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
Why didn’t the city attempt to ban the sale of “kid’s meals” that failed to meet an established nutritional standard? Had they done so, I could not foresee any legitimate legal challenge. It would have been entirely within the authority (or by charter should have been) to create such an ordinance.
Is there a way to achieve the objective without attempting to regulate commercial speech? The answer is definitely yes (if the objective is to restrict the sale of a product that is perceived to be inherently dangerous).
This ordinance is meant to control how an unrestricted product is marketed. It does not address to whom it is marketed, but how it is marketed. (Don’t tell me I can’t find a way to effectively market to children without the need to include a toy. The ordinance itself permits/promotes giving away online play time (additional sedentary time), while it ignores the possibility of including a toy that would promote increased cardiovascular activity (i.e. a bouncing ball)) If we permit the unrestricted sale of a product, we must also permit that product to be marketed in a way that permits the seller to achieve maximum sales, as long as such marketing does not include misrepresentation, while conforming to any mandated warnings. It must always fall on responsible parents to prevent the child from consuming so much of the product that it becomes a health issue.
Too many of these ordinances are created as if no parental supervision is necessary. Imagine all the products readily available to children in which a lack of parental control/supervision would make them dangerous. What protects the child from these products? Parents.
Bans, like the one proposed in San Francisco, are the legislative acceptance of parental neglect. Parents who fail to provide their children with proper nourishment (while having the means to do so) are guilty of neglect. Having the money to spend on the Happy Meal should be sufficient evidence of having the means. Abuse (too many of these unhealthy meals) should be recognized as parental neglect. This is just one more example of society who refuses to accept personal responsibility. The “they made me do it” attitude of the parent will surely become the “I couldn’t help myself” of the next generation.
It’s the commercial! Turn off the TV, parent. If, for some reason, that is conceived to be beyond your authority or capability, maybe you should attend the next watcher-teacher conference. It’s more than just biology or legal standing. It’s about accepting the responsibility of raising a child. Your child!
Other than when it is the result of a medical condition, obesity starts at home. Reasonable portions in the proper environment is the first step to combating the obesity problem.
I still, more often than not, find the major contributor to childhood obesity to be an unstable environment. One in which the parents just don’t want to hurt their child’s feelings by saying NO. When the parent is taught how to say NO, the result (from what I have seen) is a happier child. When that happens, many of the child’s other problems would seem to magically disappear too.
Kids are often turned off by the name or appearance of food. Sometimes the smell of it cooking is enough to turn the child away. Change the name and try again. Hamburger (yes, I have a nephew who didn’t like hamburgers) can be called a “Bob the Builder Burger”. Don’t ask if they want one. Ask how many. Years ago, my nephews didn’t want anything to do with a ham, salami, and cheese sandwich. That quickly changed when presented with a “Hammy-Slammy-Sammy”. And we wonder why kids have a desire to consume the “Happy Meal”? Creative marketing can work at home too.
My son used to go to McDonalds for lunch once awhile after pre-school with a group because they had a large playground there. Sometimes the kids get exercise after they eat the happy meal. I cooked elaborate meals from scratch for dinner. Both of my kids refused to eat soup when they were young, Blouise. My daughter didn’t want McDonalds. She begged for bagel dogs. I tried not to be rigid with the kids and their food. One can go too far, and the kids can develop eating disorders especially the girls. Chipotle has pretty healthy food if you want to eat fast food.
On the power of habits:
[youtube=http://www.youtube.com/watch?v=FaO3aGmuNFc&fs=1&hl=en_US&rel=0]
Blouise,
I know what your saying. You’ll notice I addressed the clarification of your views rather than my flawed interpretation. I even quoted it directly. I correct myself when I’m wrong, and did so in this case.
I just believe you haven’t thought your condemnation through. I could be wrong, which is why I asked the questions you deflected rather than answering. Would you say that the issue with Father B is that he’s too lazy to put sunscreen on the child? If not, why would you apply that to cooking for the child? If sunscreen is a big stumbling block for you, we can change it: a coat before going on a walk on a chilly day would work just as well. If there’s no difference between how the man treats himself and his child, why would you assume that the child is the issue. It just makes no sense to me.
Now if you have any questions for me I’ll gladly answer them. I’m more then willing to clarify my points, or provide evidence for them. I don’t presume to tell you what you think, please extend me the same level of respect.
As a sign of good faith:
There are two related questions here, Why would a parent choose to go out to eat and why do they choose a particular restaurant? The law addresses the second, we’ve been discussing the first.
