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
I forgot the “Second” at the beginning of the second paragraph
Gyges
1, November 14, 2010 at 4:34 pm
Blouise,
How do the parents eat? Your conclusion only makes sense if the parents eat differently than the children.
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I honestly have no idea what you mean by that. First, I thought we were discussing poor nutrition and obesity in children and the manner in which advertisers contribute to the problem.
The suggestion that parents can easily prepare nutritious meals for their children makes perfect sense whether those parents decide to eat with the kids or not … yes, Virginia, even the too busy, lazy, and stupid can make a pot of soup.
Bob,
When you get a moment, check your e-mail. Part of our discussion should be taken offline so I have.
Bob,
First – See the second response. Your illogic is addressed there. As to equal protection, you’ll see how that’s addressed – piecemeal . . . at least until someone or some state sues the FDA and/or the FTC to force the issue of marketing food to kids globally. Rome wasn’t built in a day. The largest storms issue from the flapping of butterfly wings. Every journey begins with one step. Blah blah blah. And just because a company can challenge something? It doesn’t mean they’ll win.
Second – Kool-aid is tasty. It’s also not good for you.
Finally, as to the lovely?
Hey, you’ve earned it by putting words in my mouth. That annoys the Hell out of me coming from people who should know better. In case you forget, I jumped Slarti for doing that exact same thing on the 9/11 threads. What’s good for the goose is good for the gander. Consider it a reflection of equal protection in a operation.
back to that is.
Steelers Patriots …
Buddha: “The goal is legitimate. The regulation is reasonable if not all inclusive. Today? It’s removing toys from junk meals served in fast food restaurants. Tomorrow? Kellog’s can start to worry. Then Continental Bakeries. And so on.
Addressing this problem is like eating a large meal in itself: it will have to be done one bite at a time.”
And there it is.
Welcome to the desert of the real.
Buddha: “Legitimate objective? Reducing health care costs and encouraging good health via removing incentives to eat junk as a matter of public policy are both legitimate objectives.”
First, assuming the legitimacy of the aforesaid objective, just how is the current legislation rationally related to achieving that objective? Banning the sale of toys with fast food isn’t a tad short of achieving that objective? Every other company peddling their form of malnutrition gets a pass except for fast food restaurants? Why? Because you saw a movie called “Super Size Me?”
Buddha: “I see zero due process issues and tangential equal protection issues here, Bob.”
So I’m high on the same Kool-Aid that J.T.’s bee drinking?
Buddha: We’re talking about regulation of corporate speech, not private speech, and in the context of advertising.
Let’s not forget that the law banned the product; not its advertisement. And yes, the toy is part of the product. Furthermore, even if the topic was simply commercial speech, the law must be applied evenhandedly; not just on the companies you don’t like.
Buddha: If we were talking about private speech, there might be equal protection issues concerning regulation of speech, but we’re not talking about private speech.
Come again? So the state may gag one corporation from engaging in advertising its product while allowing another corporation to advertise the same type of product in the same fashion–because we’re not ‘talking about private speech?’
No Equal Protection problem there; right?
Buddha: “And as long as equal protection is brought up, how is protecting children from predatory marketing practices any different than protecting any other consumer from predatory practices?”
Is that what Equal Protection means? Really?
Funny, here I am thinking the Equal Protection clause ensures that states must apply the law equally; you know, without giving preference to one person or class of persons over another.
Silly me.
Buddha: “And I’ll keep calling you full of shit as long as you keep acting like you’re full of shit.”
Lovely.
Bob,
The flaw in your logic is your all or nothing approach. It’s a global problem but that doesn’t mean you can’t address it with multiplexed incremental solutions. You seem to think all global problems require global solutions and that, Dear Pants Load, is a fallacy of composition.
Some global problems require global solutions, but not all global problems require global solutions and indeed the very nature of some problems discourages global solutions . . . just like this problem.
Therein also lies your false dichotomy. “All or nothing” is by it’s very nature a false dichotomy. Reality isn’t binary, but analog. Extremes are called extremes for a reason – they are rarely the real world solutions. Ergo all or nothing solutions are the exception not the norm. This is an analog problem and as such requires an analog solution. The efficacy of the solutions in toto is another issue, but efficacy should be maximized in seeking solutions to any problem (keeping in mind the constraints against perfection inherent in mathematics). If you can’t maximize in one fell swoop? You maximize in smaller steps.
