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’ve fallen prey to the false dichotomy fallacy. It’s not either the parents job or the government’s job, it’s both. Promoting the general welfare is still the realm of governmental prerogative. Specific welfare belongs to the parents alone.
Bob,Esq.:
“And a casual stroll through Federalist 84 tells you where you can stuff your paternalistic legislation.”
**********************
As I and a few others have noted you’ve become increasingly bellicose and provocative when challenged. Your logic has likewise suffered from this infusion of unneeded emotional overlay. He who throws dirt loses ground–especially around here with the regulars.
Bob,Esq:
“Speaking of corporate stooges, tell me again how corporations left the state of nature and formed a social compact; retaining their unfettered right of political speech.”
*****************
Of course, they didn’t. We made them. Now, they make us because we allow them to be masks for individual or small group avarice. There’s reason we call it “piercing the corporate veil.” Considering them worthy of what was once thought of a purely human rights, allows them to place distance between their greedy ownership and the perpetrator of the mischief needed to satisfy the greed. No body’s at fault, you see. Corporations are now our version of prostitutes to greed pimping for the institutional and large stockholder interests.
Mespo: “Interest groups or factions are nothing new as a casual stroll through Federalist 10 will confirm. Madison certainly thought we had a republican form of government.”
And a casual stroll through Federalist 84 tells you where you can stuff your paternalistic legislation.
You still haven’t addressed the paragraph where I lay out the link. The difference between gaining and maintaining or losing weight is often just a few hundred calories a day. Cutting out three or four hundred calories from fast food once a week could make real differences in children’s lives. Picking the healthy meal so they get the Pixar or Disney toy could make that difference.
—
Perhaps I just overlooked the article in the constitution that incorporates Kantian ethics and the social contract.
–
I don’t have moral disapproval of fast food restaurants, so I don’t know why you keep attributing that to me. Your Lawrence v. Texas analogy is ridiculous.
—
I think leaving the conversation at me being fine with this as a first step and you thinking that it’s somehow a due process or EP violation is fine. At this point it would come down to a factual issue on whether or not there is a link.
And in case you’re wondering, when the state promulgates a law that converts a duty of virtue into a duty of right, that is a per se exercise of power beyond right which no one has a right to.
There’s a word for that…
James M.,
“There’s also a direct link between regular consumption of fast food and obesity.”
Regularly eating fast food, may increase the risk of obesity, However, it is not a cause of obesity. That means that you could eat fast food on a regular basis and not become obese. In fact, you can even lose weight while eating fast food. This, however, requires knowledge of not only how many calories you are burning on a daily basis, but also the calories in the food that you are eating.
Over the past 20 years, physical activity has been replaced by more time in front of computers and the television.
“With all due respect; That’s a load of crap. Our elected officials, more often than not, are aided more by special interest groups, funded by those who have discovered a new way to make a buck, than anything else. The voice with money too often drowns out the voice of the electorate.”
************
Interest groups or factions are nothing new as a casual stroll through Federalist 10 will confirm. Madison certainly thought we had a republican form of government.
James M.: “There’s also a direct link between regular consumption of fast food and obesity.”
And what of the regular consumption of cookies and sugary breakfast cereal pimped out by cartoon characters?
And what of the video games children sit for hours playing while stuffing their faces?
Unlike cigarettes, fast food is not the prime cause of any harm you’re allegedly addressing.
James M.: State police powers allow for laws that benefit the public health. Obesity is a public health issue. QED, the state can attempt to reduce obesity.
Genius.
James M.: I object strongly to your characterization of obesity as a “lack of virtue” and attempts to combat it as engaging in tyranny. Your comments are ill-founded, scientifically unsound, and ignorant.
Really.
“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.”
http://www.constitution.org/kant/ntrometa.htm
James, since fast food is just one factor in the incredibly larger equation that is childhood obesity, you have offered no reason for targeting fast food restaurants other than your own moral disapproval of them.
Prohibiting fast food restaurants from using toys to market their food 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.”
That’s not an ‘all or nothing’ approach; that’s due process and equal protection.
Cigarettes, unlike fast food meals, are inherently dangerous products. There is a direct link between the product in itself and the harms caused; e.g. emphysema, lung cancer, etc.
There’s also a direct link between regular consumption of fast food and obesity.
Bob,Esq.,
(1) I was stepping you through the logic, from broadest goal, to most narrow goal. I wasn’t “changing” my state interest, but showing you the logic from the huge, macro goal to the practical step the legislation tries to take. That’s how things work in the real world, where you are tackling a small part of a large problem.
