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
Blouise,
I think you missed my point.
At what age do you think it is appropriate to send your child off to McDonalds under their own power?
Is that an age where the toy in the “Happy Meal” was part of the childs motivation to go to McDonalds?
BBB
1, November 12, 2010 at 11:07 am
Blouise,
I don’t think we’re talking about children who can walk to McDonalds to get their meal.
I do think you’re on the right track with regard to exercise. ….
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Of course I’m on the right track but obviously my point was missed …
Goodness, insisting that if a child wants to eat McDonald’s he/she has to get there under his own power isn’t just about McDonald’s even though McDonald’s is the subject on this thread.
Such insistence is indicative of a philosophy on raising children that carries over to other habits. Television time is monitored, video game time is monitored, playtime for the exercise and socialization is encouraged, reading instead of watching television is encouraged … good lord, the list goes on and on.
Oh … never mind … legislate away
Approximately 2 months ago my 2 year old grandchild was introduced to the wonders of McDonald’s fries by her father, my now-in-the-doghouse son-in-law.
Every-time we drive by a McDonald’s she can be heard from the backseat saying, ” Mmmmm … Mmmmm … Mmmmm.”
There is no law to prevent such actions … not even fear of Mother-in-Law displeasure is a strong enough deterrent.
Once again I will find myself stating the obvious to a grandchild, “If you want McDonald’s, you have two feet to walk on, you have a bike to ride on … take your pick.”
Four out of the five older grandkids worked at McDonald’s during high school and at one time or another from each of them I received validation for my “get to McDonald’s under your own power” stance.
Raise ’em up right … and when they are older …
Blouise,
I don’t think we’re talking about children who can walk to McDonalds to get their meal.
I do think you’re on the right track with regard to exercise. If we wanted to work on the obesity problem, we would do better by making the nintendo only work for 30 minutes at a time. At ten, I would be off playing with friends for the entire day. Unless it was raining or too cold, we were outside. We would ride our bikes; walk the creek, climb a tree, or roller skate all over the neighborhood. Little girls played jump rope, hopscotch, etc. All the kids in the neighborhood would get together to play hide-and-go-seek, or kick the can. Tell me the last time you saw kids playing like that? Maybe our problem is that our neighborhoods aren’t as safe as they used to be. Maybe that is where the government should be playing a more active role.
I’m with mespo and BIL. I don’t think the city could dictate what the fast food chains can serve, but there’s a rational basis behind a law protecting children from aggressive advertising for a product that’s bad for them.
Bob,Esq.,
Can you really not see a difference between having a product be available on the market and heavily marketing the product to very young children? Just wait for next Pixar or Disney movie — you’ll see joint Burger King or McDonalds commercials selling kids the movie and the happy meal toy four or more times on hour on TV.
What’s the difference between restrictions on cigarette advertising and this?
Bob,
Aldus Huxley’s father was a writer.
I don’t think Huxlean makes sense in this context. It’s like referring to a society repressing sexual urges as Orwellian. It might be correct, but it’s such a minor aspect of the the man’s work that it would never be understood as the meaning.
If anything Huxley would argue against marketing towards children. His bent towards Eastern Mysticism often came through as a rejection of training children as consumers. One of the main tragic figures in “Island” is a teenager who reads Catalogs instead of pornography.
Lem’s “Eden” would be a better example of the kind of passivity you’re talking about. Plus, it’s got aliens, so that’s cool.
“Thanks, BBB. I assume your exercise of reason and restraint will do wonders with a “rational” screaming two-year old even as you attempt to maneuver the car. Anyone who suggests that perfect parenting will stop a screaming child has never been a parent … or, perhaps, even a child.”
Not only “been there; done that”, but have done so 8 times.
“What we found is that getting them off of “Happy” meals and other sugars and healing their guts, kept their brains for starving and helped them regain control over their feelings and behaviors.”
Then by God you should outlaw candy, breakfast cereals, slurpees, and sugar itself if you’re going to exercise any integrity in this matter; right?
Prof. Turley- “would not pass constitutional mustard…I mean muster.” Are you casting asparagus on McDonald’s cooking? Lettuce be reasonable. After all, they are entitled to due process of slaw. Justices Frankfurter and Burger would agree.
