We have previously discussed the tendency of the United Kingdom toward “nanny state” legislation. Now, starting in 2023, the government of Prime Minister Boris Johnson is moving to ban junk food advertising online and before 9pm on TV — a move that will not only limit speech rights but undermine broadcasters who rely on such revenue. It is a move reminiscent of the Big Gulp laws of former Mayor Michael Bloomberg in New York as the government moves to protect consumers from themselves. As will come as little surprise to many of this blog, I oppose such moves both as a limitation on speech rights and the freedom of choice.
The ban would be imposed on all paid-for forms of digital marketing, including ads on Facebook, paid-search results on Google, text message promotions, and paid activity on sites such as Instagram and Twitter. It is hard to imagine the government will stop there. These laws (like limitations on free speech) are insatiable. Activists will likely move against sports sponsorships, billboards, and other others of advertising as did tobacco opponents.
We have a problem with obesity worldwide. However, rather than rely on education, the natural instinct for many is to limit the choices or speech of others. It is an impulse to compel rather than to persuade.
The law focuses on foods high in fat, sugar, and salt (HFSS). These HFSS are defined on a scoring scale set by the UK’s Nutrient Profiling Model. Examples include soft drinks, drinks with added sugars, cakes, candies, cereals, pastries, ice cream, pizza, chips, and prepared meals. However, the restrictions also cover items honey and jam as well as zero-sugar drinks and McDonald’s nuggets.
Advocates also want to ban “buy one get one free” or “three for the price of two” price promotions for HFSS products as well as free refills on soft drinks. They also want to prohibit HFSS foods being placed in checkout aisles, at the ends of store aisles, or in store entrances.
Under the law, however, chains like McDonald’s can still advertise so long as the ads do not feature HFSS foods.
We have been discussing the continuing erosion of free speech protections in the United Kingdom (here and here and here and here and here and here and here). Once you start as a government to criminalize speech, you end up on a slippery slope of censorship. What constitutes hate speech or “malicious communications” remains a highly subjective matter and we have seen a steady expansion of prohibited terms and words and gestures. Even having “toxic ideologies” is now a crime. As noted in a prior column, free speech appears to be dying in the West with the increasing criminalization of speech under discrimination, hate, and blasphemy laws.
What is intolerable in nanny states is choice. Many cannot abide the notion that anyone would continue to make choices that they consider to be the wrong choices for a healthy lifestyle. They obviously can make such choices for themselves but they want to make them for others through bans and sanctions. Every cause is deemed more pressuring than some abstract notions of free speech or free choice. The loss of a few rights is a small price to pay to lose some weight — particularly when you do not value the choices being limited or curtailed.
Obesity is a major health crisis for individuals and society. The challenge for a free society is to tackle our problems without limiting those freedoms which define us. That includes not just the good but bad choices that we make in our own lives.
Stop treating adults like dependent children or intellectually impaired.
It is the individual adult’s responsibility to govern what goes into their mouths, how often they exercise, and any other move they make.
Keeping unhealthy food ads away should not be the purview of a Western government. The disdain with which they view the general public is appalling. The government ruling class are behaving like landed gentry ruling over their tenants.
Don’t worry Professor Turley, when they start messing with an Englishman’s fish and chips their political careers will soon come to an end by their own design.
How did the wonderful 18th Amendment work?
It will not be long until they get around to banning advertising for meat, and eventually animal products. The rationale for taking those steps is stronger (in the censors’ minds) because producing animal products harms not the the individual(s) who consumes animal products but everyone because of the alleged environmental impact.
Instead of banning the advertising, require them to include the potential side effects of the ingredients in the food, especially sugars. A very informative book is The Case Against Sugar by Gary Taubes.
Among Americans, diabetes is more prevalent today than ever; obesity is at epidemic proportions; nearly 10% of children are thought to have nonalcoholic fatty liver disease. And sugar is at the root of these, and other, critical society-wide, health-related problems. With his signature command of both science and straight talk, Gary Taubes delves into Americans’ history with sugar: its uses as a preservative, as an additive in cigarettes, the contemporary overuse of high-fructose corn syrup. He explains what research has shown about our addiction to sweets. He clarifies the arguments against sugar, corrects misconceptions about the relationship between sugar and weight loss; and provides the perspective necessary to make informed decisions about sugar as individuals and as a society.
