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
BBB:
Here’s the test. You tell me:
“Although the Constitution accords a lesser protection to commercial speech than to other constitutionally guaranteed expression, nevertheless the First Amendment protects commercial speech from unwarranted governmental regulation. For commercial speech to come within the First Amendment,(1) it at least must concern lawful activity and not be misleading. (2)Next, it must be determined whether the asserted governmental interest to be served by the restriction on commercial speech is substantial. If both inquiries yield positive answers, (3)it must then be decided whether the regulation directly advances the governmental interest asserted, and (4)whether it is not more extensive than is necessary to serve that interest.” [numbers added to the syllabus except]
Was Justice Scalia on the Court back in the 70s?
OK. So not being able to remember the 70s does present a problem. 🙂
The Court determined that First Amendment Rights extend to commercial speech back to the 70s. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0425_0748_ZS.html
In 1980 the Supreme Court established a 4-part test to see if the speech is protected.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0447_0557_ZS.html
Subsequent cases have helped to refine the application of that test, but have always held firm in the direction of protecting that speech.
Does the San Francisco ban meet the test? Is the ban lawful?
Regardless of where you stand on the question of marketing to children (which should also include the marketing of everything from Disney movies, to Hannah Montana, and Girl Scout Cookies), if challenged, is the proposed ban lawful?
Bob,
1) “This has nothing to do with Scalia or corporations and you know it. This is simply another salvo in the ‘WE know what’s good for you’ legal war.”
Don’t tell me what I know let alone attribute what I say to a group motive. This is about corporate commercial speech that targets children, children who by nature and legal maxim lack capacity for formulation of rational agreements. Nothing more, nothing less. For the rest, see mespo’s research and answer above concerning ads targeting children and their cognitive abilities.
2) “Consider your anemic reasoning here. Fast food restaurants do not have a monopoly on fat, salt and sugar; yet you argue as if they were the PRIME SOURCES of such. This is where your grand plan runs afoul of the rational relation test.”
Don’t insert premises into my argument – your favorite accusation against Slarti. I have NOT ONCE said this was a case of “PRIME SOURCES” or solely or any other words of singular refinement to describe this issue. I have in fact said this is gloss if not coupled with other tactics to reduce the societal costs (primarily medical) of high energy/caloric imbalanced foods, but that limiting commercial speech doesn’t impact individual rights or choice.
If that’s your straw man? Get a better one. That’s weak and you’re capable of better.
3) The rest of that drivel? You’re still spectacularly full of shit. If it took a night of drinking to formulate that answer? I suggest getting more sleep.
Not once have I advocated NOT SELLING THE FOOD – which would be a case such as you suggest of nanny state regulation.
Answer the question as framed by mespo: “The fundamental question is do you believe the government has any role to play in protecting children from the harmful effects of advertising? If not, your position is consistent, if not morally defensible. If so, you reside in James M’s camp with me, disagreeing only in degree.”
Because that’s what this is about, not your imaginary “WE know better than you”. I don’t care if you have a kid and want to feed them a diet of sugar cane, bacon and salt licks, but I don’t want some corporate profit motive trying to disguise itself as a free speech issue when a) corporations are not people and b) no individual has been prohibited from buying or consuming a damn thing – only how and to whom that item is marketed. Just. Like. Smokes and booze.
Have you recently suffered a blow to the head? Because you’re arguing this like someone with a concussion.
Buddha: “Face it, Bob. On this particular issue, your Feces Meter is reading “full”. Unless you’re now going to side with Scalia now in thinking a corporation is a real person, no one’s speech rights are being impaired nor is restricting advertising an overreaching application of the Commerce Clause like outright banning the sale of Happy Meals (even sans toys) would be.”
This has nothing to do with Scalia or corporations and you know it. This is simply another salvo in the ‘WE know what’s good for you’ legal war.
Buddha: “Fast food’s good for you though, eh?”
No better than some greasy spoon diner or any other sugary product pushed by cartoon characters.
Buddha: “Consider in addition to the proven medical links between fat, salt and sugar to obesity and the associated health problems they lead to, the case of Morgan Spurlock.”
Consider your anemic reasoning here. Fast food restaurants do not have a monopoly on fat, salt and sugar; yet you argue as if they were the PRIME SOURCES of such. This is where your grand plan runs afoul of the rational relation test.
Buddha: “In his documentary film Super Size Me he demonstrated the negative health effects of McDonald’s food by eating nothing but McDonald’s three times a day, every day, for a month.”
And what if you ate only pizza or Chinese food every day for a month?
Buddha: “After his McBender, he went on a detox diet where all caffeine, sugar, and processed food were cut out. His response to the dietary change? He went through massive withdrawal like a drug addict, including DT’s, that lasted 3 days. His body had grown so accustomed to a high energy density (from fats and sugars) diet, eating a more natural diet made him sick until his body could readjust.”
