Law Profs Contend Nutrition Guidelines for Food Marketed to Children Pass 1st Amendment Muster
A number of law professors, including anti-tobacco activist and Public Health
Advocacy Institute President Richard Daynard, have written to the heads of
four federal agencies, in their role as the Interagency Working Group on Food
Marketed to Children, to support the group’s proposed nutrition principles
for food marketed directly to children ages 2-17. Details about the proposed
principles appear in Issue 392 of this Update.
According to the September 6, 2011, letter, the principles “embody a constitutionally permissible set of government recommendations.” Written to counter a trade association letter that urged the group to withdraw the principles on constitutional grounds, the professors’ letter notes that the “recommended nutrition principles contain no mandates” and thus “do not violate the First Amendment.”
Observing that the group “is better characterized as a routine governmental
advisory body than an oppressive censorship panel,” the professors note, “no
federal agency can impose legal repercussions on a company for following
the [Interagency Working Group] principles in only a piecemeal fashion, for
ignoring them entirely, or—for that matter—mounting a wide-ranging public
relations campaign disparaging them, as the food and beverage industry has
done.”
According to the letter, the group made “suggestions regarding the content of food marketed to children in the same way the National Institutes of Health has called for a reduction in youth exposure to smoking in movies; the Surgeon General has attempted to promote breastfeeding by encouraging hospitals to refuse infant formula advertisements; and Congress has called on the entertainment industry to reduce the exposure of underage audiences to ‘programs with unsuitable alcohol content.’”
In a related development, the Environmental Working Group (EWG), a public health advocacy organization, has called on supporters to demand that the CEOs of major food and beverage manufacturers “use their resources to market healthier food to our children, not to lobby to protect the unhealthy status quo.” In a call to action undertaken with the Center for Science in the Public Interest, EWG discusses the objections the food industry has filed to the proposed nutrition guidelines for food marketed to children, referring to the government’s guidelines as “commonsense recommendations” that “would encourage children to adopt healthy eating habits.” Claiming that the companies need to hear from their customers, EWG urges action “to stop childhood obesity.” See EWG Take Action Initiative, September 15, 2011.