https://www.amazon.com/Case-Against-Sugar-Gary-Taubes/dp/0307701646
Candy-asses
Jonathan: Your choice of the title of your column (“Out of Sight, Out of Mind?”) applies but for a different reason. First, you claim the UK ban on TV junk ads before 9 pm is another example of the “nanny state” imposing its “limitation on speech rights” of corporations to advertise whatever they want. Actually, the UK ban is a rather mild attempt to deal with a serious health issue. Childhood and adult obesity in the UK, as it is in the US, is a huge problem. This imposes a huge financial burden on the UK public health system. But the ban is not total. McDonalds can still advertise on public TV as long as no HFSS products appear. Brands can also promote their junk food products on websites and social media. Junk food ads will also be allowed through podcasts, radio, billboards, on buses and in railway stations and airports .Of course, you could urge the McDonalds of this world to sell more healthful food choices. But you apparently think any restrictions on a corporation’s right to peddle products that will lead to severe health problems are a bridge too far.
The real threats of the “nanny state” are also right here in the US. Earlier this year Florida’s Republican Governor Ron DeSantis signed legislation banning the teaching of “critical race theory”. DeSantis signed another bill to ensure high school students “receive instruction on the evils of communism and totalitarian ideologies”. If that was not enough of a “nanny state” DeSantis just signed a bill requiring all state colleges and universities to annually survey students, faculty and staff about their beliefs to ensure “viewpoint diversity and intellectual freedom”. DeSantis claims, without any evidence, that schools are “indoctrinating” students and are “hotbeds of stale ideology” and “orthodoxies”. DeSantis didn’t explain what “orthodoxies” he had in mind but it is clear he thinks students need to be instructed on the “evils of communism” and the threat from instruction on CRT theory. There has been a lot of pushback from Florida’s students and teachers. They say the Republican controlled state legislation is having a chilling effect on instruction and “freedom of speech”. It is an attempt to intimidate teachers and students by imposing a litmus test on instruction. That, one would think, should be of concern to you. Guess not. When it comes to discussing the threats to freedom of instruction and the right for schools and universities to establish their own instructional materials coming from Florida’s “nanny state” you are truly “out of sight, out of mind”!
As the old saying goes, Power Corrupts, absolute Power Corrupts ABSOLUTELY! If in doubt think about the last 15 or so months.
And Happy birthday to the all knowing George Orwell.
If we could only get the U.S. Government to ban advertising of pharmaceuticals perhaps we could actually become healthy. They are as much a danger as food groups that some abhor.
The Constitution has been nullified in large part.
Americans enjoy all the freedom the communists (liberals, progressives, socialists, democrats, RINOs) allow.
Do the people make their own law or does the intelligentsia?
The U.S. government has no power to nullify the constitutional freedom of ingestion.
Americans enjoy the freedom of ingestion per the 9th Amendment, understanding that laws against property damage and bodily injury prevail.
The fact is that Congress shall make no law prohibiting the freedom of ingestion of any substance.
Is there a reasonable and effective law against suicide – what is the penalty for suicide?
How many people drink gasoline?
Americans were given the freedom of self-governance and they did it – it’s called the Constitution.
If you’re compelled to warn people, start a free enterprise with a mission of “warning.”
Freedom and Self-Reliance is the American thesis.
I enjoy British TV and movies but I don’t give a flip what they do or do not do in the UK. My ancestors fought for independence from Britain in the 1770s-80s and won. What the British do in legal terms has no binding on we here in the United States. I know this a blog and Turley is free to write on whatever he pleases, just as I am on my own blog (although I don’t write on that much because I’ve got better things to do.) Still, there are a lot of issues here at home that deserve scrutiny. If the Brits want to ban junk food advertising, let ’em. They are not free but live in a country ruled by a monarchy and a parliament. Let it go!
“The ads take aim and lay their claim to the heart and the soul of the spender.” Jackson Brown hit the nail on the head. Limiting free speech is a touchy subject yet the consumer is barraged with compelling advertisements to rush out and buy the triple meat, triple cheese, triple bacon burger on a buttered bun without being given warning that a heart attack is eminent. Oh…supersize the fries and wash it down with a tasty sugar drink…don’t forget to top it off with a cookie.
A consumer is like a sixth grade football team going up against the NFL Super Bowl champs. The consumer must be armed with the ability to understand how the food industry games the consumer. Why is a can of soup 3.5. Servings? Because the contents can be skewed. A salt content of 300 mg (13%) doesn’t sound as bad as 45.5% for a single can and so forth.
