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
Lurker,
While everyone is entitled to form their own opinion of others, I think you are arrived at a rather extreme conclusion based on extremely limited evidence.
You would not be the first to rush to judgment after seeing what someone writes on a blog. However, it has been my experience, that most people who take the time to share their thoughts do so because they care for their fellow citizens. This becomes even more evident when you consider that they are doing so for free.
Bob Esq:
now you are talking, that is exactly how Mespo727272 and Buddha is Laughing view the citizens of the US. They may not understand it as such but that is the logical extension of what I have seen written by them on this blog. And many others for that matter.
Mespo: “Thank you Bob, but your definition of “substantive” and mine sorely differ. I limit my definition to relevant assertions. Citing Kant in the context of a prohibition on advertising seems silly to me.”
Yeah; that’s all I did.
Mespo: “Jefferson, Madison, and Mason, as lawyers and logicians, knew better. If a document prohibits an entity from doing something, it follows that it had the power to do so in the first place. Why else would you prohibit the specifics unless it possessed the power generally to issue them? That is why the Bill of Rights was necessary, because those lawyers knew that what is not prohibited specifically to the federal government is permitted generally.”
So you’re saying that Hamilton was wrong when he wrote:
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.” Fed 84
And you’re saying that Madison knew Hamilton was wrong when he said in reference to the foregoing that:
“It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution [the Ninth Amendment].”
James Madison, House of Representatives, 8 June 1789, Annals 1:439
Mespo: “If a document prohibits an entity from doing something, it follows that it had the power to do so in the first place. Why else would you prohibit the specifics unless it possessed the power generally to issue them?”
So contradictory to what Hamilton and Madison were discussing above, you contend that the power of the document confers rights in lieu of rights conferring power. Fascinating. So according to you there is no social compact; and for that matter, we are not Citizens of the United States but Property Of The United States.
Mespo: “Fed 84 is bad legal analysis”
If this is your idea of a joke; it’s not funny at all.
Gyges,
Could you be a little more specific? i.e. point out a specific instance in which Mespo provided a citation, and you found my response to be inadequate because it was not accompanied by supporting evidence.
BBB,
I’ll take a study that supports any of your response to Mespo’s citations.
“In my experience” isn’t really a good way to refute scientific studies.
Gyges,
What supporting evidence do you want me to provide? I will do my best to comply.
That level playing field can be a bear.
BBB,
Fairs fair, Mespo showed us all his supporting evidence. Your turn.
I consider reliance on any Federalist Paper after #77 to be useless.
Madison stated; “[a]s a guide in expounding and applying the provisions of the Constitution . . . the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it received all the authority which it possesses” (Farrand, IV, 447-48)
Federalist 78 wasn’t published until June 14, 1788. By that time, all but three states had ratified the Constitution.
Mespo,
“Forty percent of parents reported that their child asks to go to McDonald’s at least once a week; 15% of preschoolers ask to go every day.”
I think they lied. My experience tells me that kids will request fast food more than once a week. Parents ask children “What do you want for dinner”. The most common response is “McDonalds”.
Did the study say how many wanted the unhealthy meal vs. the healthy meal? Upon arrival the parents usually ask (unless they know their child doesn’t like one or the other) “Do you want a hamburger or chicken?” (most commonly referred to as “ticken”.) 🙂
“Given the extent of the problem, it appears that taking them no more than once per week is problematic for their health even if the universe of food choices includes both healthy and unhealthy choices when they get there.”
I think the unhealthy meal is being made the scapegoat. I think frequency and home diet, when combined with abundant sedentary time has the greatest effect.
Bob, Esq.
“By the way, bravo on avoiding every substantive argument I’ve made by simply labeling me as illogical.
Classy.”
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Thank you Bob, but your definition of “substantive” and mine sorely differ. I limit my definition to relevant assertions. Citing Kant in the context of a prohibition on advertising seems silly to me.
