by Marion Nestle
Feb 9 2012

Should the First Amendment protect the marketing of junk foods to kids?

For some time now, I’ve been arguing that legal scholars ought to be challenging the contention of food corporations that the First Amendment gives them the right to market foods any way they like, even to kids.

I simply cannot believe that the Founding Fathers of the United States intended the First Amendment for this purpose.

In December 2010, I urged public interest lawyers to examine current food marketing practices in the light of the First Amendment.  I am pleased to see that they are now doing so.

Samantha Graff of the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) forwards two co-authored articles published this month:

Health AffairsGovernment Can Regulate Food Advertising to Children Because Cognitive Research Shows It Is Inherently Misleading, by Samantha Graff, Dale Kunkel, and Seth E. Mermin.

The childhood obesity crisis has prompted repeated calls for government action to curb the marketing of unhealthy food to children. Food and entertainment industry groups have asserted that the First Amendment prohibits such regulation.

However, case law establishes that the First Amendment does not protect “inherently misleading” commercial speech. Cognitive research indicates that young children cannot effectively recognize the persuasive intent of advertising or apply the critical evaluation required to comprehend commercial messages.

Given this combination—that government can prohibit “inherently misleading” advertising and that children cannot adequately understand commercial messages—advertising to children younger than age twelve should be considered beyond the scope of constitutional protection.

American Journal of Public Health: Protecting Young People from Junk Food Advertising: Implications of Psychological Research for First Amendment Law, by Jennifer L. Harris and Samantha K. Graff.

In the United States, one third of children and adolescents are overweight or obese, yet food and beverage companies continue to target them with advertising for products that contribute to this obesity crisis.

When government restrictions on such advertising are proposed, the constitutional commercial speech doctrine is often invoked as a barrier to action. We explore incongruities between the legal justifications for the commercial speech doctrine and the psychological research on how food advertising affects young people.

These papers are a great start to the conversation, as was a previous contribution from these authors: A Legal Primer for the Obesity Prevention Movement, American Journal of Public Health, 2009.

First Amendment scholars: weigh in, please.

And while pondering these questions, take a look at Raj Patel’s piece in The Atlantic, “Abolish the food industry.”  In his view, the First Amendment issue is a no brainer:

I side with the American Psychological Association in thinking that advertising to children is unconscionable. Rather than dwell on the First Amendment issue, which strikes me as an easy case to make, I think it’s worth addressing a deeper question underlying the San Francisco cigarette-in-pharmacy ban: Why allow an industry that profits from the sale of unhealthy food at all?

Additions, February 14: Michele Simon sends links to additional information about this issue:


  • My question is: Why do parents even let their kids watch any television?

    BTW, friends don’t let friends watch Fox News.

  • chuck

    the first amendment should be cited while allowing people who are not medical doctors or registered dietitians to give out nutrition and dietary advice.

  • Producers and sellers of unhealthy food should not be allowed to hide behind the First Amendment, I agree with that completely. The case to be made is not that the information is misleading but that companies should not be producing harmful substances in the first place at a huge cost to society since we lose resources that could have used in a beneficial way and also have to pay higher healthcare costs as a society.Also, a related issue: how come we have let TV ads exercise a greater influence on our kids than our own beliefs? Its time to say a firm “no” to the endless demand for sugary, processed snacks.

  • PepsiCo has just announced it is boosting marketing by $600m – this year – including more effort to push Pepsi-cola

    May I suggest that if you are interested looking at the First Amendment issues on freedoms to say what you like about boosting the sales of products that increase sugar consumption, now would be a good time to start.

    Well, yesterday or 10 years ago was a better time to start. But, better late than never.

    Just think of all that lovely free publicity. You against the giants of the food and beverage industry, going toe to toe on the steps of The Supreme Court. John Grisham would be on one phone line, Hollywood producers on the other.

  • justthefacts

    When speech is money, and corporations are citizens, it is difficult to expect reason to prevail.

    The cult of the “Founding Fathers” needs to die. The best thing they did was make the Constitution subject to amendment, and the sooner we amend it to overturn Citizen’s United, the sooner we can begin to apply reason to the First Amendment.

  • Benboom

    “the first amendment should be cited while allowing people who are not medical doctors or registered dietitians to give out nutrition and dietary advice.”

    Yes, you should certainly follow the advice of medical doctors and registered dietitians…after all, they are the ones who have been telling you to eat six servings of “healthy grains” a day, get rid of dietary fat, and – oh yeah – take your statins. How’s that working for you?

  • It’s definitely an interesting discussion to have. Is it ok for them to take away first amendment rights for this, but not something else?

  • Angie

    This is a facinating topic. The complexity around how the government would even go about implementing restriction on marketing junk food to kids would be a huge challenge – what is considered junk food, is it based on sugar, fat, other macronutrients and who makes that call, what media would the restrictions apply to and how would they determine the typical age of the viewer/user (this would be terribly challenging out side of TV). As a person in marketing (though not to kids), it seems that inlight of the new research, companies would have the social responsibility to self regulate.
    As a parent, I feel that it is my responsibility to protect my chilidren from the types of foods that I deam unhealthy and any marketing that I feel is inappropriate for them. I am fearful of government taking on that parental decisioning and how well regulation could be done and by whose standard of “health” it would be decided. Lord knows a lot of those standards are already influenced by Big Food. In this case, it somewhat feels that regulation is being proposed to account for the lowest common denomitor of parenting. I’m still grapling with if that is the right thing to help children who’s parents might not be as informed/concerned with this type of food/marketing.