Now, how would the changing the second change the first? People can get trained to go places, then they rationalize why they go there. Let’s say I’m trained to go to McDonald’s by my kids (plus we all get hooked on grease and sugar). Rational wise I’ve got a problem, the food’s terrible, it’s not all that cheap, and few people ever admit to being manipulated by whiny kids. Thanks to all those cookbook\shows that you mentioned early as well as countless kitchen gadgets, marketing for junk food, frozen dinners, etc. we all think that food should be convenient as possible. I naturally hit on Convince as my justification.
Now if my kid never starts begging to go there to get the toy, I don’t get trained to go there, and I no longer have to rely so heavily on convenience as my motivation. As a result my kid (hopefully) no longer grows up thinking of convenience as a primary consideration in food choice, and perhaps part of the cycle of poor eating habits (which I think we’d agree is part of the problem in regards to the obesity epidemic in the US) is broken.
Mespo: “This really is unfathomable to me. We were discussing the scourge of advertising to children, which you admit is fair game for government regulation, at least with respect to inherently dangerous goods.”
Three words: legitimate state interest.
Mespo: “The SF ordinance you criticize is applied equally to all vendors of fast food, which in the context of our national childhood obesity crisis could qualify as an inherently dangerous good.”
Laws must be rationally related to a legitimate state interest.
Your allegedly legitimate state interest is to curb the childhood obesity crisis in this country.
Is there a rational relation between your objective and the law as promulgated? Let’s see. Is fast food the sole, primary, main or significant cause of childhood obesity? Assuming you could outlaw the advertising AND the food, what of lack of exercise and the ingestion of all those excess calories that are not fast food? The rational relation seems to be missing here. In fact the only connection between the law and your alleged legitimate objective is that it expresses a moral disapproval of fast food.
Equal Protection problem? You bet. Just as “moral disapproval is [not] a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy” (Lawrence v. Texas) so to that moral disapproval of fast food using toys to market their food of questionable nutritional value while failing to punish other food vendors using the same tactics to peddle their brand of allegedly ‘childhood obesity inducing fare’ is not a legitimate state interest.
Kilgore: Smell that? You smell that?
Lance: What?
Kilgore: [Political corruption], son. Nothing else in the world smells like that.
(kneels)
Kilgore: I love the smell of [political corruption] in the morning. You know, one time we had a hill bombed, for 12 hours. When it was all over, I walked up. We didn’t find one of ’em, not one stinkin’ dink body. The smell, you know that [porcine] smell, the whole hill. Smelled like
(sniffing, pondering)
Kilgore: [Washington and rancid bacon]. Someday this war’s gonna end…
Your idea comes down the road … after the politicians have pocketed all the money that came from my idea.
Buddha,
My idea for financing could start a lot sooner than that … allow the tax break for the wealthy to expire and use that money … anyone who objects is anti healthy American children.
Blouise,
“but put the real pressure on the parents and the family for in the end it is their responsibility to nurture healthy children.”
That’s where subsidies for healthier food and/or taxes on unhealthy food come into play, both from the consumer and the seller/manufacturer standpoints.
mespo and Buddha,
Ok, I read the Executive Summary – Food Marketing to Children and Youth and I paid particular attention to the following due to the subject of this thread:
Recommendation 4: The food, beverage, restaurant, and marketing industries should work with government, scientific, public health, and consumer groups to establish and enforce the highest standards for the marketing of foods, beverages, and meals to children and youth. (Assure that licensed characters are used only for the promotion of foods and beverages that support healthful diets for children and youth.)
This recommendation, along with others not quoted here, was developed from the data available for children ages 2-11. I found the following to be of interest:
The family is the first socializing agent, as parents and older siblings act as sources of information and provide social support and pressure that affect children’s behaviors.
Virtually all children ages 2–18 years now live in households with a television, and more than half of today’s children and youth report that their families have no rules for television viewing.
Concern about young children’s limited ability to comprehend the nature and purpose of advertising, and about the appropriateness or impact of food marketing to which younger children might be exposed, led to a Federal Trade Commission (FTC) rulemaking process in the late 1970s on the question of whether advertising to young children should be restricted or banned as a protective measure. Congress eventually intervened, and the FTC terminated the rulemaking in 1981.
I completely agree with the following:
Parents and families remain the central influence on children’s attitudes and behaviors, and social marketing efforts that aim to improve children’s and youths’ diets therefore must be tied directly to that influence. (Although children’s choices are strongly influenced by their parents and siblings, they are increasingly making decisions at younger ages in the marketplace, either in ways that are independent of parental guidance, or as agents influencing the choices and purchasing decisions of their parents and caregivers.)
I better understand the concern about the marketing practices directed towards children and the desire to modify these practices especially as it pertains to healthy foods. I did find one suggestion that healthy foods be given prominent placement on grocery shelves a direct invitation to battle. My neighbor works in this field, Product Placement, and he had a really good laugh when I asked him for his impression on this one issue.