And how many mothers are doing this to their children; and dare I say how many kids were enticed into eating nothing but Happy Meals for a month due to those sinister alluring toys?
Buddha: “But fast food is good for you – let alone marketing it to children who lack – what is that again Bob? Lack capacity to grant consent – informed or otherwise – ring a bell?”
Seriously?
Show me where the kid (aged 6-10) has the capacity to act on your suggestive advertising. The advertising is directed at the children ONLY to the extent that they nag their parents to relent. And I dare you to show me a kid who rides his bike to a McDonald’s to buy a Happy Meal and isn’t laughed at by his friends.
Buddha: “Because, to use Kant’s term, children lack the ability to use “practical reason”. Diminished capacity is also why the law restricts their ability to contract too. But we should let fake people sell them what-the-Hell-ever by whatever means gets their little unformed minds in the door and makes a buck, eh?
That’s what’s known as being spectacularly full of shit, Bob.”
I’m full of shit? Where are all these kids getting all this money and free time to buy three Happy Meals day for months at a time? What’s the weather like on your planet?
Buddha: “The categorical imperative is something a person must be in possession of practical reason to not only understand but apply and children, by definition, lack practical reason.”
Show me the maxim that you would will to become a universal law in this case Buddha. I’m full of shit? You’re not even close to formulating a practical rule; much less a universal maxim. You can’t even establish a practical nexus between your coveted law and the alleged end you desire.
Junk food giants weighing in on government food policy, which shouldn’t come as a surprise:
McDonald’s, Pepsi, KFC Tapped To Help Write UK Obesity, Alcohol Policy
First Posted: 11-13-10 06:09 PM
“The Department of Health is putting the fast food companies McDonald’s and KFC and processed food and drink manufacturers such as PepsiCo, Kellogg’s, Unilever, Mars and Diageo at the heart of writing government policy on obesity, alcohol and diet-related disease, the Guardian has learned.”
http://www.huffingtonpost.com/2010/11/13/mcdonalds-pepsi-kfc-uk-obesity-policy_n_783175.html
mespo,
Book Club has gone home and I read the first link but am only on page 4 of the second … my eyes are drooping and I find myself having to read the same paragraph over and over so I’d best stop and get myself to bed.
I will finish the report tomorrow evening and respond.
Keep in mind that I don’t consume hardly any fast food and don’t permit children to do so, so, to tell you the truth, I don’t even know what a Happy Meal looks like or what is in it. Back in ’79 when Happy Meals were introduced I remember looking at them and deciding that there was no nutritional value for my 7 and 2 year old. I believe the enclosed toy was a crayon and a pad of paper with figures to color … haven’t seen one since.
It is quite possible that my ignorance of the product extends to an ignorance of the overall effect the advertising of the product has on the population. If that is the case then the second link you provided should fill in the blanks and perhaps change my mind.
Also keep in mind that my profession as a musician was one of dealing in illusions. The illusion of joy, sorrow, love, anger all performed on a stage covered with illusions (sets). I was paid and willingly accepted a great deal of money to create and sell an audience an illusion that transported them out of their day to day lives. I will have to explore the possibility that I resist the idea of government interference in the field of advertising because, sub-consciously, I am defensive about the whole creation-of-illusion field … a blind spot.
“Advertisements actively encourage them to seek happiness and esteem through consumption.”
Consumerism is a form of slavery.
Great post, mespo.
mespo,
Great links. I’m going to read through them tomorrow.
Sorry, Buddha, pick up your camp guide at the mess tent!
Blouise:
Here’s also an executive summary of a supplemental study done in 2006:
http://static.publico.clix.pt/docs/pesoemedida/Iom_Food_Marketing_To_Children_Exec_Summary_2006.pdf
Blouise:
“I do believe that the government has a role to play in protecting children from the harmful effects of advertising but I do not agree that a toy in a Happy Meal (using that term to represent all fast food meals/toys)is harmful.”
****************
The research says otherwise:
“Experts say that children don’t understand persuasive intent until they are eight or nine years old and that it is unethical to advertise to them before then.[40] According to Karpatkin and Holmes from the Consumers Union, “Young children, in particular, have difficulty in distinguishing between advertising and reality in ads, and ads can distort their view of the world.”[41] Additionally children are unable to evaluate advertising claims.
At the same time, Richard Mizerski, an Australian professor of marketing, observes; “their cognitive structures are beginning to form and they are most sensitive to external influences.”[42] This is especially a problem when advertisements appear on school walls and posters and book covers and gain legitimacy from the supposed endorsement of the school so that children think they must be true.[43]
One study by Roy Fox, Associate Professor of English Education at the University of Missouri-Columbia, found that children watching athletes in television commercials thought that the athletes paid to be in the advertisements to promote themselves rather than the products. They believed children in advertisements were real rather than paid actors and they often confused advertisements with news items. Generally they did not understand the commercial intent and manipulation behind advertisements.[44]
Older children pay less attention to advertisements and are more able to differentiate between the ads and TV programs[45] but they are also easy prey for advertisers. Around puberty, in their early teens, children are forming their own identities and they are “highly vulnerable to pressure to conform to group standards and mores.”[46] At this age they feel insecure and want to feel that they belong to their peer group. Advertising manipulates them through their insecurities, seeking to define normality for them; influencing the way they “view and obtain appropriate models for the adult world;” and undermining “fundamental human values in the development of the identity of children.”[47] Advertisements actively encourage them to seek happiness and esteem through consumption.
