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
UPDATE:
SF approves healthier kids’ meals ordinance
San Francisco lawmakers have voted to override Mayor Gavin Newsom’s veto and to pass a law prohibiting fast-food restaurants from including toys with children’s meals that do not meet nutritional guidelines.
The city’s Board of Supervisors gave the measure final approval with an 8-3 vote on Tuesday. It goes into effect in December 2011.
Bob Esq.,
“Just in light of the Scalia dissent you pointed me to, seems to me that the McCardle tactic per reversing Citizens United would be embraced by the judicial realism of the progressives and pushed over the top by Scalia.”
Scary!
“Like I was saying, you wouldn’t need an amendment.”
It would if they wanted me to support it. 🙂
Lurker,
You can keep attributing random positions to me that have no relationship to my actual views all you like, but I hope you understand why I don’t feel the need to respond substantively.
James M.:
a new item for legislation. This has national security implications due to the possibility of reduced birth rates.
Have at it James.
“BPA destroys sperm
Talk about a kick in the you-know-where: A new study finds that a common chemical can destroy sperm.
And you’re exposed to this chemical nearly every day. In fact, there’s probably far too much of it inside you right now, as you read this.
It’s bisphenol A, or BPA, the hormone-like chemical used in plastics and can linings, and researchers say men exposed to it have a higher risk of problems with their contribution to the baby-making process.
In the new study, researchers examined urine and semen samples provided by 218 Chinese factory workers over a five-year period.
When compared to men with no detectable levels of BPA in their urine, the workers who had detectable levels of the chemical had a dramatically higher risk of sperm problems, including:
• Four times the risk of a lower sperm count;
• Triple the risk of lowered sperm concentration;
• Triple the risk of lower sperm vitality; and
• Double the risk of lower sperm motility.
On the bright side, BPA didn’t seem to have an impact on sperm shape or volume, according to the study in the journal Fertility and Sterility.
And that’s not the only bad news on BPA. Studies have also linked the estrogen-like chemical to other sexual problems, diabetes, heart disease, developmental issues and much, much more.
Despite all that, the Food and Drug Administration passed on a chance to take action on BPA earlier this year. They said they want to see more research.
But while the feds dither, others are taking action.
The Canadian government recently declared BPA to be toxic to humans and the environment, a move that will enable them to place tighter controls on the chemical, or ban it outright.
But for now, the best way to protect yourself and your sperm from BPA is by avoiding anything in a plastic container or a metal can–and that’s good advice no matter where you live.
And for maximum defense for your sperm, skip the soda too. One study earlier this year out of Denmark found that young men who drank a quart of soda each day averaged 35 million sperm per milliliter of semen… while those who drank little to no soda averaged 50 million.
Since Coca-Cola says its cans are lined with BPA and they have no intent to change them, maybe there’s a connection.
And for more reasons to skip soda, stay tuned later this week–I’ll tell you about a frightening new link between sugar-sweetened drinks and diabetes, even among people who aren’t overweight.
But for now, let’s get back to saving your sperm–because for many men, it’s as easy as making some careful, healthy choices. A diet rich in selenium, zinc and folic acid, or a supplement that can boost those nutrients, can help improve sperm quality and quantity.”
Oh there is a way to offset the harm done? So we don’t need legislation after all? Just like with the happy meals, the correct application of exercise on the little lard asses will cure childhood obesity. As it would with obesity in general.
So lets have legislation that requires every man, woman and child 15 pounds or more over weight to engage in physical exercise 2 times per day, 5 am and 7 pm for 45 minutes each time. Wouldn’t want to have to worry about extra costs with obesity once national health care kicks in. Cost savings are important.
We can also legislate what they need to wear for the exercise and to make sure they do it, we can have their yards and their houses hooked up to cameras so the government can make sure they are doing their exercise. With the Internet it will be easy.
James M.: Curtailing SCOTUS jurisdiction is constitutional. Furthermore, passing a law stating that a creature of statute can no longer rely on the legal fiction that it is a person in regards to the electorate also does not conflict with the original plan.
Regardless, working within the rules as they exist is constitutional par excellance.
What is not constitutional is legislation or executive orders that boldly states it will be ignoring entire sections of the constitution; e.g. warrantless wiretapping, suspending habeas corpus, executive assassination orders, etc.
BBB,
Just in light of the Scalia dissent you pointed me to, seems to me that the McCardle tactic per reversing Citizens United would be embraced by the judicial realism of the progressives and pushed over the top by Scalia.
Like I was saying, you wouldn’t need an amendment.
has the effect of
Not just that, but has the design of
Bob,Esq.,
Congress cannot amend the Constitution by a simple majority vote. Your combination of passing a law at odds with Supreme Court precedent and removing the ability of the Supreme Court to hear challenges to the law has the effect of interfering with separation of powers and amending the Constitution. As such, I think the Court would find that Congress had overstepped its constitutional limits, Ex Parte McCardle notwithstanding. Note that in McCardle, there was no dispute about whether the law rescinding jurisdiction was constitutional, just whether it applied in the case before the Court.