The food industry has one goal in mind, sell more stuff, health be damned. Diet food? Wonderful! Now I can eat twice as much.
I commend you for advocating free speech but the playing field is not level. Solving the problem of rising heart disease and diabetes is virtually impossible in our present environment. It will take more effort to get out of this fix than it took get into the mess we are in.
EM
Obviously you have done your homework, so you are safe from the scourge of excess flavor.
Especially appreciate your protecting those less intelligent or less educated than you.
Tough medicine infringing on their rights, but you know better than they do.
After all, it is for their own good.
Glad that society has people like you, educated and tough enough to make us do the right thing.
“. . . so you are safe from the scourge of excess flavor.”
Well played.
Arguments for paternalism always come down to this: Individuals are too feeble and stupid to guide their own lives. (They’re like sixth-graders.) Their will is weak and they cannot reason properly. Therefore, they need to be controlled by “enlightened,” all-powerful bureaucrats — Higher Authorities with mystical powers. Submit to your Masters, for only they can know what’s good for you and what’s bad for you.
Welcome to Plato’s world.
I reserve my right to consume salt, grease and starch.
Additionally, in the bad old days, double-bubble Happy Hours were lotsa fun.🍸
Surely they have trans fat free “junk” food in the UK.
I reserve my right to consume salt, grease and starch.
In the bad old days, double-bubble Happy Hours were lotsa fun. R.I.P. 🍸
Surely they have trans fat free “junk” food across the pond.
(Ooops! Posted twice.)
Its interesting that the govt believes they have the capability to address something like this.
Don’t know about Britain, but here in the US we are where we are because of Government experts creation of the food pyramid. So that screw up is supposed to make me believe there solution is workable? Govt should get out of the way, we’ll figure this out.
JFK initiated the idea of mandatory Physical Education classes in Public Schools, the 4 generation of our society has been led by the Govern
ment implementation of programs to get us skinny. But we are almost there…right?
Only govt is capable of losing money on selling Pot. California has 20% of their projected legal Pot sales, because the govt can’t organize a two car parade, or selling something the functionally illiterate get rich doing, on the black market.
With all the concerns about the erosion of free speech rights in other countries – which I share – let’s note that I have been labeled “The Man Behind the Ban on Cigarette Commercials” because, back in the 1960’s and 1970’s, I first forced our nation’s radio and TV stations to make hundreds of millions of dollars worth of broadcast time free of charge for antismoking messages.
Today this would be called forced or coerced speech.
See, e.g., Banzhaf v. F.C.C., 405 F.2d 1082 (DC Cir. 1968).
The result was a dramatic drop in smoking; something even the earlier Surgeon General’s report was unable to achieve. This one legal action reportedly saved millions of lives and hundreds of billions of taxpayer dollars.
This led to the ban on cigarette commercials which I was able to successfully defend against attacks founded on the First Amendment.
See, e.g., Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (3-judge, DC 1971), aff’d 405 U.S. 1000 (1972).
I have also been called “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” and “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” for my role in cigarette litigation.
These law suits, in additional to costing cigarette makers about a quarter of a TRILLION dollars, forced them to discontinue advertising on billboards, and to stop using cartoon characters; both of which have a special appeal to children.
This despite the fact that using highly-effective billboard advertising, and the use of cartoon characters to appeal to young children now that they can’t be reached through TV commercials, also involves restrictions of free speech.
As a result of this, we have managed to slash cigarette smoking, saving many millions of lives.
We’ve also helped to save hundreds of billions of dollars in unnecessary medical care costs; most of which would otherwise have to be paid by the great majority of Americans who are nonsmokers in the form of higher taxes (for expenses under Medicare, Medicaid, Obamacare, veterans’ and Indian benefits, etc.), and grossly inflated medical insurance premiums,
Turning to obesity, I recently explained, in UK Bans Obesity-Causing Junk Food Ads, Like Other Countries *** US Could Save Hundreds of Billions With Similar Moves:
“In addition to being a major factor in the number of COVID-19 deaths,, one study has reported that in the U.S. the ‘total cost of chronic diseases due to obesity and overweight was $1.72 trillion – equivalent to 9.3% of the U.S. gross domestic product [GDP],’ although other estimates are somewhat less but still very high.”
