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,
You did so when you permitted your child to watch commercial television.
So we can’t regulate the advertising on TV because by watching TV we’ve agreed to let advertisers try to sell us on unhealthy lifestyles? Our only option is to never watch TV if we think that type of advertising is contributing to a major health crisis in the country?
Bob,Esq.:
The argument is extremely straight forward, but I will humor you, and spell it out:
Overall Objective: Reduce the incidence of obesity
Current Objective: Reduce the future incidence of obesity among children
Goal: Reduce the incidence of children craving, asking for, and eating unhealthy fast food, which is high in calories and known to contribute to obesity.
Mechanism: Stop fast food restaurants from including toys with unhealthy meals.
Why will that help? Fast food restaurants spend billions of dollars a year on advertising, often using toy “tie-ins” to major movie franchises. Stopping the toys from being included in unhealthy meals is designed to do either of two things: (1) stop children from requesting fast food specifically to receive the toy, or (2) to encourage them to request a healthy meal at the fast food restaurant, so that they can receive the advertised toy. Doing so will have the immediate effect of reducing the number of calories children consume at fast food restaurants and the hoped for byproduct of instilling healthier habits in them later in life.
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Now, since I’ve answered you, will you please show me the same respect and answer this question:
How does restricting this form of fast food advertising differ from restricting advertising for cigarettes?
I’ll also throw in, based on some of your previous comments, that we ban TV advertisements for cigarettes, but not print ones, which belies your insistence on an all or nothing approach.
Mespo,
I usually have a lot of respect for your opinions. This is definitely not one of those times.
“One wonders why they fight so hard to ensure that their kids are subjected to all manner of corporate manipulation that works a direct detriment to their kids’ health.”
Who invited them in? I’d have to say you (the parent). You did so when you permitted your child to watch commercial television. Then you (you again) drove them to McDonalds, and then you purchased the item (that you consider objectionable due to health risks of which you are aware) for them. I see an awful lot of you(s) here; any one of which should have caused you to exercise your discretionary power to eliminate “them” (the corporate influence).
In the past you may have had an excuse. At present, you are aware of the commercial influence and the associated risk of frequent consumption. If you decide to ignore that information (for whatever reason) the blame for any subsequent harm associated should be placed on you.
If you received a citation for excessive speed; how do you think it would play out when you told the judge that your kid had been watching “Speed Racer”, and that while knowing full-well that it would encourage your child to want to go faster, you let him watch it. And then while in the car, your kid started screaming that he wanted to go faster, so you did? Do you think the judge would be any more sympathetic there than I am being here? Or do you think the judge would give you a lecture on accepting personal responsibility? I have yet to see “the child made me do it, because the corporate influence caused him to tell me what to do” as a successful affirmative defense.
Buddha,
Even laws that rely on the commerce clause are subject to the rational relation test.
But agreeing to disagree is fine by me.
Mespo: “One wonders why they fight so hard to ensure that their kids are subjected to all manner of corporate manipulation that works a direct detriment to their kids’ health. They fail to see any kind of totalitarianism except the political kind, when a similar threat is corporate oligarchy. In their demand for political freedom, they have become corporate stooges. They remind me of petulant children demanding “what we want, when we want it, because we want it” — the risk be damned.”
There you go again. If you were able to establish a rational relation between Happy Meals/Happy Meal advertising and your allusions to ‘a direct detriment to their kids’ health’ we wouldn’t have a problem.
But alas, you somehow remain smug knowing full well your law fails the rational relation test.
Disagree with the breadth of application of the Commerce Clause or not, you cannot deny that very breadth in appliaction.
We will be disagreeing on this issue.
Considering how many subjects we have agreed upon in the past, it was bound to happen sooner or later.
BBB,
I call it bad parenting. The disagreement was about the motivation, not the result.
Blouise,
Don’t tell me I need to give you the “I choose my words carefully” speech.
“All you do by insisting otherwise is come across as self righteous…”
If I wanted to call you self righteous I would have saved myself the work of typing a good half of that phrase.
Bob Esq:
good show.
“We don’t want the damn government telling us what we may and may feed our kids and whether or not a toy can come with that food. If McDonald’s wants to put a toy in the meal and we, the consumers, want a toy with the meal, they, the government, can just butt out! Would you be willing to sign our petition?”
*******************
One wonders why they fight so hard to ensure that their kids are subjected to all manner of corporate manipulation that works a direct detriment to their kids’ health. They fail to see any kind of totalitarianism except the political kind, when a similar threat is corporate oligarchy. In their demand for political freedom, they have become corporate stooges. They remind me of petulant children demanding “what we want, when we want it, because we want it” — the risk be damned. Have it your own way and were I a member of the Town Council I’d give ’em their way too. There is no dealing with crazies who can vote. Ask the Repubs.