Bob Esq.,
“Was it the intent of the Framers to allow SCOTUS to re-draft Article III giving itself the power of judicial review…”?
The Court didn’t give the power of judicial review to itself. Congress, by the Twenty-Fifth Section of the Judiciary Act of 1789 granted it to the Court by specifically granting the Court appellate jurisdiction. The Supremacy Clause did the rest.
When a court, whose opinions are controlling upon all lower courts, refuses to give the law any force or effect because it finds the law to be repugnant to the Constitution, Laws (blah, blah, blah), it has the effect of repealing the law without actually doing so. If you read my comments on the other thread, you’d see that I only have a problem with lower courts exercise the same power (or enjoin other branches of government so as to have the same effect).
“so that it may later legalize the auctioning off of the franchise to corporations?”
Absolutely not.
“NY Ratifying Convention: “That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be encreased enlarged or extended by any Fiction Collusion or mere suggestion”.
The states were worried about creating a Court that would claim jurisdiction over state issues.
Unless I’m reading it wrong (which is possible while going in many directions), McCardle, a civilian U.S. Citizen, was prosecuted and adjudicated both by the military, and he was then refused appeal because the law that provided him a path for appeal was repealed. That’s disgusting! Suspension pretty much has the same effect.
James M.: “But Congress can’t use its jurisdiction over the courts to try to keep an unconstitutional law from being reviewed. Doing so would be tantamount to amending the constitution with a simple majority vote in both Houses. That’s what I meant when I said that the law taking away jurisdiction would itself need to be reviewed.”
You need to read Ex parte McCardle
BBB: “I think Ex parte McCardle goes against the intent of the Framers. Law, Yes. Good law; absolutely not.”
Was it the intent of the Framers to allow SCOTUS to re-draft Article III giving itself the power of judicial review — so that it may later legalize the auctioning off of the franchise to corporations?
NY Ratifying Convention: “That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be encreased enlarged or extended by any Fiction Collusion or mere suggestion”
So, if we were balancing the equities in light of the intent of the Framers, I’d say Ex parte McCardle is looking real good right now. McCardle also follows the letter of the constitution and not in a repugnant way like Dred Scott.
BBB: “Do you agree with Justice Scalia’s dissenting opinion in Hamden v Rumsfeld?”
It’s been years since I read the opinion. After a quick review of a summary, I’d say my first problem is with the statute he’s relying on for claiming the Court lacked jurisdiction. I have a hard time accepting that an act of congress is capable of trumping a specific prohibition written into the constitution; i.e. the Suspension clause.
Bob,Esq.,
But Congress can’t use its jurisdiction over the courts to try to keep an unconstitutional law from being reviewed. Doing so would be tantamount to amending the constitution with a simple majority vote in both Houses. That’s what I meant when I said that the law taking away jurisdiction would itself need to be reviewed.
Bob Esq.,
I think Ex parte McCardle goes against the intent of the Framers.
Law, Yes. Good law; absolutely not.
Do you agree with Justice Scalia’s dissenting opinion in Hamden v Rumsfeld?
Mespo,
The inability to measure the effect is exactly why I think the proposed ban would fail to meet with the Court’s criteria needed to create it. The Court’s holding in “Went for it” was meant to prevent government from affecting commercial speech simply because they think their “experiment” may have some positive effect.
Lurker,
Annoying, but old news.
See the wheat for home consumption case, Wickard v. Filburn
http://en.wikipedia.org/wiki/Wickard_v._Filburn
Mespo,
I agree with what you contend.
So you were joking yesterday.
BBB,
Congress controls the jurisdiction of the courts.
Separation of powers is not an issue, since the document itself is clear as to said congressional power to control the appellate jurisdiction of SCOTUS.
If there is a separation of powers problem, apparently the Court didn’t see it in Ex parte McCardle.
BBB:
Bottom line, BBB, is that we can only measure effect of the legislation, not deterrence in the mind of the affected citizen. If childhood obesity declines in SF we will have our “proof.” Until then it seem axiomatic that reducing the solicitation of children to eat obesity-causing foods will have the desired effect.
Bob, Esq.:
I contend that Hamilton never wanted a Bill of Rights, and that Madison grudgingly included one to enhance chances of ratification feeling personally that they were ‘unimportant,” but “salutary.” Both men were wrong as history has shown.
Here is an important excerpt from Madison’s speech introducing the BOR:
“The first of these amendments relates to what may be called a bill of rights. I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the Government, and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper; nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of, perhaps, by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore, the arguments drawn from that source were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.
But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.”
Mespo,
As the Court stated in Fla. Bar v. Went For It, Inc. (515 U.S. 618) “[the legislating body’s burden] is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.”
So, “San Francisco”, will your restriction in fact alleviate the obesity problem to a material degree? That is your stated objective; is it not?
Mespo (representing San Francisco) “Some things are simply a priori.”
Good luck selling that one. 🙂