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,
At one time, anyone could buy cigarettes too.
“just like we don’t allow targeting them for tobacco and booze”
Both of which are not legally for sale to minors. Make the sale of a Happy Meal or any of its contents, illegal, and I’ll gladly consent to a ban on advertisement of that product. To make the comparison when the product being sold is a lawful activity is comparing burgers to booze.
“As to my abilities to distinguish lawful from unlawful?”
That came from me, not Bob Esq., and I can’t help but stand by it when I see the same repeated (above).
Blouise,
How do the parents eat? Your conclusion only makes sense if the parents eat differently than the children.
Bob,
as if? Your misconceptions are your problem. Especially since you’ve insisted on putting words in my mouth.
If you’re waiting for an apology?
Pack warm because Hell will have frozen solid.
As to my abilities to distinguish lawful from unlawful?
Just as good as your, sport.
You’re inability to pull your head out of Kant’s ass and recognize that children are not adults and that exploiting them for profit at the expense of their health by using toys as bait is ethically indefensible compared to censure of commercial speech directed at them by a fiction would be your problem. “If you’re going to claim that purveyors of foodstuffs should not use toys, cartoon characters, etc., to sell children non-essential foods, THEN YOU MUST DO IT ACROSS THE BOARD. Cookies, cereals, canned pastas, all their cartoon spokesmen and TV tie-ins, you name it.” And I’d also have no issue with that restriction on commercial speech either. It’s not only the logical extension of the argument, but an even more substantive step to addressing the issue: don’t target children for food ads just like we don’t allow targeting them for tobacco and booze and instead leave the totality of the decision about what to feed a child to the parent without some company whispering sweet nothings in a child’s ear. We have myriad laws – good ones too – designed to protect children from adult predation. That a lot of bad laws have been enacted in that same name is irrelevant.
Or you can refuse to answer the question again.
In this thread, you have displayed every single bad habit you’ve accused Slarti (and others) of in the past.
Straw men.
False dichotomies.
Inserting premises into others statements.
Being evasive of question you don’t like.
You’ve done yourself proud.
You should drink more often.
Forgot to give the names of the 5 soups:
beef/vegetable, turkey or chicken noodle, tomato (milk base) rice, split-pea with kielbasi, bean with ham
Many, many other variations but these are the 5 most children will eat without a fuss
Gyges,
“That they consider food as a nuisance that they have to make time for is telling.” Nope … that was not my contention.
Mine was far harsher … it is not the preparation of the food that is the nuisance, it is the preparation of the proper food for the child that is the nuisance (the child is the nuisance). Advertising is the handy excuse for said behavior, not the reason for it.
I can write out five recipes right now for homemade soups These soups would contain almost all the required percentage of nutrients when coupled with a glass of milk, an apple or applesauce, and crackers or bread that a growing child’s body needs. These soups could all be prepared at the same time and from start to finish, including shopping for ingredients, would require no more than three hours total (not each … total meaning all 5) and at least 1 1/2 hours of that time would be the simmering process requiring only an occasional stirring. And … they taste great. Transferred from pot to freezer container … viola la … dinner in minutes all week. (don’t confuse these soups with canned soup … these are thick and substantial and “stick-to-the-ribs)
Advertising doesn’t keep a parent from doing this … but it certainly is handy as an excuse for parents not doing this.
Now … that being said, I still have to finish reading the link mespo provided as to the real harm advertising to children may cause.
“I have a very low threshold for advertising claims, so I’d hold that the phrase “You can use the force” and R2D2 showing up in your kitchen are both misleading to children, irrespective of anything else.”
The determination of being “misleading” must be based on the numerous complaints made by children after they realized that they couldn’t “use the force” or that R2D2 never appeared.
So your argument is that the ad causes your children to live in a fantasy world? But, somehow, all this “fantasy world” television that they’re watching doesn’t produce the same effect, because it’s not associated with food that tastes good?
“However, the bigger issue isn’t that any specific phrase in a commercial is misleading, it’s that the practice itself misleads children by making them want unhealthy foods because of the association with a beloved movie or character.”
Under your premise, when a toy is included with a healthy meal, isn’t it just as misleading? Doesn’t it cause the child to associate food with their “beloved movie or character”?
“It blurs the line between fantasy and reality.”
I sure am glad that Sesame Street hasn’t crossed that line. 🙂
Buddha,
I just quickly checked back in before the Jets/Browns game and had to clarify a few things.
I said: “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: “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.
Again, I said you ‘argue AS IF they were the PRIME SOURCES of such.’ Thus the reason your argument runs afoul of the rational relation test. That does not constitute inserting any premise into your argument. An apology would be nice.
