The San Francisco Board of Supervisors have approved a ban on Happy Meals and other fast-food servings that fail to meet nutritional standards. While sympathetic to the motivations behind the legislation, I have serious questions over the constitutionality (and logic) of the ban.
For many years, advocates attempted to use tort law to curtail fast-food as a defective product or a nuisance. Like others, I was critical of the use of tort law in those cases. Now, there seems a push to simply try to outlaw such food. Yet, it is hard to see how they can satisfy even the rational basis test under constitutional law. After all, other low nutrition food will be available in a city famous for its Ghirardelli’s chocolate. They are simply targeting those chains which give away toys.
Moreover, this denies parents the ultimate say as to what their children eat. Parents may impose a perfectly healthy diet on their children but allow them to eat at McDonald’s once a week or once a month. This is the ultimate expression of patneralistic legislation — taking such decisions from parents. Companies could challenge the law under equal protection, due process, and other constitutional claims.
The government can certainly demand the posting of nutritional information and campaign against such low nutrition foods. It can certainly ban such food from school cafeterias, but this is one bill (in my view) that would not pass constitutional mustard . . . I mean muster.
Jonathan Turley
Source: CNN
“Anyone’s who has been trapped in a car with a kid screaming to go to Mickey D’s to get an 5 cent Avatar plastic mold, surely will understand my dilemma.”
Mespo, It’s called parenting. I prefer to handle that myself. I’m pretty sure it has always been the role of the parent to set the boundaries, and that of the child to test them. If the child gets their way by screaming, they will undoubtedy repeat the act.
Bob,
Unless I’m thinking of the wrong Huxley; I don’t think I’ve ever read anything by his father.
Why not stress the ‘war-like crisis’ inherent in Happy Meals?
“Liberty, as we all know, cannot flourish in a country that is permanently on a war footing, or even a near war footing. Permanent crisis justifies permanent control of everybody and everything by the agencies of central government.” — Aldous Huxley
Bob,
“Huxlean/dystopian?”
From what I remember of “Brave New World” it was a pretty straight forward condemnation of viewing society as simply a engine for commerce. Which fits in well with “Island” (not strictly a dystopian, more like the prelude to one). “Ape and Essence,” the other dystopian I know of from Huxley, has more to do with the dangers of nationalism than anything else. Am I forgetting one?
Mespo,
Most of the “facts” you mention are only opinions. There is no evidence based reason to ban Happy Meals, only what is known as “best practice” meaning a consensus of experts which has a tendency to change with the political winds and the next round of research. “Best Practice” is the least reliable method of determining how medical illness should be treated and often is only the best guess available. Best practice opinions change all the time.
Look at red wine. There are opinions based on non-scientific evidence (meaning the lack of valid studies or studies with low numbers or lack of controls) that both support a glass of red wine a day and condemn it. The same is true of dark chocolate. There are studies that show that people with BMIs in the thirties (which is considered obese by some standards) outlive persons with lower BMIs. At best the scientific underpinnings of nutrition are a mixed bag.
Using convenient “facts” is no way to develop a reasonable public policy especially one that has civil rights implications such as the ones proposed in NYC and SF.
Fed 51 supports legislation against Happy Meals?!
Jesus H. Christ.
“Your notion of the State being delegated the power to enforce duties of virtue as if they were duties of right is sheer modern liberal fantasy.”
Correction: Should read simply ‘modern fantasy’ since both liberals and conservatives have similar agendas seeking to merge duties of right with duties of virtue.
Ronald:
“wow, so now we need to get involved in family nutrition for the good of the children.
How hard is it to read a book on nutrition. How many times a week do people eat at McDonalds to make this a problem.”
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If men were angels (or as amended by Buddha to “angles” on another thread), no government would be necessary.
~James Madison (Federalist #51)
Jason:
I agree the marketing is generally to children who can’t make the purchase. I just can’t decide if that makes the practice even more pernicious. Anyone’s who has been trapped in a car with a kid screaming to go to Mickey D’s to get an 5 cent Avatar plastic mold, surely will understand my dilemma.
What’s next in line? Ban candy from the aisles? Ban soda pop from the aisles?
Can cereal no longer contain a puzzle or prize? Will they need to change the packaging, so as to notice entice the little ones?
The government has no legitimate reason to get involved unless it is the government who is providing the meal, or the parent has been so negligent as to put the child’s health in danger. That must be evaluated on an individual basis.
Is the obesity problem caused by malnutrition? Funny, I thought it was the result of excess.
Mespo: “Now that we’ve got that Locke thing straightened out, I bet we get JT to come around too.”
Once again, the apriori principle under discussion is the role of law in a proper government.
As stated before:
“Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud and violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves. No man can be forced to be rich or healthful whether he will or no.”
Quoting Locke’s views regarding children does not address the issue and only serves your purpose so much as being a red herring.
Again, on the distinction between the laws that a proper government can promulgate and that which it cannot:
Immanuel Kant: “All duties are either duties of right, that is, juridical duties (officia juris), or duties of virtue, that is, ethical duties (officia virtutis s. ethica). Juridical duties are such as may be promulgated by external legislation; ethical duties are those for which such legislation is not possible. The reason why the latter cannot be properly made the subject of external legislation is because they relate to an end or final purpose, which is itself, at the same time, embraced in these duties, and which it is a duty for the individual to have as such. But no external legislation can cause any one to adopt a particular intention, or to propose to himself a certain purpose; for this depends upon an internal condition or act of the mind itself. However, external actions conducive to such a mental condition may be commanded, without its being implied that the individual will of necessity make them an end to himself.”