I suppose that eliminating the toy from a Happy Meal sends a message but shouldn’t playgrounds on the premises also be outlawed? McDonald’s deals in hamburgers, French fries and milkshakes … there isn’t too much that can be done to increase the nutritional value of those three items. Potato Chips have no real nutritional value, either do pretzels or popsicles or popcorn or certain ice creams or marshmallows or candy bars or syrups or … the list of those not permitted to market their product to children will be huge. (Remember what happened in 1981)
In the end, I’m going to go with “Parents and families remain the central influence on children’s attitudes and behaviors, and social marketing efforts that aim to improve children’s and youths’ diets therefore must be tied directly to that influence.”
Does anyone honestly believe Congress will do anything that restricts the ability of businesses to make money? That’s whistling in the wind. So why not do something that may actually work … huge, on going ad campaign that educates adults and kids about the harmful effect a steady diet of these foods. Repeat, repeat, repeat … month after month, year after year … put supreme effort and tons of tax dollars into the program, and advertise on all mediums constantly.
Remove the toys, eliminate the playgrounds, stock the shelves accordingly, restrict the advertising, but put the real pressure on the parents and the family for in the end it is their responsibility to nurture healthy children.
BBB:
“Mespo,
Do you agree with Buddha’s analysis of the first two tests?”
*******************
In the main, I agree with Buddha’s analysis but I disagree with his conclusion that the first prong has not been met. While predatory marketing to children is pernicious, I do not think it is yet unlawful and it is not misleading in a legal sense. Certainly, in a broad sense anything that superficially prompts a person to do one thing but actually seeks another action is misleading. In a legal context the word means “deceptive or likely to deceive” though. It’s a close call, but I part company with Buddha here, and believe that the frame of reference is whether the practice would deceive a reasonably prudent adult and not a child. Thus I agree with you that the practice likely has First Amendment implications as a threshold inquiry and is not active fraud which is never protected by the First Amendment. I do agree with Buddha, however, that the ordinance meets the requirements of the three other prongs and is constitutionally permissible.
BBB:
“(Have you ever tried to maneuver a car while your child was screaming that he wanted rum? Yes. That was a friendly poke at Mespo. :)”
**************
Would that include my fraternity brother?
Buddha,
The smart cook doubles the soup recipes which adds about 15 minutes to the prep time and gets enough for 2 weeks meaning that on the Saturday (I’m assuming the cooking is done on a Saturday) after the soup prep Saturday the cook can spend three hours doing meat loaf, tuna cassarole, spaghetti sauce, beef stew, and chili … freeze and have, depending on the amounts prepared, dinners for an additional 5 to 10 nights. The following two Saturdays are free from cooking because the month is taken care of.
Oh, and by the way … those kids that I’m not talking about … you know, the ones whose parents buy a Happy Meal for them occasionally as a treat and the toy is part of the treat … they’re the ones who will be madder than hell at a government that is once again dumbing everybody down to the lowest common denominator.
But I have to finish mespo’s link before I can state that with authority because after reading, I may see the sense in what mespo and Buddha are supporting.
Gyges,
I responded to your assertion that I was saying something much milder than what I actually said:
“That they consider food as a nuisance that they have to make time for is telling.” (Gyges assertion as to what I said)
“Nope … that was not my contention.
Mine was far harsher … it is not the preparation of the food that is the nuisance, it is the preparation of the proper food for the child that is the nuisance (the child is the nuisance). Advertising is the handy excuse for said behavior, not the reason for it.” (What I actually said)
Gyges you are arguing a point about society’s relationship to food (your post November 14, 2010 at 2:36 pm) and trying to fit my points about advertising to children, children’s obesity, and parent’s responsibility to counter that advertising thus improving nutrition for their kids and relieving obesity into your argument. It doesn’t fit.
Now I could argue society’s relationship to food by countering with the popularity of the Food Network and shows like Rachael Ray’s 30 minute meals and other similar programs. I would suggest that the parents who watch these sorts of shows and buy the cookbooks are not the ones sitting in line every night at the fast food joints.
I would further suggest that those parent’s children aren’t the ones throwing temper tantrums over Happy Meals because fast food is probably something they only get occasionally. Preparing proper meals for their children is not a nuisance, taking proper care of their children is not a nuisance … ie the kids are not seen as a nuisance. That’s what I would say if I were arguing about society’s relationship to food … but I’m not so I won’t.
I still haven’t finished reading mespo’s link (’cause you keep interrupting me!) so I’m not 100% certain that these same children I’m not talking about have not been adversely affected by the advertising directed at them by corporations.