“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.”
I’ll stipulate to a lot of things, but that doesn’t make them harmful. A regular diet that is high in fat, sugar, and salt, may be harmful, but that doesn’t mean that occasional/reasonable use of the products is harmful. (Notice I didn’t say “intended”. That has yet to be established. Common sense would dictate that abuse is not the intended use.) The harm would only occur if the product is abused. The child, in almost all scenarios, lacks the ability to make the purchase. Therefore, the child is not the consumer. The commercial encourages the child to become a secondary advertiser. Even if the child is unwittingly (due to diminished capacity), drawn into that role, the purchasing power, and ultimately the responsibility, still lies with the parent. Hence, it is not the product or the marketing that is directly responsible for the child’s poor eating habits, which contribute to obesity; it is the parent or guardian.
The risks (as you point out), high fat, sugar and salt, are known. It is the parent or guardian, not the child, who provides the child with the product. It is also the parent who permits the abuse of the product. Even the Framers recognized that he who controls the purse ultimately controls the power.
Further, the commercial speech does not (from the commercials that I have viewed) recommend one product (the unhealthy one) over the other (the unhealthy one). That is left to the discretion of the parent. As long as the nutritional value of the meal is made readily available to the parent, the choice of what meal is purchased must be reasonable accepted to be the choice of the parent.
“2) and that its restriction will in fact alleviate them to a material degree.”
The material degree must be able to be established without assistance, or at the very least be necessary to achieve the objective. Is the impairment of commercial speech necessary to achieve the city’s objective? If so, it should be able to be demonstrated. By itself, the ban cannot be seen to accomplish anything more than reduce the inclination of the child to act as a secondary advertiser for the product.
“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).”
I don’t have a problem with the state promoting a healthy lifestyle.
How many unhealthy Happy Meals does the child need to consume before they can be identified as a significant contributor to poor health? Once a month? Once a week? Three times a week? Has the city/state attempted to inform parents as to the frequency in which consumption would present a health hazard?
Doe anyone know the disposition of Pelman v. McDonalds? Last I heard was that class action certification was denied, but the lower court didn’t seem inclined to hold McDonald’s liable.
Blouise,
To the extent that the council can reassure all parties involved that the state will not ‘invade their personal space’ with nonsensical legislation like a Happy Meal law, then so much the better.
James M.: “The law is not based on moral disapproval. Just because you’re blind to the obvious connection between advertising and consumption doesn’t mean it isn’t there.”
You can’t specify your ‘legitimate objective’ because it’s so vague. Yet you can specify who you want to target first; fast food purveyors. If that’s not moral disapproval, then explain the discrepancy between your broadly stated vague interest and your incredibly specific target. You know, explain how the law passes the rational relation test.
Furthermore, telling me I’m “blind to the obvious connection between advertising and consumption” is both false and abusive and has no place in an argument.
James M.: “Can you imagine the absurd position McDonalds would be in if they argued that there’s no link between advertising and consumption? They spend more than three quarters of a BILLION dollars every year on advertising. Why would they do that if they really thought it didn’t directly lead to increased sales?”
That’s your non sequitor premise being reduced to absurdity. The LEGAL question is whether the law is rationally related to a legitimate state interest. Talking about a “link between advertising and consumption” addresses nothing.
Bob,Esq.: And when exactly did the general welfare clause become a grant of power? It’s a condition on the taxing power; not an independent source of power that you can appeal to while legislating the body politic to the extreme right or left.
James M.: “This isn’t the federal government (who could do the same thing through the commerce clause). States have police powers which let them . . . *drumroll* . . . legislate for the general welfare, health, and safety! I don’t know anything about how California organizes its cities, so I can’t complete the argument that SF has been delegated the relevant police powers, but your argument is completely misguided because this is not the federal government which is acting.”
While you do raise a cogent point about states powers, my argument was addressed to Buddha’s remarks which invoked the Fed constitution and thus was not misguided.
Nonetheless, under the incorporation doctrine, the state laws must pass muster under the 5th and 14th amendments to the fed constitution as well; rendering your objection above moot.
Bob,Esq,
I doubt these moms will be able to put an initiative on the ballot as the legal wording and possibility of coming in conflict with State General Law, let alone the number of signatures required, is huge. I will talk to them about that.
As far as a petition to Council … they get those all the time from all sorts of “start-up” groups … they will listen politely and each member will comment and the moms will leave feeling that they have made their point. I doubt Council will feel any need to create an Ordinance on this matter. However, the moms will have been heard, the little town paper will report on it, and Council will move to the next item on the agenda. Democracy in small town America.
