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
BBB: As the Court stated in Fla. Bar v. Went For It, Inc. (515 U.S. 618) “[the legislating body’s burden] is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”
I don’t think San Fran can meet that burden.”
You’re absolutely right. The lack of any nexus whatsoever between the legislation and the alleged legitimate state interest is also why it fails the rational relation test.
Banning the advertising does NOTHING to alleviate the problem (of childhood obesity) addressed because Happy Meals are not even a drop in the bucket to all the actual causes of said problem–and that assumes you can make the argument that the state has a legitimate interest in dictating the lifestyles of its citizens.
BBB,
“I don’t think San Fran can meet that burden.”
Okay. You’re wrong. But okay.
1) harms it recites are real
I’m not going to argue the medical evidence against a high fat/sugar/salt diet and I don’t think you would either. I’ll mark that “stipulated” but feel free to object.
2) and that its restriction will in fact alleviate them to a material degree.
The above evidence combined with the rational extrapolation of the research mespo relayed about the psychology of advertising in children can be argued as a remedial step in mitigating demand for junk food by children by removing the enticement of advertising from the flow of information – psychological input – they are exposed to as matter of the sheer volume of exposure in the information age. Material is a matter of degree and efficacy solely by removing the advertising is a moot point since the state can provide evidence that it also has other programs in place to combat obesity in combination with policies like the testing of anti-obesity programs by Stanford Stanford’s Girls’ Health Enrichment Multisite Studies and Governor Arnold Schwarzenegger push to fund and cooperate with DHS in a comprehensive anti-obesity initiative that is also underway (for starters but I’m sure there are more examples as well of state sponsored health initiatives that could be rolled into this argument). The removal of the advertising has a rational relationship to the goals of the DHS and other program(s) and in fact is designed to operate as a component of the state strategy to reduce obesity ergo the removal of the advertising is aiding in the material reduction of obesity be removing incentives for consuming junk food shouldn’t be the ad bans material effect in a vacuum but rather as part of the whole strategy.
Gyges,
So be it means I won’t argue with you further but do not think from that comment that I accept your characterization of me as self-righteous.
I fully accept that that is how you see me.
Over and out … I have to go polish my smugly moralistic glasses so that I may look at the world from a lofty yet narrow-minded viewpoint.
Swarthmore mom,
Luckily I didn’t have that problem (exhaustion)so fast food wasn’t a necessity at any time. Perhaps the children missed something by my not taking them to McDonald’s but I don’t really think so. I wouldn’t let them watch MTV either until they were old enough to understand the difference between lyrics and reality.
I don’t see any harm in occasional fast food, even though we never ate it … if the kids could get themselves there and were willing to pay for it out of their own pocket, they could go. It never became a habit for them. And thus the subject of this thread, toys in Happy Meals, was never an issue.
It was the advertising to children that I had never really considered and now have.
“Should parents feed their kids well? Absolutely. Does their failure to do so mean they view their kids as a nuisance? I doubt it. All you do by insisting otherwise is come across as self righteous as everyone else who insists that people who don’t raise their kids “The right way” don’t really love them.” (Gyges)
=========================================================
So be it.
BBB,
So the nanny state making sure you’re not feeding your children too much junk food is fine, but stopping pernicious advertising that tries its damnedest to lure Americans into making unhealthy choices? Das ist verboten!
Gyges,
Pardon my intrusion.
You said to Blouise “Should parents feed their kids well? Absolutely. Does their failure to do so mean they view their kids as a nuisance? I doubt it. All you do by insisting otherwise is come across as self righteous as everyone else who insists that people who don’t raise their kids “The right way” don’t really love them.”
What do you call it when parents (who have the means) consistently fail to feed their kids meals that meet minimum nutritional standards? I call them negligent. The reason(s) behind the negligence are varied, and not necessarily nefarious, but negligent nonetheless.
I don’t think it’s self-righteous to insist on minimum standards. Loving parents can and do, do the wrong thing when it comes to their child. When doing the wrong thing endangers the child’s welfare, society has a duty to step in…but not before.
BIL,
As the Court stated in Fla. Bar v. Went For It, Inc. (515 U.S. 618)
“[the legislating body’s burden] is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”
I don’t think San Fran can meet that burden.