  • chuck


    i agree that what the so called experts typically recommend is poor advice. i think the first amendment should be used to allow non dietitians and doctors to continue to give out nutrition advice.

  • Thanks for the link to Raj Patel’s piece. I’ve personally been thinking that it would be great if restaurants and retail food companies should not be allowed to be on the stock exchange. If they are privately held or not-for-profit corporations wouldn’t there be less emphasis on continually improving stock value driving continually increasing advertising and expansion of product lines? The primary objective of the food industry should be to provide food, not shareholder value.

  • Joe

    When your own arguments can’t gain an audience then silence the opposing view. That seems to sum up the idea of using the power of government to take away free speech from a food company that you think promotes a way of life you oppose.

    If your ideas for fighting obesity are as valid as you claim them let them stand on their own without the government subsidy. Moreover if advertising is such a compelling tool of persuasion then put together some ads that promote your message and let them live or die in the marketplace of ideas. What I suspect is that those ideas are not palatable to a mass market resulting in the need to be propped up by the government.

    Bear in mind that I am not opposed to encouraging children via the guidance of their parents to eat a healthy diet. I am just bewildered at the thought of calling on government to be the arbiter of everything that goes into our mouths.

    What our founders so keenly understood is that each person by nature has a desire to be free to make their own individual decisions. They created a nation that fostered that freedom that is now being squandered by those who would take away the freedom to eat certain foods. Thus my bewilderment….

  • Dear Professor Marion Nestle,

    Indeed, hard boiled eggs are sterile. But what happens when these eggs are peeled and are kept in an environment that is contaminated with Listeria monocytogene.
    In my view there is only one way to get rid of Listeria. I gather you do not know of the product called LISTEX P100 made by Micreos Foodsafety. Listex P100 is a safe (FDA approved as GRAS = Generally Recognised as Safe) phage preparation produced by the Dutch company Micreos Food Safety in Wageningen. It is also approved as a processing aid by Health Canada and in many other countries. It is a natural and relatively inexpensive product, much cheaper than destructing a great lot of good product or having to worry night and day about possible product contaminations with Listeria.

    For more info just goto There you will find all details. Listex is inexpensive and can (and should) be used by all foodproducers.

    Perhaps you could write a paper on Listex. All the info can be given by Micreos. (Gold Food innovation winner!)

    I am not working for Micreos, but I know that Listex P100 works!

    Gustaaf van der Feltz

  • I can’t agree with the overall tone of this post or the comments following, eg, “hiding behind the First Amendment”. If the First Amendment means anything, it means freedom of speech for those who’s ideas you vehemently disagree with. If you start arbitrarily saying some ideas are so beyond the pale of respectable opinion that *of course* the First Amendment doesn’t apply, you set up a slippery slope where all manner of interest groups can claim this, with results that none of us would like very much.

    And for those of you going on about the “corporations as people” principle, I need only remind them of the fact that the New York Times is a for-profit corporation, as are the overwhelming majority of newspapers, publishers, movie studios, and other media outlets. So in the world you want, the government gets to dictate what they can and can’t print or broadcast because they’re not “natural persons”? Be careful what you wish for.

    All of this said, there are already some restrictions on advertizing, both in time and place, and deliberately misleading. But such exceptions are narrowly crafted, as well they should be, with the idea the First Amendment itself is vital to our democracy and there should have very few exceptions to such protection. Certainly beats the hell out of the views of those who have come to see the First Amendment as a “problem” to be solved by greatly weakening it.

  • Margeretrc

    Okay, let’s say we ban/regulate advertising to children–however we manage to do it. You pretty much have to ban all advertising to children, because, as @Angie said, who gets to decide which products meet the standards and which don’t? If some ads are “inherently misleading,” they all are. But then, who is going to pay for children’s programming? Will it become subscription only programming, so that people with less disposable income can’t afford it? Will it be something only stations like PBS, supported by donations, can offer? All those adverts to children (and adults, too) that people are worried about are there so the programming can be free–or am I mistaken about that? Someone has to pay for the expense of producing a program/publishing a magazine, etc. It’s either going to be industry paying for ads, the government (using taxpayer money) or the individual family. No one is going to do it out of the kindness of their hearts. Something to think about. Perhaps you think public health is more important than free children’s programming? Food for thought.

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  • What it comes down to is parents being responsible for their children and teaching their children about healthy eating and exercise habits. Portion control should be enforced. There’s no need to deny children of sweets entirely. But only allowing 2 cookies after dinner instead of letting the children take as many as they want will teach boundaries.

  • Cathy Richards

    The Yale Rudd Center also has this interesting podcast on the first amendment/food marketing issue:
    If this link doesn’t work, open the Yale Rudd Center podcast page, select “All” to view all the podcasts, and then search (Ctrl f) for “amendment” .

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  • This is a great article! Kids are eating waaaaay to much junk food. Just so everyone here knows there are consumer protection statutes that people are using to sue food manufacturing companies for misleading advertising. If you want to learn more about the legal aspect of fighting the fight for healthy food, check out this article:

    What Are Our Kids Eating?