(2) Yes, I know what the rational basis test is. Do you? I don’t know what kind of test you think you’re applying, but just chanting “No connection, no connection, no connection” in the face of contrary evidence is not one I’m familiar with. Most lawyers look on rational basis as a rubber stamp because it’s very easy for the government to satisfy.
(3) State police powers allow for laws that benefit the public health. Obesity is a public health issue. QED, the state can attempt to reduce obesity. I object strongly to your characterization of obesity as a “lack of virtue” and attempts to combat it as engaging in tyranny. Your comments are ill-founded, scientifically unsound, and ignorant.
(4) You completely ignored the critical paragraph of my reply (titled “Why will that help?”) which gives you the explanation you’ve been demanding, and which you apparently refused to even glance at.
To wit: “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.”
—
I have no interest in getting into the type of thousand post argument that you and Slarti seem to enjoy, so I’m not going to drag this out much longer. I had hoped that since I took the time to give you the explanation you wanted, you could ease up a little and discuss it in a civil tone.
“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.” (mespo)
=========================================================
You are insightful … I didn’t need to tell you that the greater majority of registered voters in my small town are republican.
I will impart my newfound information on marketing to children but I don’t expect to have much impact … however, you and Buddha caused me to sit back and think so perhaps I might be able to give pause to at least one of the moms.
These are good people and some of their “start-up” groups have brought good to the community … they managed to create a park that remains a “nature preserve” of sorts and saved a couple of historic sites.
But I suspect this particular action will result in little more than just talk. However, I’m not going to state that with 100% assurance … this is an activist kind of place.
“Well, not even Babe Ruth batted .1000.”
Though most fans would have liked to see him do so. 🙂
“This momma’s revolt is the hazard of direct democracy. Upset folks with very little training or experience leaning on small town government to pass a law to prevent a law, and all of it based on some unformed, nebulous attitude that the government is somehow pushing them around. Oh, not their own government, mind you, but someone eles’s 3000 miles away.”
“The best defense against usurpatory government is an assertive citizenry.” —William F. Buckley
Last I checked, it was just as difficult to repeal a law as it was to enact it in the first place. I have no problem with an assertive citizenry. A collective voice is always more effectively heard than that of an individual.
You call them “uninformed”. Then I think it only fair to present you with the same question that I submitted to James M.: At what frequency of ingestion does the most unhealthy Happy Meal become a significant health hazard for children ages 2-7?
Lest we forget this old adage: “An ounce of prevention is worth a pound of cure” ~Ben Franklin
“Ours is a republican form of government wherein we rely on the judgment and experience of elected officials aided by competent staff to handle law making functions.”
With all due respect; That’s a load of crap. Our elected officials, more often than not, are aided more by special interest groups, funded by those who have discovered a new way to make a buck, than anything else. The voice with money too often drowns out the voice of the electorate.
“This “popular uprising” to insure that San Francisco-style laws don’t take effect in their jurisdiction (by popular fiat mind you) is the craziest thing I’ve seen.”
You mean like a New Jersey judge relying Sharia Law? God forbid the good citizens take an active role in the form of prevention instead using their hard earned money to battle it out in court.
“Call me crazy too, because I don’t think parents have an unfettered right to have manipulative advertising thrust upon their kids to encourage poor eating habits that will inevitably lead to poor health and more burden on the public exchequer.”
It’s called the “OFF” button. Even when I was a child, my parents controlled what I watched. If I didn’t like what the babysitter is teaching my children, I’d fire the babysitter.
“Exploding health care costs are everyone’s business and, as we’ve said, ad nauseum, the Bill of Rights is not a suicide pact. It takes some folks longer to realize this than others.”
Funny you should choose “the Bill of Rights is not a suicide pact” instead of “The Constitution is not a suicide pact” as it has most often been attributed to Lincoln instead of Justice Robert H. Jackson, who, coincidentally used it in his dissenting opinion in a free speech case. The commercials you dislike do not, IMO, suggest abuse, but encourage use. It is a parent who fails their child by permitting abuse.
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.”
Speaking of corporate stooges, tell me again how corporations left the state of nature and formed a social compact; retaining their unfettered right of political speech.
James M.: “Overall Objective: Reduce the incidence of obesity.”
And this is a legitimate state interest how? Obesity is the result of the individual’s lack of virtue. Show me how the state is empowered to enforce a duty of virtue as if it were a duty of right without engaging in tyranny.