I am, however, furiously copying and pasting points made by yourself, Buddha, mespo, and others. I plan to give the appearance of intelligence when I welcome these young moms into my home.
Bob,Esq.,
The law is not based on moral disapproval. Just because you’re blind to the obvious connection between advertising and consumption doesn’t mean it isn’t there. Can you imagine the absurd position McDonalds would be in if they argued that there’s no link between advertising and consumption? They spend more than three quarters of a BILLION dollars every year on advertising. Why would they do that if they really thought it didn’t directly lead to increased sales?
And when exactly did the general welfare clause become a grant of power? It’s a condition on the taxing power; not an independent source of power that you can appeal to while legislating the body politic to the extreme right or left.
This isn’t the federal government (who could do the same thing through the commerce clause). States have police powers which let them . . . *drumroll* . . . legislate for the general welfare, health, and safety! I don’t know anything about how California organizes its cities, so I can’t complete the argument that SF has been delegated the relevant police powers, but your argument is completely misguided because this is not the federal government which is acting.
Blouise,
That is far more than weird. That borders on C.G. Jung Synchronicity.
Regarding the notion that the ‘government butt out,’ this is starting point for the split between benevolent socialism and benevolent fascism.
Both the left and the right has their own ideas of what laws they want to pass to mold the society in their best images.
And it’s at this point that you need to go back to the creation of the social compact and ask yourself the hypothetical question of whether you left the state of nature and entered into society for laws like these.
Buddha and Bob,Esq.,
You are not going to believe this. I just hung up from a call placed by a “young” mother. She told me that a group of like minded “moms” have gotten together and are planning to petition City Council to make certain they don’t follow San Fransisco’s lead.
To quote her as close to accurate as I am able since I didn’t actually record her words, “We don’t want the damn government telling us what we may and may feed our kids and whether or not a toy can come with that food. If McDonald’s wants to put a toy in the meal and we, the consumers, want a toy with the meal, they, the government, can just butt out! Would you be willing to sign our petition?”
Having been newly sensitized to the problems of marketing to children I tried my best to introduce the subject to her. She was having none of it.
This is a matter of government over-reaching and the group she belongs to intends to put a stop to it before it gets started here.
I asked her to stop by the house after Thanksgiving and we’d talk about it. She asked if she could bring a couple friends with her and I agreed to no more than 4. We set a date and time.
I live in a small town and there are 4 fast food restaurants that include a toy in their children’s meal (according to the young mother who called me).
I can almost guarantee, knowing each of the councilman personally, that these mothers will have no problem getting their way with Council.
She even mentioned doing an initiative on the next ballot (our Charter allows for such citizen action)that would prohibit the City from doing anything like San Fransisco did. These women are serious.
This San Fransisco thing just may have legs.
Buddha: “Mischacterization. Yes, because a Happy Meal is composed of individual items on the McDonald’s menu – still on their menu – packaged in a specific manner. Since the items are still for sale, only their packaging and other inducements used in advertising are banned. You can still buy your kid a cheese burger, fries and a Coke. It just won’t come with a pretty box and a toy.”
Okay, then once again: Show me the rational relation between banning the advertising of happy meals, or banning the “pretty box and a toy” and “reducing the percentage of GDP/state budgets spent on health care.”
Buddha: “Rational relationship? Medicare actuaries say 2010 was this highest percentage of GDP spent on health care since 1960 at 17.3% yet quality of health in decline. As these transactions are taxed, there is a manifestly rational relationship to state interests in making that transaction more efficient as a matter of promoting the general welfare.”
Again, how does banning a pretty box and toy achieve your objective proximately or in fact? The foregoing is as far from an answer as an engine without a drive shaft; spinning endlessly and going nowhere. Show us where the rubber hits the road.
Buddha: “Your inability to see the nexus between diet and health care costs doesn’t mean it isn’t there, only that you don’t see it, Bob.”
I know there’s a nexus between diet and health care costs. Type II diabetes can get incredibly expensive. However the existence of that problem does not empower the state to ban the advertising of happy meals no more than it empowers it to ban the advertising of candy on television.
Buddha: “As is your inability to see a nexus between advertising and consumption. This isn’t a slipper slope issue as individual choices and freedoms are not impaired, only commercial speech and only commercial speech that is designed to encourage a consumption with a built-in societal cost that isn’t born solely by fast food chains but by us all in the form of increased health care costs.”
Again, I see the nexus between advertising and consumption; I’ve yet to be shown the rational relation between the happy meal law and a legitimate objective. And the reason for that is your inability to specify your objective so that it connects with the law as promulgated. We don’t get to any slope until you show us the nexus between your law and the desired objective.
