Article Explores Intersection of Junk Food Ads Targeting Children and First Amendment
In an article supported, in part, by the Robert Wood Johnson Foundation, authors Jennifer Harris and Samantha Graff suggest that the findings of psychological research about the subliminal effects of food advertising on young people should be considered when advertisers defend their practices by invoking the First Amendment’s commercial speech doctrine. Harris, who is affiliated with Yale University’s Rudd Center for Food Policy, and Graff, with Public Health Law & Policy in Oakland, California, contend that U.S. Supreme Court First Amendment jurisprudence is premised on the understanding that consumers use the free flow of commercial information to make logical decisions. “The commercial speech doctrine is built on a rational choice theory of behavior,” they claim.
But because advertisers often resort to newer forms of advertising using
“implicit messages” intended to “covertly” influence behavior and because
young people are purportedly unable to resist food advertising or consider
the content rationally, the authors contend, “[i]t is difficult to understand why
advertising designed to persuade without consumers’ awareness or developed
to appeal to young people’s unique vulnerabilities should be afforded
commercial speech protection.” They call for policymakers “at all levels of
government [to] consider testing the limits of the current, inadequate body of
First Amendment case law and advancing a constitutional interpretation that
accords with scientific reality.”
The article, titled “Protecting Young People from Junk Food Advertising:
Implications of Psychological Research for First Amendment Law,” also
observes that (i) “state and local governments have many options to regulate
locally based food sales and promotion,” (ii) “[t]hey also have significant
flexibility under the First Amendment to limit advertising in schools,” and (iii)
“state and local government attorney’s offices could file lawsuits alleging that
techniques used by food advertisers violate state consumer protection laws.”
See American Journal of Public Health, February 2012
