Dec. 1, 2015 SIGN IN | REGISTER

Graff: First Amendment Doesn’t Apply to Junk Food Marketing to Kids

Every year food and soft drink marketers spend billions of dollars tempting children with junk, fueling an obesity crisis that’s already reached epidemic proportions.

Why aren’t policymakers stepping in to help protect our kids? In part because food and media companies are successfully using the First Amendment as a shield.

But new research paves the way for government to take action to protect children from junk food marketing, building a strong case to establish that much of this advertising falls outside the scope of First Amendment protection.

The controversy over whether government has the right to regulate food marketing to kids came to a head last summer, after a group of federal agencies proposed a set of voluntary recommendations suggesting how food companies could market to kids more responsibly. Food, entertainment and advertising lobbyists launched a massive campaign to derail the recommendations, arguing that the First Amendment protects industry from any government action involving food marketing to children.

A coalition of legal scholars stepped in to point out that because companies would be free to ignore the recommendations, no one’s First Amendment rights were at stake. Still, industry has succeeded in stalling, if not quashing, the proposed guidelines.

For the first 200 years of our country’s history, the First Amendment had nothing to do with advertising. It wasn’t until about 35 years ago that the Supreme Court expanded the concept of free speech to apply to advertising, recognizing that the unimpeded flow of commercial information is important for our market economy.

But the court made it clear that false and “inherently misleading” advertising does not qualify for First Amendment protection. In two research articles published this month, I joined with leading scientists on this issue to line the evidence up against the law.

A substantial body of research on children’s cognitive development shows that any advertising targeted at children under 12 is by definition inherently misleading. In an article released Feb. 8 in “Health Affairs,” I joined colleagues to look at the three levels of understanding it takes to comprehend advertising: distinguishing advertising from other media content; recognizing the selling intent of advertising messages and recognizing that the selling intent leads to inherent bias in advertising.  Children generally don’t master all three levels of understanding until they’re 11 or 12 years old because, even if they can identify an ad and its selling intent, they don’t have the critical thinking capacity to grasp the embellishment in marketing messages.

There is no plausible way to advertise to a young child without being misleading. So the government should be able to set limits on all advertising directed primarily at children under 12 — or, if it chooses, to restrict a subcategory (such as junk food advertising) that is particularly harmful to children — without violating the First Amendment. 

Food marketing to adolescents raises similar concerns. For an article in this month’s issue of the “American Journal of Public Health,” my co-author and I show how food marketers exploit many of the vulnerabilities inherent in adolescence. Marketers now frequently disguise promotions as video games and other entertainment; track young people online and through cell phones; follow conversations on Facebook and Twitter; and collect personal data to tempt youth with junk food promotions.

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