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,
The criminal code is full of restrictions (“less freedom”) that any sane person would think are just dandy and conducive to a civil society. Also, how about restrictions on food safety? There’s tons of good and necessary restrictions on “freedom”.
James:
“Nearly all commercial speech is corporate speech.”
And who owns corporations? I believe it is individuals, shareholders, owners (in regards to a s-corp), bond holders, partners, etc.
So ultimately a restriction on corporate speech is a restriction on individual speech.
Individuals create these entities.
James M:
I absolutely will stand by that statement. Can a woman be sort of pregnant?
Would you drink water with a small amount of poison in it?
The law in San Francisco is ridiculous as would be banning the ice cream man’s tune. If there is a decibel restriction on the books then he needs to tone it down but to protect children from a bomb pop? As John Stossel says “Give me a break”.
All these types of laws seem to also take away some one’s rights. Like this one, it takes away the right of the company to advertise.
BBB,
Nearly all commercial speech is corporate speech.
Lurker,
You’re really willing to stand by the premise that all political ideas lead to actions that are either categorically good, because they lead to less restriction (“freedom”), or bad, because they lead to more restriction (“bondage”)?
Sign me up for team things-aren’t-always-black-and-white please. If that puts me with mespo and BIL, I’ll consider myself in good company.
Should he be told that he can’t play the music because it markets unhealthy products to children?
Ultimately, yes. I don’t think it’s a top priority, however.
BIL,
Are you sure you aren’t permitting your expressed hatred of corporations to cloud your judgment?
When I see Citizens United (a corporate speech case) brought up in a discussion about commercial speech (which could involve anything from a sole proprietorship to a multinational conglomerate), it gives me reason to consider your position in support of the San Francisco ban to be more of a “Take that, bitch” (specifically directed at the corporate entity) than anything else.
I happen to think that Citizens United was correctly decided, but that doesn’t mean I don’t think corporate speech shouldn’t be limited. It just means that I don’t think our current laws operate to impose the desired restrictions.
Consider this: An acquaintance of mine owns and operates an ice cream truck. During the summer, he drives around the neighborhoods with music playing that not only helps to announce his arrival, but also helps to attract children. I’m pretty sure that most of his fare would be considered “unhealthy”.
Should he be told that he can’t play the music because it markets unhealthy products to children?
I met Rosie Greir in a 7-11 about 20 years ago. He was in town as some kind of reverend or something.
Except for that brief time in the 70’s where I had Rosie Greir’s head sewn onto my shoulder.
Other than that, we’ve both been individuals our entire lives.
Bob,
mespo and I have differing opinions and ideas on lots of subjects. I have it on good authority we’ve both been individuals our entire lives.
If we’re lucky, bdaman. The recent trend of mass food poisonings in this country stem from the FDA being 1) out of date structurally for efficiency [especially on the drug approval end], 2) being under-staffed on inspectors and 3) lobbyists ever getting their customers exemptions from inspections or the number of inspections required reduced.
The best thing to improve food and drug safety would be to split the organization into discrete organizations, one for food safety, one for drug safety. The missions of both those functions of the FDA has grown in complexity since their formation, meriting separation as a matter of reducing their organizational complexity (efficiency through simplification of processes and refocusing of scope(s)), and the restoration and proper funding of food inspectors to enable them to do their job: making sure food processors and manufacturers aren’t going to kill citizens through negligence or from cutting corners.
Food safety is a very valid state interest as is drug safety. Being against improving the FDA is not only corporatist and against your best interests as a citizen, it’s manifestly stupid.
Buddha: “And it will only get worse under Citizen’s United as corporations get more and more rights formerly reserved to natural people. … Yeah, there’s some monkeys around here who haven’t thought restricting commercial speech through alright, but it sure as Hell isn’t me or mespo.”
Not for nothing, but you and Mespo are on opposite sides of the Citizen’s United issue. Mespo’s broken some new ground in re-writing the social compact (in furtherance of that view); unless that last post of his regarding Fed 84 was just his idea of a joke.
This is where it’s all headed.
http://www.govtrackinsider.com/articles/2010-11-15/s510
“I am not saying that mespo727272 and Buddha is Laughing are bad people just that some of their ideas would lead to tyranny if taken to their logical conclusion. They probably havent even thought about where those ideas would lead.”
That would be incorrect, both about application and forethought. Letting companies do whatever the Hell they want without restriction is fascist tyranny but you keep on dreaming that because it’s a business, they are looking out for societies best interests when their only motive is profit. Government and business are NOT the same nor do they have the same operating parameters. The function of business is profit. The function of government is manifold but all geared (when not under the influence of graft) toward the common goods of social stability (through laws and building of infrastructure) and justice (that thing corporations are ever seeking to a avoid – the liability of taking responsibility for their actions).
I haven’t thought about where censoring commercial speech leads? It leads to a world where corporations are put back in their proper place: as legal fictions meant to be a tool for business development by providing limited liability, not an absolute shield from criminal and civil liability – which is what they have become. And it will only get worse under Citizen’s United as corporations get more and more rights formerly reserved to natural people. Giving corporations extended personality that turns their proper function into a social liability or superior personality as compared to citizens is an abomination before the Constitution and the DOI no matter what those fascist asshats Roberts, Alito, Scalia, Thomas and Kennedy have to say.
Yeah, there’s some monkeys around here who haven’t thought restricting commercial speech through alright, but it sure as Hell isn’t me or mespo.
BBB:
maybe so, but certain actions have certain outcomes. And certain ideas have certain outcomes in reality.
Actions, at least in the political realm, based on ideas have outcomes that are either malignant or beneficent. Just as we see on this thread with the 2 camps, one willing to ban advertising and one in opposition to that ban.
What is the end result of said ban? Is it a less restrictive state or a more restrictive state? What is the natural state for human beings? Is it freedom or bondage?
Which ideas increase what is good and which ideas increase what is bad?
There are some things the government has no business being involved with and which lead to more control over our lives. We give up some control, as Bob Esq. mentions, because of the social compact but the social compact is not a license for tyranny by those we allow to govern over our affairs.
There are some people in this world who seek power for the sake of power over others, they are not good people. They do not have the best interest of their fellow citizens at heart.
I am not saying that mespo727272 and Buddha is Laughing are bad people just that some of their ideas would lead to tyranny if taken to their logical conclusion. They probably havent even thought about where those ideas would lead.
Mespo,
“Hamilton’s purpose in Fed 84 was a classic “sell job.*”” … that entire discourse on 84 was worth the price of this entire thread … thank you
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And I also thank Bob,Esq.
Lurker,
what BBB said
Mespo,
“Hamilton’s purpose in Fed 84 was a classic “sell job.*”” … that entire discourse on 84 was worth the price of this entire thread … thank you
“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)
I knew this back in 1979 which was long before any studies were published … sometimes I’m so damned smart it scares me … though I seem to get dumber as I age …
are arrived SB: have arrived