Jennifer Pomeranz, “Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate,” Journal of Law, Medicine & Ethics, Spring 2010

Authored by the director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, this article purports to demonstrate that food and beverage advertising to children is deceptive and misleading speech and therefore not protected under the First Amendment. According to the author, because this speech is not protected, the Federal Trade Commission (FTC) has the authority to restrict the industry’s marketing to youth. The article discusses scientific studies about the effects of advertising on children and analyzes court opinions addressing First Amendment and commercial speech issues.

The author then contends, “If children under a certain age cannot understand that the communication is intended to persuade them, then this is a deceptive and misleading way to propose a commercial transaction to them. Because the marketing messages cannot be presented in a way in which they could understand the intent of advertising due to their limited cognitive abilities, such speech cannot be corrected as would be the case if it were only potentially misleading.” Thus, the author concludes that the government should regulate food and beverage advertising to children as deceptive and not constitutionally protected; she states, “Childhood obesity is a public health catastrophe in need of such interventions.”