Your notion of the State being delegated the power to enforce duties of virtue as if they were duties of right is sheer modern liberal fantasy.
NOT ONE of the founding fathers would agree with your argument.
Mespo-
You seem to be equating the marketing of the food with the consumption of the food. No, parents can’t guarantee that their children will not see advertising (though I’d argue they have more power than you might think). But for much of a child’s life, the parents do control what goes into their kid’s mouths. Happy Meals are targeted at fairly young kids, kids who don’t generally have the ability to purchase whatever food they want.
wow, so now we need to get involved in family nutrition for the good of the children.
How hard is it to read a book on nutrition. How many times a week do people eat at McDonalds to make this a problem.
Advertising is a form of mild to severe brainwashing for they try to convince you that you need something that, in reality, you probably don’t. The goal is to turn a want into a perceived need. Children are particularly susceptible to this kind of message as they themselves (and indeed many adults) haven’t learned to properly distinguish between “want” and “need”.
When advertising is directed at our most impressionable minds, it should absolutely be restricted if not banned altogether.
Proof?
It’s anecdotal but within my sample space more people of my generation know the words to the McDonald’s Big Mac song or that Burger King will let them have it their way than know their basic Constitutional rights.
Bob,Esq.:
“I agree with J.T.
And so does John Locke.”
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Now that we’ve got that Locke thing straightened out, I bet we get JT to come around too.
Locke perfectly understood his world of the 17th Century. He also understood the need to protect children:
“Children, I confess, are not born in this full state of equality, though they are born to it. Their parents have a sort of rule and jurisdiction over them when they come into the world, and for some time after, but it is but a temporary one. The bonds of this subjection are like the swaddling clothes they are wrapt up in and supported by in the weakness of their infancy. Age and reason as they grow up loosen them, till at length they drop quite off, and leave a man at his own free disposal.”
(…)
The power, then, that parents have over their children arises from that duty which is incumbent on them, to take care of their offspring during the imperfect state of childhood. To inform the mind, and govern the actions of their yet ignorant nonage, till reason shall take its place and ease them of that trouble, is what the children want, and the parents are bound to. For God having given man an understanding to direct his actions, has allowed him a freedom of will and liberty of acting, as properly belonging thereunto within the bounds of that law he is under. But whilst he is in an estate wherein he has no understanding of his own to direct his will, he is not to have any will of his own to follow. He that understands for him must will for him too; he must prescribe to his will, and regulate his actions, but when he comes to the estate that made his father a free man, the son is a free man too.
59. This holds in all the laws a man is under, whether natural or civil.”
(Second Treatise, ch. 6, 55-59)
Locke was not as simplistic as you suggest. He likewise understood that we are heirs to the past, not it’s prisoners.
Once again Mespo, you’re bleeding heart has led you over that Huxlean/dystopian line between proper and improper government.
I agree with J.T.
And so does John Locke.
“The care, therefore, of every man’s soul belongs unto himself, and is to be left unto himself. But what if he neglect the care of his soul? I answer: What if he neglect the care of his health or of his estate, which things are nearlier related to the government of the magistrate than the other? Will the magistrate provide by an express law that such a one shall not become poor or sick? Laws provide, as much as is possible, that the goods and health of subjects be not injured by the fraud and violence of others; they do not guard them from the negligence or ill-husbandry of the possessors themselves. No man can be forced to be rich or healthful whether he will or no.” John Locke, ‘A Letter Concerning Toleration’
Here are the facts on childhood obesity from teh CDC:
Childhood obesity has more than tripled in the past 30 years. The prevalence of obesity among children aged 6 to 11 years increased from 6.5% in 1980 to 19.6% in 2008. The prevalence of obesity among adolescents aged 12 to 19 years increased from 5.0% to 18.1%.1,2
Obesity is the result of caloric imbalance (too few calories expended for the amount of calories consumed) and is mediated by genetic, behavioral, and environmental factors.3,4 Childhood obesity has both immediate and long-term health impacts:
Obese youth are more likely to have risk factors for cardiovascular disease, such as high cholesterol or high blood pressure. In a population-based sample of 5- to 17-year-olds, 70% of obese youth had at least one risk factor for cardiovascular disease.5
Children and adolescents who are obese are at greater risk for bone and joint problems, sleep apnea, and social and psychological problems such as stigmatization and poor self-esteem.3,6
Obese youth are more likely than youth of normal weight to become overweight or obese adults, and therefore more at risk for associated adult health problems, including heart disease, type 2 diabetes, stroke, several types of cancer, and osteoarthritis.6
Healthy lifestyle habits, including healthy eating and physical activity, can lower the risk of becoming obese and developing related diseases.3
Seems like a reasonable restriction on commercial free speech to me in view of the epidemic of childhood obesity. I also think a constitutional argument could be made that limiting aggressive marketing to children is within the purview of governmental power to protect children when parents are powerless to do so. No one can patrol what kids see on billboards and TV all the time. The question is may a corporation market unhealthy dietary choices to those least able to resist while the government sits helplessly by?
Parents, undeniably have a role to play here, but the ultimate costs of preventable poor health are foisted on society as a whole whether under Medicare, Medicaid, or higher health insurance premiums and overburdened healthcare delivery systems. Does the constitution require that we ignore these problems and bankrupt ourselves under notions of due process, equal protection, etc.?
Give em a Twinkie….
…would not pass constitutional mustard . . . I mean muster.
I relish your posts professor.