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
mespo,
Yes, it was in jest … but I’ll defend it to a certain point.
I purposely left Democrats out simply to be cantankerous.
I really do believe in the sentiments of Locke’s quote from an earlier post:
“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.”
However the judgement as to what I should deny myself is based on my ability to reason … not the government’s.
Political parties are like Unions and other Professional organizations … good up to a point but beyond that point, no good at all. The difficulty seems to be in determining where the point is and not to go beyond it.
Mespo: “The state is empowered to act to prevent actual harm to its citizenry, and that is the point.”
Harm due to “the fraud and violence of others.” Duties of right. Not duties of virtue.
The state was never empowered to promulgate duties of virtue as if they were duties of right; or “guard [its citizens] from the negligence or ill-husbandry of the possessors themselves. No man can be forced to be rich or healthful whether he will or no.”
The line between the individual and the state that demands respect for a woman’s right of self ownership in re abortion is the same line you’re crossing by converting duties of virtue into duties of right in this matter.
The law is meant to protect the weak; not the stupid from themselves.
BBB
“Be careful what you wish for. I’m pretty sure the Republicans and those supporting the Tea Party *(I find no need to show such disrespect for those with whom I may disagree)* would see their opposition to present the same risk.”
*How “politically correct” of you. They called themselves teabaggers in the beginning and occasionally my conservative nature comes to the forefront and rails against change … I’m just showing my respect for the good ol’ name days … me and Bubba …
Of course they would see Democrats in that same light … that’s what makes them so dangerous … to the Democrats, but not to me.
Can you imagine a non-partisan election? No Party(s), no Party Platforms, no Party loyalties, no Party war chests … just individuals trying, each in his or her own way, to grab the voting public’s attention. Imagine corporations trying to figure out to whom they must donate and how, without the Party structure, to keep those recipients in line? What about Supreme Court nominees, or Federal judges, …. Governors, Mayors …
It would be chaos … for the politicians …
Blouise:
“The way I look at it … if the government is going to legislate in order to protect citizens from things that are bad for us then they should start by outlawing the Republican Party and all teabaggers.
If they aren’t willing to do that, then shut up and let us get on with living our lives.”
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If we don’t ban Repubs and teabaggers, should we ban pedophiles? While I know your comment was typed in jest, it raises an interesting point. Is one act of non-lethal sexual exploitation worse than decades of commercial exploitation resulting in permanent harm to the health of the person or possible death? I don’t know the answer but I am interested in the question, and I won’t dismiss it out of hand.
Bob,Esq.:
“Again, the government is not specifically empowered to promulgate duties of virtue; not matter how hell-bound that good intent might be.”
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Agreed, but that’s not what we’re talking about. The state is empowered to act to prevent actual harm to its citizenry, and that is the point. No one is advocating banning of these fat-laden, salt/sugar infused “meals,” merely regulating the commercial speech and other methods of merchandising of the madness. If we did the former, we are mandating virtue; if we do the latter we are protecting society’s most vulnerable.
James M’s question about banning cigarette advertising and sales to minors is a good one and illustrative of the point.
BBB,
It’s not a matter of did they, it’s a matter of could they constitutionally.
Some of the ingredients of our foods stretch the imagination way beyond belief.
Would you believe that some of the ingredients come from the oil fields in China?
Didn’t think so … but our clothing, toothpaste, etc. suffers the same Happy Meal beginning with a Sad Meal ending.
If the lizard brain federal congress can’t do anything about it, perhaps the states, counties, and municipalities can.
http://blogdredd.blogspot.com/2010/10/closer-look-at-momcoms-dna-2.html
Blouise “The way I look at it … if the government is going to legislate in order to protect citizens from things that are bad for us then they should start by outlawing the Republican Party and all teabaggers.”
Be careful what you wish for. I’m pretty sure the Republicans and those supporting the Tea Party (I find no need to show such disrespect for those with whom I may disagree) would see their opposition to present the same risk.
James M.,
There was a time (post advertising restrictions) when Marlboro offered “toys” (coolers, camping gear, etc.) in exchange for “proof of purchase” in the form of “Marlboro Miles” from packs and cartons.
http://www.rewardscards.com/Marlboro-Miles.asp
Did San Francisco ban that?
The way I look at it … if the government is going to legislate in order to protect citizens from things that are bad for us then they should start by outlawing the Republican Party and all teabaggers.
If they aren’t willing to do that, then shut up and let us get on with living our lives.
Of course I’m talking San Francisco here … the place that actually had an initiative on the ballot to name their sewage plant after George W Bush ….
Bob,Esq.,
Also, we do ban selling cigarettes to children.
Bob,Esq.,
I consider toys advertising, not a real part of the meal. So is that the key difference? That it’s a physical object they’re banning?