Buddha: “I have in fact said this is gloss if not coupled with other tactics to reduce the societal costs”
Banning toys from fast food meals is rationally related to reducing societal costs how? Do you see the gaping hole in procedural reasoning you’re opening with this tripe? This isn’t a commercial speech issue so much as spreading the cancer of irrationality in the law. Can’t you see how this cancerous reasoning can spread to serving as justification for the passage of laws based on whim and caprice?
Buddha: “If that’s your straw man? Get a better one. That’s weak and you’re capable of better.”
Waiting for that apology.
Buddha: “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.”
Actually, that was just me thoroughly dehydrated.
Buddha: “Not once have I advocated NOT SELLING THE FOOD – which would be a case such as you suggest of nanny state regulation.”
Yet such an approach would be far more rationally related to your stated goals; assuming of course that the product is as inherently dangerous as you say children cannot comprehend.
Buddha: 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?”
Not if it’s framed in the same fashion as a bill of attainder. If you’re going to claim that purveyors of foodstuffs should not use toys, cartoon characters, etc., to sell children non-essential foods, THEN YOU MUST DO IT ACROSS THE BOARD. Cookies, cereals, canned pastas, all their cartoon spokesmen and TV tie-ins, you name it.
What are you advocating? Outlawing the presentation of one particular genre of foodstuff. Why? Well, reasonable minds want to know.
Halftime’s over.
Back to the Jets/Browns….
BIL,
You seem to have a problem distiguishing between lawful and unlawful activity. Can you provide an analogy that includes enticement to participate in lawful activity?
Toy +child (stipulated to have diminished capacity) +read 5 pages of a book; a parent who employs such should be jailed!
According to your premise, all advertising, when directed at children, is misleading; based simply on the recognition of their diminished capacity.
If diminished capacity is the problem, why not just prevent the sale of Happy Meals to those 13 years of age and younger. Isn’t that how we prevent those with a diminished capacity from buying a product?
Maybe we should just prevent the sale of all products to those with a diminished capacity?
This is nothing more than a local government’s attempt to parent for those who have a “diminished capacity” when it comes to parenting. I pity the parent whose child has decided to throw a tantrum due to the pirate on the Captain Morgan’s bottle having enticed the child into wanting a bottle or rum. (Have you ever tried to maneuver a car while your child was screaming that he wanted rum? Yes. That was a friendly poke at Mespo. 🙂
BBB,
I have a very low threshold for advertising claims, so I’d hold that the phrase “You can use the force” and R2D2 showing up in your kitchen are both misleading to children, irrespective of anything else.
However, the bigger issue isn’t that any specific phrase in a commercial is misleading, it’s that the practice itself misleads children by making them want unhealthy foods because of the association with a beloved movie or character. It blurs the line between fantasy and reality.
I see BIL has beaten me to the punch, while I was up prepping dinner, so I’ll wrap this up. The bottom line is that it’s misleading because it’s selling the kid Star Wars, not food, and children physiologically can’t make the distinction until their brains have developed past a certain point.
Blouise,
How is a society’s dietary habits anything but a facet of it’s relationship to food? You say the parents are too lazy\busy\whatever. That they consider food as a nuisance that they have to make time for is telling.
On a larger scale, the fact that they think going to a McDonald’s faster and easier than making a PB&J sandwich shows you just how effective the advertising is, it’s been drilled into their heads since they were kids. Heck, I used to fairly frequently say, “I’m running late, better just pick up a burger on the way.” In fact, stopping at a drive-through almost always adds 7 or 8 min. and making the sandwich adds 2-3.
Not advertising to kid’s won’t solve the obesity problem anymore than not gearing tobacco products to kids solved the COPD problem. It WILL however work in favor of raising a generation who has a healthy relationship with food. Which is part of what needs to happen if we’re going to fight the obesity problem
That being said, I’m not sure this law will be effective, but placing the burden solely on the parents forgets exactly why it is they have the attitude that they do. It might be to late for them, but their children aren’t set in their ways yet.
I think the best point that’s been made got lost; If the toys weren’t effective in getting costumers in the door, why would they corporation use them?
Blouise and Buddha,
I had a completely different strategy, I was nice to the grandparents and younger siblings. Nothing wins parental trust like taking the little brother with for mini-golf once in awhile.
Bob,
One further aside, THIS is the most Huxlean thing that’s been said so far.
“Consumerism is a form of slavery.”
Or need I repeat that old pedophile trope, “Want some candy, Little Girl?”
Variation of the same mechanic.