Now, as to society’s relationship to sunscreen … I have no opinion other than to say sunscreen is probably a good idea for everybody unless of course it isn’t. If it is a good thing and manufacturers advertise it to children as something that will make them super heroes thus causing those children to throw temper tantrums in stores and forcing their parents to buy and apply said sunscreen to their young bodies … is advertising directed at children then a good thing … even though the child never reaches super hero status? (IMO, in your example Father A and Father B are both putzes and should be thrown in the lake … I give you Father C who puts sunscreen on his kid but not himself or the best Father, Father D who puts sunscreen on himself and his kid.)
Blouise/Gyges,
Also soups lend themselves well (generally) to freezing, thus allowing another efficiency if you make larger batches.
Bob,Esq:
“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.”
**********************
This really is unfathomable to me. We were discussing the scourge of advertising to children, which you admit is fair game for government regulation, at least with respect to inherently dangerous goods. The SF ordinance you criticize is applied equally to all vendors of fast food, which in the context of our national childhood obesity crisis could qualify as an inherently dangerous good. Notwithstanding that factual determination, if you want to make a broader application to other products marketed to children, I’m with you in that endeavor as the research I posited suggests. My problem is I don’t see how it follows that you must legislate against advertising applied to all foodstuffs, presumably even those marketed to adults. I have no problem if Moet wants to shrink wrap a Christmas ornament to a bottle of champagne since that item is not marketed to children. The SF ordinance is tailored to the problem it addresses — predatory marketing to children of unhealthy foods.
Again, I think Buddha hits the nail. You’ve adopted an all or nothing approach when an incremental approach will do nicely — and lawfully.
Nowhere is there a requirement that a piece of legislation address every facet of a problem (Should we repeal usury laws because they don’t address every facet of financial exploitation of the poor?), merely that it be fairly and equally applied and have a compelling rational basis for its prohibition when measured against the commercial interest at stake.
Surely this process involves legislative value judgments and the courts will, on First Amendment grounds, require compliance with the 4 part test, but to suggest that all food must be so regulated under notions of due process or equal protection turns those concepts on their heads.
James,
I just said almost that exact thing in an e-mail to Bob, ergo seconded.
Here, I’ll share that part of the text:
“I have no unwillingness to believe what you argue [. . .] I just simply don’t in this instance. While I’ll stipulate it invites equal protection questions, I do think they would be resolved in a segment by segment manner at least initially. Now if this legislation targeted ONLY Micky D’s, I’d be on board with the equal protection argument right now, but it doesn’t. It applies to all fast food vendors in the area. A food distributor/manufacturer like a cereal company, although they sell food, is not the same as a prepared food vendor. Healthfulness of food depends on preparation and serving as much as ingredients. The legislation would almost by the nature of the differences in the businesses models and mode of delivery have to be done in a segment by segment manner until a critical mass was reached to raise the issue of globally targeting kids with food advertising. Home service of food to a child always offers more opportunities for parental control than restaurant dining because a parent can control not just portion size but accoutrement to offset any nutritional deficiencies. In the long run, I think what I’ve said will lead to more parental control, but I also think it’s these very differences in the businesses themselves that you are not taking into account in your “all or none” scenario. The reality is one rock is needed to be rolled to start an avalanche. In this case, the rock is the fast food vendor business segment. I’m all for personal liberties and you know this, but I don’t see how restricting advertising – not sales – impacts personal liberties. [. . .] Like I said, a parent can choose to serve the kids a diet of bacon, salt licks and sugar cane, but targeting a kid with ads for a ‘Happy Sweet & Salty Pig Meal’ with free Star Wars toys is putting pressure on the kids to ask for or demand that diet. We aren’t talking removing the items from circulation or consumption by parental choice, just not allowing advertising to encourage bad choices by citizens you’ve stipulated have reduced capacity. It’s mitigation, not remedy, but it can be part of a remedy coupled with other tactics. I hope that clarifies what I’ve been saying.”
Bob,Esq.,
You mean to tell me you don’t see any due process or equal protection problems here?
The law is not just targeting McDonalds, it applies to all fast food restaurants, including McDonalds, Burger King, Wendys, Arbys, and Hardee’s (who all have toys with kids meals). Having it apply to some similarly situated companies and not others, would allow for a legal challenge, but that isn’t the case here.
Blouise,
Say we have two Fathers going to the beach. Father A puts sunscreen on himself and not his kid. It makes sense to assume that the lack of sunscreen on the kid has something to do with his attitude towards his kid. Father B doesn’t put sunscreen on himself or his kid. Would you really say “it is not the application of the sunscreen that is the nuisance, it is the application of the sunscreen on the child that is the nuisance (the child is the nuisance)” about Father B?
If not, then why would you say “it is not the preparation of the food that is the nuisance, it is the preparation of the proper food for the child that is the nuisance (the child is the nuisance)” about a father that eats the same food as his kid?