If cigarette manufacturers wanted to start including collectible toys with each pack of cigarettes, like an upscale version of Cracker Jacks, could San Francisco ban that practice? If so, what distinction are you drawing?
SwM,
P.S. … at that time “Blue-Laws” were in effect in Ohio. Only a few restaurants were open on Sundays … the “new” McDonald’s was one of them … in fact, the “new” McDonald’s was open 7 days a week and no business kept those kind of hours … talk about a slippery slope …
Swarthmore mom
1, November 12, 2010 at 11:45 am
Blouise I introduced my son to McDonald’s when he, my mother and I were on a driving trip to Michigan. He is was a few months short of being two. He instantly loved it, and pointed to it in every town we drove though after that. He begged for it a few years and then moved on to pizza. When he was in college he turned into a vegetarian that would only eat organic sustainable foods. Now he has relaxed a bit but I just sent him an email asking him what kind of turkey he would eat if any for Thanksgiving. He is in Argentina hiking now so he must be eating a variety of food.
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I don’t care how much my son-in-law paid you to advocate for him … he remains in the doghouse! 🙂
Seriously, when I was a kid the first MdDonald’s opened in our city and it was right on our route home from church. My mother, a big nutrition nut, hated the place. My father, a junk food nut, loved it but always bowed to my mother’s wishes when it came to what was “good” for the children. My father’s aunt (his deceased mother’s sister) lived with us and went to church with us every Sunday. My father denied her nothing. Once a month one of us kids would whisper to our great-aunt on the way out of church, “Don’t you feel like McDonald’s?”
We would climb into the station-wagon and she would say, “Stuart, I would like to stop at McDonald’s.” , and, of course, we would. My mother would roll her eyes, neither she or my aunt would ever get anything, but my father, my brothers and I would happily munch away on $.15 hamburgers, $.12 fries, and milkshakes. We kids knew better than to push our luck … once a month … no more than that.
Blouise,
Thanks.
For the most part (probalby due to you in a small town and I in a more populated area) we are on exactly the same page.
Blouise: “Now, I decided 39 years ago that the nutritional value of McDonald’s (and most other fast-food chains) fare was lacking and thus not the kind of food I wanted my children to consume on a regular basis. However, that was my decision to make … not the government’s.”
Testify.
BBB,
Q. “At what age do you think it is appropriate to send your child off to McDonalds under their own power?”
A. When they are able to get there safely under their own power … generally speaking, age 10, but perhaps earlier, given the circumstances of the neighborhood.
Q. “Is that an age where the toy in the “Happy Meal” was part of the childs motivation to go to McDonalds?”
A. Don’t buy “Happy Meals”. Even my son-in-law knows that. (The toys are cheap and often dangerous for the very young and unless the kid is starving, the majority of them only finish the fries.)
We take children to restaurants all the time … we start when they’re infants and train them to behave. The adults order fancy alcohol drinks that come with pretty fruit and little umbrellas or swords in fancy glasses and guess what … we don’t let the children touch them. Am I getting through here? (McDonald’s is not the best choice if training a child in restaurant etiquette … Ronald McDonald is the first hint)
By the way, if an 8 or 10 year old wants to go to McDonald’s under his/her own power, what do they use for money once they get there? I don’t give them money to go to McDonald’s … they have to dig into their own savings. Consistency …
The word “no” is never a word parents should be afraid to utter. Following the word “no” with an explanation is also quite helpful in advancing a child’s understanding. The fact that a child will continue to demand that to which one has denied him access necessitates repetition of said denial. Bothersome but all part of the parental responsibility.
Now, I decided 39 years ago that the nutritional value of McDonald’s (and most other fast-food chains) fare was lacking and thus not the kind of food I wanted my children to consume on a regular basis. However, that was my decision to make … not the government’s.
James M.: “What’s the difference between restrictions on cigarette advertising and this?”
Where’s the ban on cigarette sales in San Francisco?
Gyges,
Dystopia, in its generic sense, refers to an authoritarian/totalitarian society wherein the individual is completely subsumed into the collective.
When the state forces duties of virtue on the individual as duties of right, it’s either done under the guise of criminal law (Orwellian) or hidden under the alleged good intentions of the state — which are never questioned because the citizens are maintained as simply too passive to care (Huxlean).
I simply referenced Huxley to note Mespo’s benevolent tyrant approach to promulgating law.
To read into it any further is to simply miss the points I made while quoting Locke & Kant in regard to our social compact.
Blouise I introduced my son to McDonald’s when he, my mother and I were on a driving trip to Michigan. He is was a few months short of being two. He instantly loved it, and pointed to it in every town we drove though after that. He begged for it a few years and then moved on to pizza. When he was in college he turned into a vegetarian that would only eat organic sustainable foods. Now he has relaxed a bit but I just sent him an email asking him what kind of turkey he would eat if any for Thanksgiving. He is in Argentina hiking now so he must be eating a variety of food.