It is for these reasons that marketing to children should be carefully restricted. In particular advertisements aimed at children under the age of 9 years old, including on the internet and during children’s television programmes, should be banned. Such advertising subsidises the cost of these services at the cost of our children’s values, sense of well-being, health and integrity. Moreover the future of the planet is at stake if we allow advertisers and marketers to turn children into hyper consumers of the future.”
–Sharon Beder, ‘A Community View’, Caring for Children in the Media Age, Papers from a national conference, edited by John Squires and Tracy Newlands, New College Institute for Values Research, Sydney, 1998, pp. 101-111.
http://www.uow.edu.au/~sharonb/children.html#RTFToC4
I think BIL has already responded better than I would have. I hope everyone enjoys their evenings.
I’ll just add this to Bob,Esq.:
The government is doing the deciding/parenting for the parents
No. It’s not. You can still buy a child sized McDonald’s meal for your kid. No decision is being taken away from the parent. No parenting duty is being usurped. All that changes is that McDonalds can no longer include a plastic toy.
Are you seriously arguing that there is a constitutional or natural right to buy a cheap plastic toy along with a fast food dinner?
That must be what you were arguing for when you said the law was “trampling on the rights of individuals”.
Or is there some other right that I’m not seeing?
Way too late to wade into this thread. Having said this, I caught the following on NPR this morning, as I was rushing to work:
Scott Simon
San Francisco Orders Up An Angry Meal
http://www.npr.org/2010/11/13/131290865/san-francisco-orders-up-an-angry-meal?ft=1&f=1053
Cute song at the end by Fred Mollin and the Blue Sea Band.
=======
I used to buy the toys and serve them with something else — the toys can be purchased without the Happy Meal itself.
With regard to the larger issue, I’m in agreement with Julia Child: “Moderation. Small helpings. Sample a little bit of everything. These are the secrets of happiness and good health.” (I once heard her say how much she enjoyed the fries at McDonalds, FWIW)
(Thanks for the thought-provoking exchange of ideas.)
*blush*
Enjoy the club and the wine, but remember! If the wine stops breathing, mouth to mouth resuscitation works but it can be hard on the first responder the next day.
My Book Club is due at 9 and I have to give the wine some time to breath … talk to you later … dimples.
Buddha,
” But I always left them with the impression their daughter was safe with me”
Now there’s a truth in advertising the government should sink its teeth into!
Mespo,
“The fundamental question is do you believe the government has any role to play in protecting children from the harmful effects of advertising?”
=======================================================
I admit I’m having a problem with this as I usually agree with you and Buddha and I don’t agree with you all on this. I have to figure this out.
I do believe that the government has a role to play in protecting children from the harmful effects of advertising but I do not agree that a toy in a Happy Meal (using that term to represent all fast food meals/toys)is harmful.
Blouise,
To further address your teen boy comment:
I had the advantage of angelic blue eyes, a trust inducing smile and dimples you can drive a Jeep down, but I always relied upon my gift of gab. I liked to show up purposefully early to chat up “Mom”. I had three sets of ploys too: mom, dad, or mom and dad together. But I always left them with the impression their daughter was safe with me . . . and then me and their progeny would go suck face and play “Where’s My Hand?” at an undisclosed location.
Blouise,
“Did you try these tactics with your grandfather?”
Not only no, but Hell no.
You had to get up day before yesterday to even try to pull one over on him.
mespo,
Seconded. (pst! Hey, I’m in the camp too, dude. I’m the green guy sitting on the cooler.)
I suspect Bob is doing what he likes to do – be a gadfly – although any man who mixed single malt and fried cheese is capable of ethically dubious actions.
Bob,Esq.
1, November 13, 2010 at 8:05 pm
Buddha (Holden),
I’ll finish my reply to you later as I’m late for a night out with my friends at a local pub; wherein we will be imbibing ourselves with that demon (single malt scotch) whiskey and perhaps some deep fried cheese sticks.
While I’m gone, it would be greatly appreciated if you refrained from petitioning my local government in some dumb-ass scheme to save me from myself.
Your courtesies in connection with this matter are greatly appreciated.
Bob,
Founder and member of The Ninth Amendment Preservation Society.
======================================================
Damn … Bob is actually funny! I laughed out loud … and still am.
Quick … write out a petition … I don’t know something that requires him to stay home on Saturday nights and drink cheap whiskey whilst reading Ralph Nader quotes.