The toy will still be marketed to children. The benefit of going to McDonalds will still be marketed to the children. You see, children don’t read the fine print or pay attention to exactly what food is used in the commercial. They see Toy – McDonald’s –Happy Meal. They miss the part that says “Only included with healthy meals”. Once they are there, it will be the parent who submits to the will of the child and purchases the meal the child wants. The only difference being (I suspect) is that the unhealthy meal will sell for 50 cents less, and the toy will cost 50 cents. (status quo maintained)
It is pure flight of the imagination to think the parent who wasn’t willing to provide direction before the ban will discover some new-found capability just because the toy wasn’t included in the meal that the child desires. I admit that the toy provides an inducement, but that incentive is not removed when the toy is still available for purchase. It just means that the parent will have to purchase it separately.
Parents take their children to McDonalds because they know the child will eat the meal. They do so because they know it tends to avoid the mealtime fight. Ask Mespo what it will be like when you try to explain to Little Johnny (age 4) that his meal of choice doesn’t come with the toy, but his sister’s does. Result: Little Johnny gets the meal he desires, and the toy is purchased separately.
In short, what the proposed San Francisco ban does (for sure) is regulate commercial speech (in hopes) of achieving a desired effect. I think that falls far short of the burden established in “Went for it”. There is no proof that the goal of reducing the consumption of unhealthy food by children is accomplished by this regulation.
Blouise,
The fault is that you ascribe motives based on what you think people should and shouldn’t do and know. People behave against their own goals and self interest all the time.
I don’t buy the rational and informed actor when we’re talking about economics and I don’t buy it when we’re talking about choosing what’s for dinner. To paraphrase: we’re not a race of rational tool makers, we’re a race of after dinner rationalizers.
Should parents feed their kids well? Absolutely. Does their failure to do so mean they view their kids as a nuisance? I doubt it. All you do by insisting otherwise is come across as self righteous as everyone else who insists that people who don’t raise their kids “The right way” don’t really love them.
BBB,
“Here’s where you fall . . . “if the objective is to restrict the sale of a product that is perceived to be inherently dangerous”.
Faulty premise.
The object isn’t to restrict the sale, but rather the advertising”
I guess I fail as well, I thought restricting advertising would restrict sales. Isn’t advertising used to increase sales? So wouldn’t a restriction on advertising reduce sales? If it didn’t I think a good many Madison Ave. types would be looking for other means of employment.
So I think you are correct, the ultimate goal is to restrict the sale of fast food by restricting advertising.
I think maybe we ought to limit advertising for cars and airlines, they are definitely inherently dangerous and swimming pools as well as doctors.
The more you think about it, the more farcical it becomes. Pretty soon we will outlaw advertising for bananas because you might sell one to child who leaves the peel on the floor and slips on it.
James M Yes, it’s not fabulous Mexican food, but it is pretty good and they try to make it healthy. They are expanding rapidly.
Swarthmore mom,
Is that http://en.wikipedia.org/wiki/Chipotle_Mexican_Grill you’re talking about? I’ve never been, but I think I have one by my house.
I looked up the calories in a happy meal hamburger with fries. It has 500 calories if the child has a diet soda or 550 with a skim milk. bdaman Hormone free chicken,eggs,beef,milk are all important. Chipotle is a fast food place that serves hormone free and organic products. The salsas aren’t too bad either.
It seems like the underlying issue is obesity and kids with poor diets. I wonder how many Happy Meals a family buys in a week/month.
As far as regular eating habits are concerned, how much of a role does growth hormones play that are injected into animals in order to bring them to slaughter sooner. I think you’ll find that this is one of the primary causes of obesity. That and all u can eat Chinese Buffet, Golden Coral and the likes. As the twinkie diet shows it’s all about the calories. Heh row, how r u ? sweet tea?
Blouise My kids both live in cities where the restaurants serve mainly organic food. They don’t have to eat in chain restaurants. They have both turned into very good cooks. They shop at farmer’s markets, co-ops, and the whole foods. What I am saying is a little fast food does not necessarily ruin one’s dietary habits for life. I ate McDonald’s as a teenager now I try to only eat organic. San Francisco is the land of Alice Waters. That is a good thing, but not everyone can live like that. Some mothers are so exhausted that all they can do after a hard days work is drive the kid through on the way to soccer practice.