“Also, most of this huge and unnecessary expense caused by obesity is paid by people who are not obese, in the form of higher taxes for unnecessary medical expenses under Medicare, Medicaid, Obamacare, Veterans and Indian benefits, and other welfare programs, and in grossly inflated health insurance premiums.”
L.P. Banzhaf:
“With all the concerns about the erosion of free speech rights in other countries – which I share – let’s note that I have been labeled “The Man Behind the Ban on Cigarette Commercials” because, back in the 1960’s and 1970’s, I first forced our nation’s radio and TV stations to make hundreds of millions of dollars worth of broadcast time free of charge for antismoking messages.”
Today this would be called forced or coerced speech.
See, e.g., Banzhaf v. F.C.C., 405 F.2d 1082 (DC Cir. 1968).
***************************
Hey Prof, I vote we ban long-winded law professors with arms sore from back patting. That would save countless liters of hot air and prevent the medical costs for arm and shoulder surgeries along with untold benefits to the backs of thousands! Law students around the nation would break the chains of their boredom and life would be all sweetness and light. Viva la’ busybody who knows better! ;D
LPB
Go after swimming pools, they are deadly.
And BBQ grills, and cars, and steak knives.
Wow, imagine the lives and money that could be saved if we made you king.
Obviously you haven’t convinced me, but you are looking like a paragon of smug virtue.
“And BBQ grills, and cars, and steak knives.”
Don’t forget buttered popcorn, salted nuts, ice cream, and (gasp) chocolate. Can’t ride a bike without wearing a moon suit, or operate a power saw without 10 permits from OSHA, or go for a walk alone on a deserted beach without wearing 10, Fauci-approved masks.
Somebody needs to protect us from our “protectors.”
“We’ve also helped to” force our wishes on adults, while buying new yachts.
There. Fixed it for you.
Law professor, an awareness of the harm done by cigarette smoke was a praiseworthy objective. Please tell us when you are going to began your crusade against the carcinogens in Marijuana smoke. I understand. Taking on today’s youth would make taking on the cigarette companies look like a walk in the park. Great courage is often to much to ask for.
LawProf John Banzhaf,
“This one legal action reportedly saved millions of lives and hundreds of billions of taxpayer dollars.”
I won’t challenge the number of lives saved or deal with the politics, but I will challenge the number of taxpayer dollars saved. Sometimes we misread what we accomplished.
There are two points of the known high cost that everyone has, birth and death. In between, of course, are other costs. Many of them are attached to the dying process.
The smoker, at least when I last looked, somewhat between now and the activity you described, did not cost the taxpayer more money. In fact, the smoker costs less. If anything, the smoker should have had a rebate on the taxes he paid for cigarettes. (Please take note, I am not a smoker and dislike cigarettes, so my discussion is solely based on facts and numbers.)
We die only once, and that can be an expensive event. Smokers die at a much earlier age. Their costs of death and disease may have different ratios than earlier years, but that is not the cost driver. The smoker’s early demise means that they have fewer years to spend Medicare and do not receive the same amount in social security. Those cost savings for the taxpayer, along with their cigarette taxes, mean that they saved substantial amounts of taxpayer funds by dying early instead of costing the taxpayer in the later years.
The cessation of smoking saves lives, but it doesn’t save the taxpayer money.
In any event, one can get the most bang out of life by not smoking, abstaining from drugs and maintaining alcohol limits.
The Leviathan cometh
Whig:
It’s always been here. At least since 1651.
In the name of liberty, Republican State legislatures will be revoking the laws prohibiting smoking indoors and the wearing of seatbelts.
Smoking effects others in the same common area. As a lawyer you should be able to recognize that.
jeffsilberman, what kind of a mind would make your stuff up? Speaking of smoking isn’t it strange that the kids on the left have no concern for the carcinogens in the smoke produced from the burning Marijuana.
“Out of Sight, Out of Mind”
They are out of their minds.
Great column.
The Bill of Rights is a great document and yet authoritarians of both sides are working tirelessly to limit it.
Just look at Biden’s recent speech where he claimed that the Second Amendment limited both the guns that we can have and the people who can have them.
An outright lie in support of infringement.
Every one of the other Rights has been infringed in the name of “reasonableness – by both sides.
We had a revolution against England. We won our war. We passed a constitution to protect our rights. Those astardBays came back in the war of 1812. Kill The Redcoats!