Food Advertising to Kids Deemed “Inherently Misleading”
In an article titled “Government Can Regulate Food Advertising to Children
Because Cognitive Research Shows That It Is Inherently Misleading,” two
attorneys and a communications professor assert that the First Amendment
is no bar to the regulation of “junk food” ads targeting children younger than
12 because they lack the ability to understand the advertisers’ intent. Because
children are unable to effectively comprehend advertising, according to the
authors, any commercial messages directed toward them are “inevitably
misleading.” The research and article were supported in part by a Robert
Wood Johnson Foundation grant.
The article first cites research about the amount of time children spend
watching TV as well as “more than sixty published studies” purportedly linking
TV exposure and obesity. It also discusses the numbers of “low-nutrient,
calorie-dense” products advertised to children daily on TV and notes that
the most heavily advertised food brands are also promoted online through
advergames and other interactive techniques. Turning to First Amendment
jurisprudence, the article then asks, “How is it that ‘freedom of speech’ came
to include not only political commentary and artistic expression but also junk
food ads?”
The authors contend that under the U.S. Supreme Court’s “Central Hudson
test,” ads that promote illegal activity, are false or are actually or inherently
misleading are exempt from First Amendment protection. According to the
authors, studies show that children cannot reliably distinguish program
content from commercial advertising until about age 4 or 5; children do
not consistently demonstrate the knowledge that advertising messages are intended to sell products until about age 8; and “children generally
lack effective understanding of advertising tactics such as exaggeration,
embellishment, and ‘puffery’” until about age 11 or 12. Because the intended
audience cannot properly comprehend food ads, the authors argue that
government may ban advertising to children outright given that this lack of
comprehension makes the ads inherently misleading.
They suggest that Congress “could bar all online junk food advergames aimed at children; the Federal Communications Commission could cap the number of junk food advertisements on children’s television programs; or the Federal Trade Commission could restrict the use of licensed characters in ads directed to children.” They conclude, “Any government efforts to regulate food advertising to children may face political hurdles, but the First Amendment should not pose an obstacle.” See Health Affairs, February 2012.