Buddha,
And if one were to pair the toy with healthy foods? Marketing a product to children would still be a factor, but that’s ubiquitous. Your thoughts?
BBB,
Here’s where you fall . . . “if the objective is to restrict the sale of a product that is perceived to be inherently dangerous”.
Faulty premise.
The object isn’t to restrict the sale, but rather the advertising: the incentive/inducement to children to want a bad choice compared to the alternatives. Removing choice isn’t object, but rather encouraging better choices by both parents and children by removing incentive for sale targeting children that result in a net savings to later health care costs by encouraging healthier citizens.
Swarthmore mom,
Soup was one of the first foods introduced to my kids after babyhood. Interestingly enough both girls keep a pot of soup on the stove today. One son-in-law eats anything while the other only eats meat and potatoes. The oldest granddaughter got a soup pot for Christmas last year … it was the only thing she requested.
Variety is the ticket as far as I’m concerned. My youngest daughter had her first baby a couple years ago and her OBGYN told her to eat a variety of foods throughout the pregnancy as studies had shown that babies are less picky eaters if the mother has varied her diet during pregnancy. That was the first time I’d ever heard that one. Her daughter will eat anything.
My grown daughters and grandkids don’t eat fast food … unless you count pizza … they never really developed a taste for it and now they don’t want the calories.
Gyges,
Ah, I see … it is my particular condemnation of parents who feed junk food to their kids on a regular basis that you take issue with. Ok, I honestly didn’t understand that that was the point of your argument. I thought you were telling me that they couldn’t help it because of society’s relationship to food. I was not disrespecting your views or trying to evade the clarification … (I still think Father A and B are putzes)
Alright, I have chosen a sentence from your post as the jumping off point and hopefully I will be able to adequately explain my condemnation of parents who feed junk food to their kids on a regular basis.
“If there’s no difference between how the man treats himself and his child, why would you assume that the child is the issue.” Because there should be a difference between how an adult treats himself/herself and how they treat a child if we are talking about treatment that is bad for the child.
I leave the adult to determine for himself whether or not he wishes to eat junk food all the time, go without a coat in cold weather, or not wear sunscreen. The adult is full grown and should be fully aware of the chances he is taking with his own health. The child does not know to put on a coat, eat healthy food or apply sunscreen. The child does not have the means to go and purchase these items even if he has learned from some other source that these things are good for him. The child looks to the parent for proper care.
It is the parent’s responsibility to provide for the child’s real needs … to be aware of what they are and to make the proper choices for the child until the child is able, in all ways, to make them for himself … even if the parent doesn’t doesn’t make those same choices for himself. Thus the age old saying: “do as I say, not as I do.”
Now to my condemnation of the parent who does not provide that which the child needs. (I am going to assume for the sake of this argument that the parent knows a steady diet of junk food is not good for a growing child and that the child should wear a coat when it’s cold and that sunscreen should be applied and that the parent has the means to provide these things, simply chooses not to.)
Why would any parent who knows that the child should wear a coat, eat healthy, and wear sunscreen choose to not provide those things and insist the child wear/eat them? Too busy, too lazy, too stupid? Perhaps, but also totally unconcerned for the child’s welfare … it is a nuisance (an annoyance, a bother, an inconvenience) to take the time necessary to properly meet the needs of the child … if taking the time to properly provide for the child is a nuisance then the child himself is a nuisance … to that parent.
I had a girl scout troop for 6 years (4th through 9th grade) … the same kids who never had a permission slip signed, never brought cookies on their assigned treat day, never were on time for events, never had the right equipment packed for camping, never had a ride home were also the ones who were always sick, never went to the dentist, took months to get their broken glasses fixed, considered fast food to be regular food rather than a treat, and whose parents never volunteered as chaperons. Were said parents too busy, too lazy, too stupid? Perhaps, but really … doing for their kids was a bother, an inconvenience … a nuisance … and the kids knew it and viewed themselves in exactly that light. They saw themselves as a nuisance. (These kids and parents were not poor.)
Now, if you find flawed logic in that explanation then we will have to agree to disagree.
BBB,
I’m sure after you tell the parents to just turn the TV off and raise their kids right, the problem will go away. Good job!