Furthermore, expanding your alleged legitimate objective to “reducing the percentage of GDP/state budgets spent on health care” only makes your case worse. But even if you focused on the childhood obesity problem, the law still fails the rational relation test.
As I said earlier to Mespo:
“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.
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 too 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.”
You really think you can pass any law you like because commercial speech is less protected than personal speech? Seriously?
“banning Happy Meals”
Mischacterization. Yes, because a Happy Meal is composed of individual items on the McDonald’s menu – still on their menu – packaged in a specific manner. Since the items are still for sale, only their packaging and other inducements used in advertising are banned. You can still buy your kid a cheese burger, fries and a Coke. It just won’t come with a pretty box and a toy.
“Depends on the type of discouragement employed.”
Don’t act as if we both don’t know the difference between “discouragement” and “coercion”.
Rational relationship? Medicare actuaries say 2010 was this highest percentage of GDP spent on health care since 1960 at 17.3% yet quality of health in decline. As these transactions are taxed, there is a manifestly rational relationship to state interests in making that transaction more efficient as a matter of promoting the general welfare.
“When you pass laws with a zero nexus to the problem they allege to be addressing, you open the doors to that dictatorial society”
Your inability to see the nexus between diet and health care costs doesn’t mean it isn’t there, only that you don’t see it, Bob. As is your inability to see a nexus between advertising and consumption. This isn’t a slipper slope issue as individual choices and freedoms are not impaired, only commercial speech and only commercial speech that is designed to encourage a consumption with a built-in societal cost that isn’t born solely by fast food chains but by us all in the form of increased health care costs.
Buddha: “The state interest isn’t in dictating lifestyles. It’s in reduction of percentage of GDP/state budgets spent on health care.”
Okay, I’ll put the lifestyle legislation on the back burner and ask you …
Show me the rational relation between banning the advertising of happy meals, or as San Francisco has, the banning of Happy Meals entirely, and “reducing the percentage of GDP/state budgets spent on health care.”
Buddha: “Dictating” is not the same as encouraging or discouraging certain behaviors.”
Depends on the type of discouragement employed.
Buddha: “Or do you have a problem with the “sin taxes”? Activities with a higher social cost should carry a higher transactional cost as a consequence as a matter of equity.”
Those are fine; seeing how they are indeed rationally related to the stated goal.
Buddha: “It would be both dictatorial and inequitable to ban the lifestyle in question – which no body has called for. It’s not dictatorial to discourage bad habits and promote good habits any more than it is to tax transactions in a rational manner related to their associated costs.”
This is what I’ve been warning you about. When you pass laws with a zero nexus to the problem they allege to be addressing, you open the doors to that dictatorial society; wherein laws can be passed that do indeed dictate the lifestyles of the citizens under the guise of a state interest that isn’t even addressed by the law!
Buddha: “Food and water safety are a legitimate state interest as well. Encouraging a healthy diet is no more onerous to personal liberties than promoting exercise – long established governmental practice. It’s a suggestion, not a command.”
Hint: “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.”
If the fast food companies are not engaged in fraud or any other type of trespass to the citizenry, where and how does the government get the power to ban them from doing what they’re doing? The power to legislate and regulate does not flow from good intentions alone.
Buddha: People aren’t being told they can’t eat something. Companies are being told they have to modify their marketing strategy to comply with legitimate state interests both as a matter of promoting the general welfare and via the Commerce Clause in way that isn’t overreaching into personal liberties.”
Promoting the general welfare?! Banning Happy Meal advertising promotes the general welfare how?
And when exactly did the general welfare clause become a grant of power? It’s a condition on the taxing power; not an independent source of power that you can appeal to while legislating the body politic to the extreme right or left.
Bob,
“assumes you can make the argument that the state has a legitimate interest in dictating the lifestyles of its citizens.”
The state interest isn’t in dictating lifestyles. It’s in reduction of percentage of GDP/state budgets spent on health care. “Dictating” is not the same as encouraging or discouraging certain behaviors. Or do you have a problem with the “sin taxes”? Activities with a higher social cost should carry a higher transactional cost as a consequence as a matter of equity. It would be both dictatorial and inequitable to ban the lifestyle in question – which no body has called for. It’s not dictatorial to discourage bad habits and promote good habits any more than it is to tax transactions in a rational manner related to their associated costs. Food and water safety are a legitimate state interest as well. Encouraging a healthy diet is no more onerous to personal liberties than promoting exercise – long established governmental practice. It’s a suggestion, not a command. People aren’t being told they can’t eat something. Companies are being told they have to modify their marketing strategy to comply with legitimate state interests both as a matter of promoting the general welfare and via the Commerce Clause in way that isn’t overreaching into personal liberties.