The goal is legitimate. The regulation is reasonable if not all inclusive. Today? It’s removing toys from junk meals served in fast food restaurants. Tomorrow? Kellog’s can start to worry. Then Continental Bakeries. And so on.
Addressing this problem is like eating a large meal in itself: it will have to be done one bite at a time.
Legitimate objective? Reducing health care costs and encouraging good health via removing incentives to eat junk as a matter of public policy are both legitimate objectives.
I see zero due process issues and tangential equal protection issues here, Bob.
We’re talking about regulation of corporate speech, not private speech, and in the context of advertising. If we were talking about private speech, there might be equal protection issues concerning regulation of speech, but we’re not talking about private speech. We are talking about advertising – commercial speech that, while protected, is indeed regulated. And as long as equal protection is brought up, how is protecting children from predatory marketing practices any different than protecting any other consumer from predatory practices? It’s not, but it is an equal protection issue if you aren’t protecting the children simply because they are children.
And I’ll keep calling you full of shit as long as you keep acting like you’re full of shit. Or have you forgotten the experience of the 9/11 threads? I will call them like I see them whether you (or anyone else) like(s) it or not. You have yet to construct an argument that’s persuasive either legally or as a matter of public policy. Wordy, sure, but persuasive no, and in common parlance that means you’re still a pant load on this one.
Buddha: “Offering a child a toy with anything is an inducement.”
So the fuck what.
Buddha: “In this instance, the toy is an inducement to eat junk food.”
Junk food? You mean like toys in cereal boxes? How fair and even of you.
Buddha: “Ergo removing the toys from the marketing equation removes the incentive to eat junk food to the child.”
Again, state the legitimate objective. The foregoing suggests that you deem the state has a legitimate objective in keeping children from eating junk food. Thus why else ban the advertising?
Buddha: “Does single malt always after your basic logic this badly?”
Show me the flaw in my logic; i.e. without simply resorting to insults.
Buddha: “Offering a child a toy with X is not an inducement?”
Spell it out so you hear yourself.
What is your legitimate objective?
Every objective you’ve hinted at has been global in nature; but your legislation targets fast food purveyors only as if they were the only ones using advertising to target children to eat their ‘unhealthy’ food.
You mean to tell me you don’t see any due process or equal protection problems here?
Tell me again how full of shit I am; it’s such a convincing counter-argument.
Here you go:
The goal is to remove incentives to eat junk food.
Offering a child a toy with anything is an inducement.
In this instance, the toy is an inducement to eat junk food.
Ergo removing the toys from the marketing equation removes the incentive to eat junk food to the child.
Does single malt always after your basic logic this badly?
Fails the rational relation test?
Offering a child a toy with X is not an inducement?
You really are pants load today, Bob.
James M.: “That this bill doesn’t address the whole problem is clear, and irrelevant.”
Ready?
If the bill doesn’t fit its allegedly legitimate objective then it fails the the rational relation test.
Mespo,
Sorry for the delay.
Mespo: “Your statement that, “The government is doing the deciding/parenting for the parents while placing a restriction on the company under the pretense that IT and its toys are solely responsible for childhood obesity,” is flawed. The ordinance is not saying that McDonalds’ Restaurants and its toy inducements are “soley responsible for childhood obesity.” It’s saying that marketing nutritionally bad food to children by means of toy inducements is PART of the childhood obesity problem, and that this particular legislation is addressing that specific issue. Because one can’t do everything in one piece of legislation doesn’t mean it can’t do something.”
No Mespo, as I stated before, if you’re going to make the claim that this type of advertising is ‘part of the problem’ then you must legislate as such. That means you legislate against the advertising as it applies to all foodstuffs. Anything less is a contradiction of your allegedly legitimate objective.
Mespo: You are setting up straw men to knock down with your extreme characterizations. It is a false dichotomy to suggest the choice is between being completely paternalistic and doing absolutely nothing at all about this universally acknowledged problem.”
I didn’t set up such a dichotomy. However you just set up one right there and attributed it to me; how ironic.
I said there’s no rational relation between the law and its allegedly legitimate objective.
Mespo: “The fundamental question is do you believe the government has any role to play in protecting children from the harmful effects of advertising?”
Of course; witness the banning of Joe Camel. However, cigarettes, unlike fast food, are an inherently dangerous product.
