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
James M:
happy meals today, vegetable gardens tomorrow:
http://www.naturalnews.com/030418_Food_Safety_Modernization_Act_seeds.html
http://www.govtrack.us/congress/bill.xpd?bill=s111-510&tab=summary
“Senate Bill 510, the Food Safety Modernization Act, has been called “the most dangerous bill in the history of the United States of America.” It would grant the U.S. government new authority over the public’s right to grow, trade and transport any foods. This would give Big brother the power to regulate the tomato plants in your backyard. It would grant them the power to arrest and imprison people selling cucumbers at farmer’s markets.”
So James M. do you see where your restrictions could lead. This bill is being introduced to protect “human health” but it could be used to regulate my backyard garden and turn me into a criminal for giving tomatoes to my neighbor.
This type of thing is nonsense, it may have good intentions but it is nothing but a power grab by government and big business. Fascism is alive and well in the United States. Any senator who votes for this should be voted out of office.
BBB:
“There is no proof that the goal of reducing the consumption of unhealthy food by children is accomplished by this regulation.”
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Some things are simply a priori. There is likewise no proof that laws against larceny or murder reduce instances of those crimes. How could we “prove” that a person, after consideration of existing criminal law, refrains from an act? We accept a priori that they do.
BBB,
If you’re going to look at it like that, there are almost no restrictions on anyone.
I meant, “Without repercussions from the State”
James M.,
“Society is set up in such a way that we have traded the ability to murder people, for the assurance that we won’t get murdered ourselves, and so on.”
I must not live in the same country. I still have the ability to murder someone, and I have no assurance that I won’t get murdered.
Even in prison, people have the ability to murder (though their choices become much more limited, based on availability).
Gyges:
Do you have a study to back up your opinion about the wordiness of the description ‘nit picking’?
nit picking – Minute, trivial, unnecessary, and unjustified criticism or faultfinding
Without such a study your opinion is a poor refutation, in my opinion.
Lurker,
You keep just asserting things. How do you define freedom?
I also asked before, “what defines what our rights are?”
You and I are clearly not on the same page about what is obvious, so getting into definitions is the only way I see to keep having a conversation.
I’d define freedom as the ability to do what you want without outside interference. Society is set up in such a way that we have traded the ability to murder people, for the assurance that we won’t get murdered ourselves, and so on. As such, there’s lots of restrictions on our freedom, but most of them are beneficial, either to us personally or to society as a whole. It’s when restrictions on freedom don’t benefit us or society, but only a small class of people that we have tyranny.
The intent of Article II, Section 2 SB The intent of Article III, Section 2.
Why doesn’t spell check know which Article I am referring to? 🙂
The law removing jurisdiction would itself have to undergo EP, due process, and separation of powers review, which it would likely fail.
BBB,
Fair enough. Like I said, I was curious.
Occasional,
In my opinion BBB made a poor rebuttal. He can base his opinion on anything he likes, he just can’t expect me to find it convincing.
Just like you can be as wordy as you like, you just can’t expect it to make sense.
Bob Esq.,
I think your interpretation of Article III, Section 2 would present us with an extremely dangerous scenario. It effectively removes the third branch of government from the equation. It is a direct attack on our system of checks and balances, and demolishes the Separation of Powers Doctrine. If the legislature removes the Court, it becomes, in reality, the Court.
The intent of Article II, Section 2 is to balance the load between the Supreme Court and the courts created by Congress. I can’t go along with an interpretation that intends to remove the Court just because one branch doesn’t like what the other is going to say.
Further, the holding in Citizens United was not limited to corporations. It identified “associations of citizens” as being protected. I think any Act that is created with the intent of restricting the speech of any association of citizens (incorporated or not) would be ruled unconstitutional.
James M:
individual life is what makes rights possible in the first place. So we have laws to protect individuals from other individuals.
Because murder deprives an individual of his life it cannot be considered a “freedom”. That would make no sense whatsoever. Stealing is the same.
BBB,
Consider Article III, section 2: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
As I alluded to earlier, corporate person-hood is nothing more than a legal fiction.
Assuming your grass roots movement made its way into congress, why couldn’t it pass a law barring the existence of corporate person-hood in matters relating to the electorate while removing the Court’s appellate jurisdiction to hear matters regarding corporate person-hood solely in matters relating to the electorate.
Just a quick thought.
Occasional Commenter:
“In the opinion of this reader, Gyges is nit picking.”
did you do a study to come to your opinion/conclusion? 🙂
James M.,
There is no restriction of freedom that prevents me from murdering someone. There is no restriction of freedom that stops me from stealing my neighbor’s property. There is only the loss of freedom as a consequence that discourages most people from performing the act.
Gyges1, November 17, 2010 at 2:33 pm
BBB,
http://jonathanturley.org/2010/11/12/san-francisco-bans-happy-meals-and-other-fast-food-meals-served-with-toys/#comment-174326
Like I said “in my experience” is a poor rebuttal to a study. I agree with part of what you said, particularly the last sentence, I’d just like to see if you have anything other than your experience to justify thinking the study results are flawed.
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BBB 1.November 16, 2010 at 7:19 pm
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.
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Gyges expresses the opinion that BBB’s experience without a study to back it up is poor rebuttal to a study. Yet experience is the basis of BBB’s opinion that the study may be flawed. However, in Gyges’ opinion, in order for BBB to use experience to express the opinion about the study, BBB must first have a study to back up the experience upon which the opinion is based.
Gyges may express the opinion that BBB needs a study in order to express an opinion about a study but that is nothing more than Gyges’ opinion.
In the opinion of this reader, Gyges is nit picking.
Gyges,
Sometimes all I have is my own opinion. Though it is based on undocumented life experience, it is and should be view as my opinion. Any weight given to my opinion would be up to the reader.
Studies and polls are too often performed in such a way as to achieve a desired outcome. Sometimes questions are not asked, or are worded in such a way as to influence the desired response. Sometimes the answers that do not conform to the desired result are discarded so as to not appear in the resulting analysis.
When parents were asked how often the child asks to go to McDonalds, I would be interested in knowing if that was a spontaneous request or the result of the parent asking “What do you want for dinner?”. I’d also like to know if the parent usually selected the meal for the child or if it was left up to the child.
I looked around but was unable to find anything that would tell me which Happy Meal was the best seller over the past couple of years. I think that information should be a starting point to deciding how to approach the problem.
Bob Esq.,
I think any legislation would be subject to the same train of thought used as the basis for the Court’s holding in Citizens United.
How would the legislation you suggest not interfere with the Court’s holding; “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech”?
Further, I don’t see any change happening unless it comes from a grassroots movement. Out elected representatives are just too reliant on corporate and union funding.
Lurker,
Which is why I said I’d be interested in a discussion about amending the Constitution. They could be used, but they aren’t in our system of laws.
James M.,
There’s more to analyzing the architecture of the constitution than simply holding it up and declaring what you think should be the law based on what you ‘feel’ is right.
Clarifying the moral nature of the actions under consideration for legislation is a necessity for those showing true deference to the principles underlying the document. What was ‘self-evident’ to the founders seems to have been lost in (loose) translation by later generations. Given the parameters of our social compact, distinguishing between duties of virtue and duties of right brings the murky problem of the proper boundaries between the government and the individual into specific relief.
Your disinclination to this line of analysis has no bearing on its constitutional relevance.
Murder is not a right, nor is stealing. Therefor they cannot be considered when defining freedom.
Of course they can. You aren’t free to murder someone, so a limitation on murder is a part of the definition of freedom.
Also, you’re presuming again — what defines what our rights are?
So you think the basic right of property ownership is on par with murder?
What?