Excellent points all Blouise.
This is why we call them “duties of virtue”
“Juridical duties (duties of right) are such as may be promulgated by external legislation; ethical duties (duties of virtue) are those for which such legislation is not possible.”
For some years, I treated kids that were on Ritalin for being, basically, hyperactive, even though they have more specific diagnoses for these behaviors, like ADD/ADHD. What we found is that getting them off of “Happy” meals and other sugars and healing their guts, kept their brains for starving and helped them regain control over their feelings and behaviors.
So Well Done to SF for helping parents win the battle of saying NO to Drugs, even if they are disguised as food.
Mespo: “It’s supports legislation against the manufacturers of dangerous products or preventable harms to the public. How we apply that precept is up to us.”
Again, the government is not specifically empowered to promulgate duties of virtue; not matter how hell-bound that good intent might be.
Your desire to increase the power of the state to exercise power over the individual’s duties of virtue (i.e. converting them to duties of right) is just as contradictory to our social compact, if not more, than the right’s desire to imprison women for having an abortion.
I am a big fan of walking.
The McDonald’s in our small town is centrally located … forget the drive-up window. If your kid wants fries and a hamburger, tell him/her to walk to McDonald’s. It’s a good way to help them discern the difference between need and want.
As to Locke’s opinion … I’m going to suggest that walking to McDonald’s could be wrapped up nicely in an External/Internal Experience package however that ignores the following:
“It seems plain to me, that the principle of all virtue and excellency lies in a power of denying ourselves the satisfaction of our own desires, where reason does not authorize them.” (Locke)
Here’s a link that incorporates a paper from Locke as to the eating and drinking habits of children: (I always forget that Locke spent time as a tutor). Locke’s thoughts on “fruit” are quite entertaining as are his thoughts on “stools”:
Some Thoughts Concerning Education – Part II (of X) (To Edward Clarke, of Chipley, Esq. — Locke 1692)
http://www.fordham.edu/halsall/mod/1692locke-education.html
Bob,Esq:
“Fed 51 supports legislation against Happy Meals?!”
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It’s supports legislation against the manufacturers of dangerous products or preventable harms to the public. How we apply that precept is up to us.
Mespo,
That quote by the author of our restatement of social contract goes nowhere and you know it. In order for that quote to mean what you want it to mean, the distinction between alienable and inalienable rights becomes meaningless and the social compact becomes illusory.
“Unless I’m thinking of the wrong Huxley; I don’t think I’ve ever read anything by his father.”
Huh?
Re: ‘Huxlean/dystopian’
I was referring more to the distinction between Orwell’s version of dystopia and Huxley’s.
Instead of being made to embrace an Orwellian fear of the Happy Meal, Mespo would lull us into a state of complete passivity — accepting the absence of the Happy Meal; because, by Ford, it’s for our own good in our Nanny State.
BBB:
“Mespo, It’s called parenting. I prefer to handle that myself.”
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Thanks, BBB. I assume your exercise of reason and restraint will do wonders with a “rational” screaming two-year old even as you attempt to maneuver the car. Anyone who suggests that perfect parenting will stop a screaming child has never been a parent … or, perhaps, even a child.
mikeyes:
“Most of the “facts” you mention are only opinions.”
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Oh, mere trifling opinions, what value are they?
You might want to keep in mind that an “opinion” from judge or jury on the evidence against you can send you straight to death row.
Those “opinions,” based on empirical peer-reviewed studies, are from the CDC. Pray tell do you have better? Are we to assume that they are false? Why quibble with the manifest facts when you have no better information to offer?
Bob,Esq.
“NOT ONE of the founding fathers would agree with your argument.”
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I’m not so sure of that:
“The laws… which must effect [a people’s happiness] must flow from their own habits, their own feelings, and the resources of their own minds. No stranger to these could possibly propose regulations adapted to them. Every people have their own particular habits, ways of thinking, manners, etc., which have grown up with them from their infancy, are become a part of their nature, and to which the regulations which are to make them happy must be accommodated.” –Thomas Jefferson to William Lee, 1817.