James M.: “Current Objective: Reduce the future incidence of obesity among children”
You’ve just changed your allegedly legitimate state interest.
James M. “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.”
You just did it again. Do you even know what the rational relation test is? So far you’ve blurred your allegedly legitimate state interest by offering three different versions.
What you’re trying to say is that the state has a legitimate interest in reducing the incidence of childhood obesity.
Assuming the interest is legitimate, i.e. ignoring all four corners of the social contract, you now say that your law banning the advertising (and in the case of SF, banning the sale) of fast food meals for kids that include toys (aka Happy Meals) is rationally related to the furtherance of said interest.
To use your words, how is stopping “fast food restaurants from including toys with [fast food] meals” rationally related to your alleged legitimate objective?
A quick wiki-overview of the causes of childhood obesity includes the following:
* 3.1 Dietary
* 3.2 Sedentary lifestyle
* 3.3 Genetics
* 3.4 Home environment
* 3.5 Developmental factors
* 3.6 Medical illness
* 3.7 Psychological factors
Again, explain the discrepancy between your broadly stated vague interest and your incredibly specific target. You’re doing nothing but expressing a moral disapproval of fast food in particular; and as such your law is not rationally related to your extremely broadly defined state interest.
Once again: “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.”
If the Court accepted your brand of reasoning in this case, what’s to stop the state of Texas from making the (inane) argument that it has a legitimate interest in stopping the spread of HIV and since HIV is spread via sodomy then the state has a legitimate interest in (‘currently’) criminalizing homosexual sodomy?
That’s the skeletal pattern of your argument. There is no more rational relation between curbing childhood obesity by banning the advertising (or sale) of Happy Meals than there is between stopping the spread of HIV by criminalizing homosexual sodomy.
James M.: How does restricting this form of fast food advertising differ from restricting advertising for cigarettes?
Cigarettes, unlike fast food meals, are inherently dangerous products. There is a direct link between the product in itself and the harms caused; e.g. emphysema, lung cancer, etc.
The inherent danger of the product itself satisfies the rational relation test.
James M.,
“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?”
For the most part, Yes.
Advertising (commercial speech) on TV is regulated. However, there are limits to which commercial speech can be regulated/restricted. While not to the degree of which individual speech is protected, commercial speech is nonetheless protected.
“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?”
If the programming or advertisements present information which you find to be objectionable, you have the choice to turn it off, change the channel, use your DVR at skip the commercials, or pop in a video.
The watching of TV is probably the largest contributor to the obesity problem in this country; regardless of programming or commercial content. As bdaman pointed out, the second may very well be growth hormones.
At what frequency of ingestion does the most unhealthy Happy Meal become a significant health hazard for children ages 2-7?
Bob,Esq.:
“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.”
****************
I’ve already provided research demonstrating the hazards of advertising to children. The harm of fat laden, fast foods to children’s health seems axiomatic but is supported here with research:
http://pediatrics.aappublications.org/cgi/content/abstract/113/1/112
and here:
http://pediatrics.aappublications.org/cgi/content/full/113/1/132
The Rudd Center for Food Policy & Obesity has its report on the very issue you describe here:
http://www.fastfoodmarketing.org/researchers.aspx
mespo,
Sean over on the polygamy thread has a vote that counts just as much as mine. That’s a real kick in the ass.
BBB:
“I usually have a lot of respect for your opinions. This is definitely not one of those times.”
**************************
Well, not even Babe Ruth batted .1000.
This momma’s revolt is the hazard of direct democracy. Upset folks with very little training or experience leaning on small town government to pass a law to prevent a law, and all of it based on some unformed, nebulous attitude that the government is somehow pushing them around. Oh, not their own government, mind you, but someone eles’s 3000 miles away.
Ours is a republican form of government wherein we rely on the judgment and experience of elected officials aided by competent staff to handle law making functions. This “popular uprising” to insure that San Francisco-style laws don’t take effect in their jurisdiction (by popular fiat mind you) is the craziest thing I’ve seen.
Call me crazy too, because I don’t think parents have an unfettered right to have manipulative advertising thrust upon their kids to encourage poor eating habits that will inevitably lead to poor health and more burden on the public exchequer. Exploding health care costs are everyone’s business and, as we’ve said, ad nauseum, the Bill of Rights is not a suicide pact. It takes some folks longer to realize this than others.
The fundamental virtue of democracy is that everyone has a vote; the fundamental flaw of democracy is that everyone has a vote.