and seat belt laws are overstepping the government’s duty to protect the people? If you have a completely libertarian stance (which I suspect you do) on government, then honestly, just say so and don’t try and convince readers otherwise because obviously there is no point in having this “debate”.

  • MargaretRC

    Kat, no my stance is not totally libertarian. I am actually fine with helmet, seatbelt, and childseat laws, just as I am ok with the government stepping in to stop the abuse of a child. I consider not using a childcare seat or helmet, etc., a form of abuse or endangerment. A child’s life is at stake. That’s a bit different. What the government is considering in this instance is regulating advertisement of junk food to kids, no? Are they going to keep stores from selling it to kids, too? Good lick with that. Kids (who want to despite being warned of the dangers) don’t (as a rule) smoke or drink alcohol because they can’t purchase it, not because it’s not advertised to them. Kids who can (because they have their own money and transportation to the store) are going to buy junk food whether or not it’s advertised, because we can’t keep them from knowing about it and wanting it by banning advertisements. It’s the parents’ and maybe the school’s jobs to teach them why they should not.

  • Randy

    It has nothing to do with free speech or parental responsibility. The industry hates standards formulated by independent public health and consumer protection bodies because even when non-binding, the point of comparison reveal some of their marketing tactics for what they are: manipulative and predatory.

  • Joe

    If as you say our children cannot resist the advertising of certain food products perpetuated by the big food companies then why not fight them on their terms. Instead of constantly lobbying for more restriction and regulation go out and find money to advertise “healthy foods” the same as junk foods are advertised.

    If children and their parents are unable to resist the pull of advertising then the promotion of healthy foods should begin to crowd out junk foods in the market place. That way it is a fair fight between the “good” and “bad” foods without the uneven had of government.

  • Michael Bulger

    The junk food industry spends well over a billion dollars a year advertising their products to children. These are sophisticated and targeted ads, designed to influence children’s desires. Society understands that kids are vulnerable to manipulation, and so they are legally protected in many ways. Children under 18 are not allowed to purchase tobacco, vote in elections, etc.

    The companies know that their money is influencing how kids feel. These companies are relying on children to beg, nag, throw tantrums, prey on less nutritionally-minded parents, or circumvent caring parents, in order to pay for junk. The companies then use those profits for advertising, thereby intensifying and perpetuating the cultural pull of junk food.

    If you expect to have a “fair fight” under these conditions, you need to be ready to set some ground rules for advertising. You might also want to explain how you expect to match the billions of dollars that the junk food industry expends on ads, or otherwise balance out the hand of a market with preexisting asymmetry.

  • Random Dent

    Margaret, who do you think runs the public schools? Last I checked, they were a government entity.

  • Ben F.

    By bemoaning the sophistication of advertisers and noting the inability of the healthy food cheerleading squad to compete, Michael Bulger highlights the overall lack of sophistication in the healthy food movement; it is emotional and poorly thought through. Acknowledging all this, he resorts to the movement’s preferred strategy: clumsy government intervention to bludgeon industry into submission. This is a lazy, static approach that is doomed to failure, but only after wasting vast financial resources and inflicting serious damage to our mostly OK food systems. I detest this agenda. I am in agreement with Joe – if it is so vitally important, create effective systems that can compete and rapidly dominate the marketplace. Anything less is autocratic and unsustainable.

  • Jim Kimmons

    Ah, the Nanny State is alive and well, still spending vast amounts of taxpayer dollars to accomplish dubious results, while chipping away at liberty.

  • Michael Bulger

    Ben F.

    What I highlighted were the vast amounts of financial resources that ensure that the playing field is uneven. I was not noting a lack of sophistication amongst healthy food advocates. If you gave healthy food advocates $2 billion dollars for marketing, I’m sure you would get some very sophisticated ads.

    As it is, the dominant capital resources of companies such as PepsiCo or Nestle are shored up and enlarged by federal money. Government intervention is already at work. The question that remains is whether government will act on behalf of general welfare.

  • Ben F.

    USDA Farmers Market Promotion Grants currently put up to $100,000 free cash in the pocket of each qualifying direct marketer. USDA has already earmarked $10 million for farmers markets. Healthy food advocates aren’t using these handouts effectively and they still couldn’t compete if you gave them the full $2 billion you cry out for. Anyway Pepsi and the others fund their own marketing campaigns without USDA handouts and you should too.

  • Oh..I don’t know. I use the marketing ploys to show my kids how they’re being duped, and to be smart/aware about how they are being enticed. We also don’t have cable TV (they only watch things through the PS3), so they don’t see many commercials. They didn’t know what McDonald’s was until they were about 5, or so, and they never bother me to go there. I think children have been marketed to for as long as people have been selling stuff. The onus is on me to teach them how to negotiate this overly commercialized, overly consumptive society and to come out on the other side with actual smarts about it.