Bob,Esq.:
Funny this comes up in the context of an advertising debate, since, after all, Hamilton’s purpose in Fed 84 was a classic “sell job.*” Being an ardent strong central government supporter, Hamilton feared a Bill of Rights. At the time of the writing of the essay, the Convention had voted down such amendments. Now Hamilton was faced with a dilemma, how does one sell limited government without specific limitations (which,of course, suited Hamilton quite well). The answer is obvious. Tell the New Yorkers that the entire document is a “Bill of Rights,” and they are protected because no where does the Constitution say that the new government may pass ex post facto laws, pass bills of attainder, suspend Habeas Corpus, etc. In fact, he reasoned they are already prohibited because the Constitution never had the power to promulgate these things or any other usurpation of liberty.
Jefferson, Madison, and Mason, as lawyers and logicians, knew better. If a document prohibits an entity from doing something, it follows that it had the power to do so in the first place. Why else would you prohibit the specifics unless it possessed the power generally to issue them? That is why the Bill of Rights was necessary, because those lawyers knew that what is not prohibited specifically to the federal government is permitted generally.
Fed 84 is bad legal analysis, but good salesmanship that went for naught as Madison et als tacked on the pesky 10 anyway.
*Like most salesmen he wouldn’t even call it what is was — a plea to pass the Constitution without its key feature — but rather disarmingly referred to it as, “Certain General and Miscellaneous Objections to the Constitution Considered and Answered.”
Mespo,
By the way, bravo on avoiding every substantive argument I’ve made by simply labeling me as illogical.
Classy.
The issue, in the commercial speech analysis and the rational relation test is not whether you can show a link, but “whether the ‘restriction’ will in fact alleviate [the alleged harms] to a material degree.”
Having defined the alleged harm so globally, an arbitrary micro-cosmic restriction can hardly be said to be rationally related to achieving the globally defined interest.
Bob,Esq.,
Your whole objection is that there isn’t a link. You can’t ignore the part of my argument where I argue what the link is. Doing so and claiming you are responding “in toto” amounts to a blanket “Nuh-uh!”
I’m past the point where I’m interested in discussing it with you, so let’s just drop it.
Bob,Esq.:
“Citing Fed 84 in the face of paternalism is bellicose? ”
****************
No, but stuffing it is.
BBB:
“At what frequency of ingestion does the most unhealthy Happy Meal become a significant health hazard for children ages 2-7?”
*******************
According to Rudd:
“Eighty-four percent of parents reported taking their child to a fast food restaurant at least once a week; 66% reported going to McDonald’s in the past week.
Forty percent of parents reported that their child asks to go to McDonald’s at least once a week; 15% of preschoolers ask to go every day.”
Given the extent of the problem, it appears that taking them no more than once per week is problematic for their health even if the universe of food choices includes both healthy and unhealthy choices when they get there.
Mespo,
Citing Fed 84 in the face of paternalism is bellicose?
Pardon me for channeling the ghost of Alexander Hamilton.
James M.: “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.”
Once again, I addressed your argument in toto; not the minute portion you ‘currently’ want to target. Look at all the assumptions have to make just to get your desired result. Why do all the other contributors to childhood obesity get a free ride?
James M.: Perhaps I just overlooked the article in the constitution that incorporates Kantian ethics and the social contract.
Perhaps its due in no small part to you overlooking the social contract in furtherance of your ‘health agenda.’ Perhaps you should also review Fed 84 before you get any more cocky about this incredible power you think you yield.
James M.: 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.”
Given that you’ve provided no logical foundation for singling out fast food among ALL the other contributing factors to childhood obesity, your moral disapproval of fast food is all that’s left. Further, your capricious application of law to achieve your alleged legitimate interest is EXACTLY the same form of argument peddled by Texas in Lawrence.
James M.: 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.”
You can link teaspoons of sugar to childhood obesity…
Great.