Mespo: “If not, your position is consistent, if not morally defensible. If so, you reside in James M’s camp with me, disagreeing only in degree.”
Not sure I follow.
And what James said.
Bob,
Didn’t put words my mouth? Words like “prime”? And the all or nothing false dichotomies?
Lie to yourself much?
Again, but this time, not so nicely – screw you.
I could give a damn at this point about your assessment of my logic.
If you want to take this up further, we should take it offline, but for now?
I stand by my assessment you’re full of shit on this topic, Bob.
You got a problem with that? That would be your problem.
Bob,Esq.,
Your own personal penchant for universal maxims is not a constitutional requirement. I’d be in favor of that type of blanket ban on advertising aimed at children, but supporting such a total ban isn’t necessary for supporting this particular reform. It certainly isn’t required in implementing it.
If you’d like to make a legal argument about the validity of the ban, I’d be happy to respond. I don’t feel the need to defend why this step should be the first to be taken until you do so, however, because there honestly are several that could have been the first. That this bill doesn’t address the whole problem is clear, and irrelevant.
Buddha: “as if? Your misconceptions are your problem. Especially since you’ve insisted on putting words in my mouth.”
No misconception and no insertion of my premises into your argument. I made a statement describing how narrow your reasoning was to your apparent goal. To legislate only against fast food child advertising is to act as if fast food has a monopoly on advertising non-nutritious food to children via toys and gimmicks.
Buddha: “As to my abilities to distinguish lawful from unlawful?”
No; I asked you if you saw the procedural problems you’re opening up with this type of legal ‘reasoning.’ This is why we have a rational relation test.
Buddha: “You’re inability to pull your head out of Kant’s ass and recognize that children are not adults and that exploiting them for profit at the expense of their health by using toys as bait is ethically indefensible compared to censure of commercial speech directed at them by a fiction would be your problem.”
You sound like Helen Lovejoy of the Simpsons: “Won’t somebody please think of the children!” Children don’t have power of the purse or any say as to how their parents will bring them up. Please refrain from getting hysterical at the mere mention of children in the equation.
Furthermore, as I said before, if you want to get on that high horse with a scintilla of integrity, then you’ll have to set your sights on ALL ADVERTISING THAT PIMPS PRODUCTS, WHICH IF CONSUMED IN EXCESS CAN BE UNHEALTHFUL, TO CHILDREN WITH TOYS AND CARTOON CHARACTERS. You know, adopt a maxim that you would will to become a universal law.
Me: “If you’re going to claim that purveyors of foodstuffs should not use toys, cartoon characters, etc., to sell children non-essential foods, THEN YOU MUST DO IT ACROSS THE BOARD. Cookies, cereals, canned pastas, all their cartoon spokesmen and TV tie-ins, you name it.”
Buddha: “And I’d also have no issue with that restriction on commercial speech either. It’s not only the logical extension of the argument, but an even more substantive step to addressing the issue: don’t target children for food ads just like we don’t allow targeting them for tobacco and booze and instead leave the totality of the decision about what to feed a child to the parent without some company whispering sweet nothings in a child’s ear.”
The logical extension of your argument is illogical because your base argument is illogical to begin with. Just like your argument, you’re rife with contradiction. One minute you’re saying that the food is inherently dangerous while equating it with tobacco and alcohol as you did above. The next you’re saying that you never advocated not selling the food to children. And you wonder why I have problems with the reasons given in suport of this law?
Buddha: “We have myriad laws – good ones too – designed to protect children from adult predation. That a lot of bad laws have been enacted in that same name is irrelevant.”
How does the foregoing justify your reasoning in this case? You have yet to establish a rational relation between the law as passed and your allegedly legitimate objective. Why, because the passage of this ridiculously specific law necessitates a resultant ‘objective’ that is so narrow in scope as to strain credulity as to how it would ever pass muster under the rational relation test.
Buddha: “In this thread, you have displayed every single bad habit you’ve accused Slarti (and others) of in the past.”
Really?
Buddha: “Straw men. False dichotomies. Inserting premises into others statements. Being evasive of question you don’t like.”
As I’ve shown, I did not insert any premises (straw men) into your argument; I merely made fair comment as to its narrowness. Further, reminding you that laws should be promulgated with the categorical imperative in mind is hardly a false dichotomy.
Again: To legislate only against fast food child advertising is to act as if fast food has a monopoly on advertising non-nutritious food to children via toys and gimmicks. Not very rational.