    I do agree with Bruce, however, that industry is too protected, and that there should be more transparency about food production practices, as well as labeling to let me know what I’m buying….label-reading is, in fact, one of the ways I teach my kids to be smart eaters.

  • Margeretrc

    @Random Dent, I used to teach public school. I’m well aware of it’s connection to government. I am not against all government regulation or intervention–occasionally it has its place. But I am against spending money on regulation when there are other options that are less intrusive (education, parental control) and less likely to fail. Ads for alcohol and cigarettes are not allowed and kids can’t walk into a store an purchase either. Yet there are young kids who do smoke and drink alcohol. What makes you think that if you spend gazillions of taxpayer money banning ads, that will keep kids (who have their own money and transportation) from walking into a store, seeing something they like, and buying it? Also, unless you put a stop to ALL advertisements aimed at kids, it becomes a question of which kind of ads do you bar and which not? Who decides and on what grounds? I think we can all agree that high sugar snacks are junk, but what about a granola bar? Canned fruit with sugar added? Low fat chocolate milk? I think they’re junk, too, but I doubt that will be a target of this regulation.

  • Michael Bulger


    You are also missing the point that this is about recommending that food companies not advertise junk to kids. Its not directly about which crops are more easily insured with government subsidies, what foodstuffs are protected by revenue safety nets, which ingredients start their life on a direct-payment acre, or what tax breaks these companies enjoy.

    The further we venture from the topic of advertising, the more it seems that you acknowledge that these companies’ foods are inferior, but still insist on defending these companies and their government support, regardless of whether they are pushing unhealthy choices on kids.

  • Margeretrc

    Government can’t protect kids from everything. It’s a matter of picking battles. By all means, protect them from serious threats–like diseases, car and bike crashes, and abusers of all kinds. Leave protecting them from junk food to the parents, with perhaps a little help from schools. After all, parents have to, maybe even want to, contribute SOMETHING to the raising of their own kids!

  • Susan Edwards

    All we can do is give the nutrition information. We should think about offering classes to people to teach them how offer tasty vegetables.

  • Random Dent

    Ah, but Margaret, trying to educate kids about healthy food doesn’t raise math or reading scores, surely you realize that as a former teacher. I’m appalled about how much language and science we’re cutting already in order to teach to a math and reading governement required assessment that is supposed to tell how well our teachers are performing. You want nutrition education in public schools? Then we need to spend gazillions of taxpayer dollars overhauling our educational system.

  • Margeretrc

    @Random Dent, I didn’t say I want nutrition education in Public School–I said (or meant) that possibly public schools could fill in the gaps left by parents who don’t know enough about nutrition to properly educate their kids. But Public school health education is far from ideal, especially where nutrition is concerned, so I’m not pushing for an emphasis on that. As you say, a lot of valuable education falls by the wayside in the attempt to prepare students for tests that aren’t really all that valuable in terms of prepping kids for the real world. And I have to say (as an OT aside), no government required assessment is going to accurately tell how well a teacher is doing. Teachers have to deal with variation in their student body and it is a total mistake to judge a teacher by students’ performance on some government required assessments. If students do well, it could be because they have a good teacher and/or they are on average above average ability, or it could be because a lousy teacher teaches to the test. There’s no way of telling. Most of the government required assessments out there today are useless all around, in any case! We need to teach our kids critical thinking and problem solving skills and, to my knowledge, the test that tests that isn’t out there yet. But that doesn’t address the issue here. However, if we spent gazillions of dollars overhauling our educational system (instead of trying to keep businesses from advertising to kids), we wouldn’t need to worry about ads targeting kids, because they would have the critical thinking skills necessary to see through the ads and think for themselves!

  • Random Dent

    Margie, you’re assuming:

    A) Parents are educated themselves (usually aren’t, especially in decent nutrition)

    B) Parents have the time and energy to spend on educating their children in such.

    C) People understand that front of package marketing isn’t a true representation of the nutritional quality of what’s inside.

    You’ve pointed out the government DOES have a responsibility to protect children from serious issues, like disease. When a morbidly obese parent is spouting off how, “Oh, I don’t have time to worry about eating healthy, or cooking from scratch, or exercise,” then how healthy is their child going to be?

    It’s evident that these corporations have very little interest in doing what’s best for their customers, and instead emphasize profit above all else. Dr. Nestle is calling them out for their ineffective, confusing, and/or complete lack of self regulation. When you have a predatory business model, THAT is when government regulation becomes necessary, whether it be banking practices, tobacco sales, or food products.

    And remember, art, music, math, science, and analytical writing do teach critical thinking. I agree if education better emphasized these, we may not need as much regulation. Until the answer isn’t A, B, C or D though, we need to look to another method.

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