Shiny object + hidden costs + child + diminished capacity =
Misleading
Toy + Child + Diminished Capacity =
Misleading
Although I haven’t as yet had the time to finish reading the 2nd link mespo presented and am thus not ready to cast a vote … reading the latest posts has brought to mind a few remembrances:
1. I don’t recall exactly what age other than I was younger than 6 years of age (late ’40’s/early 50’s), I remember quite clearly sitting at the kitchen table trying hard to keep my excitement under control as my mother opened a small package that had come in the mail and was addressed to me. Inside that package were three figures that I had saved box tops towards acquiring. Over the preceding months my brothers and I had consumed a ton of Rice Krispies in order to get enough box tops to send off to the manufacturer. In the package my mother was opening were the magical figures of “Snap, Krackle, and Pop”. one figure for each of my two brothers and I. (brother #3 had not yet been conceived). For the next 6 months “Snap”, my favorite, sat by my breakfast place-mat every morning. I no longer eat Rice Krispies except as an ingredient in baked goods, but my loyalty to Kellogg’s is firm … proof positive that marketing to children works.
2. A scene from the movie “A Christmas Story” next comes to mind. Ralphie has waited weeks for his “Little Orphan Annie Decoder Pin” only to find that it is nothing more than an advertisement for “Ovaltine”. ( At the time Ovaltine was manufactured by a company in Switzerland.) It’s a nostalgic scene for most adults as we’ve all experienced the childhood disappointment of false advertising.
If the government wants to establish laws relating to the nutritional content of what can be marketed as a “meal”, I don’t think I would have a problem with that. However, restrictions on how it can be marketed is another story.
Do you think this commercial had children as the intended audience, or do you think it was directed at those who are the real problem (parents who think Yes is more important than No)?
http://www.youtube.com/watch?v=iQwbReKEvwU
(embedding was disabled)
BIL and James M.,
Here’s a Happy Meal commercial. Please establish your case. Demonstrate how you find it to be misleading.
[youtube=http://www.youtube.com/watch?v=SNO76ArDKc4&fs=1&hl=en_US]
If you don’t find that commercial satisfactory to support your claim, feel free to submit your own.
BBB,
It doesn’t have to be fraudulent, just misleading. I think you’ll find that when you’re directly targeting your ads at young children, the standard for what is misleading can be fairly broad (see mespo’s links, above). I think this definitely qualifies.
Then ban the product!
Why does it have to be all or nothing? We want to curtail advertising aimed at kids as a first step in addressing how people interact with food. We don’t want to dictate what people can eat. Can you really not see a difference? From your perspective is one really just as bad as the other?
BBB,
You are failing to recognize
1) The test is “concern lawful activity and not be misleading.” While advertising in general is lawful, the practice of marketing to children in this way is inherently misleading – an inducement to purchase unrelated to the true nature of the product. Disagree all you like. Being wrong is your right. The test is the test and the test says “misleading”. “Here’s a toy! Eat this crap.” is certainly misleading to a child. We aren’t talking about adults with capacity here.
2) “Substantial interest” doesn’t equate to draconian reductio ad absurdum. Specious reasoning at best. Accepting my reasoning in no way requires banning all unhealthy products let alone reading and video games, merely accept that marketing unhealthy products to children – be they food, tobacco, alcohol or drugs – is inappropriate as children a) have diminished capacity and b) are the weakest members of any society and protecting the weak and defenseless is an appropriate function of government and c) that health care is a substantial interest – including preventative health care.
“No. Advertising to children for a product with inherent risks by using an inducement not related to the qualities of the product can be characterized as misleading as a form of fraud in inducement.”
I strongly disagree! Further, if such could be characterized as fraud, there would be no need for the ban. We already have (constitutional) laws on the books that defend the general public against fraud.
“2. Is the asserted governmental interest substantial?
Yes. Health care provision and costs are a substantial interest. “Healthy citizens are the greatest asset any country can have.” – Winston Churchill”
Then ban the product! You can’t, because the product has not been determined to be dangerous unless abused. If we are to accept your premise we should ban all products or activities that are unhealthy. Nintendo results in sedentary children, which results in obesity. Ban most television. Ban reading!!!
Mespo,
Do you agree with Buddha’s analysis of the first two tests?
BBB,
In re: Central Hudson Gas
1. Is the expression protected by the First Amendment? For speech to come within that provision it must concern lawful activity and not be misleading.
No. Advertising to children for a product with inherent risks by using an inducement not related to the qualities of the product can be characterized as misleading as a form of fraud in inducement.
2. Is the asserted governmental interest substantial?
Yes. Health care provision and costs are a substantial interest. “Healthy citizens are the greatest asset any country can have.” – Winston Churchill
3. Does the regulation directly advance the governmental interest asserted?
Yes, by removing a motivation for an unhealthy choice advertising foists upon children.
4. Is the regulation more extensive than is necessary to serve that interest?
No. In fact, merely limiting advertising is about as minimal a step that can be taken.
If challenged, given that other types of commercial speech is regulated for similar reasons, it is likely lawful, but in the post-Citizen’s United (a manifestly unconstitutional and fascist decision by the Roberts court), nothing is certain with the currently compromised SCOTUS.