The First Amendment and Restricting Food Marketing to Children AcademyHealth Washington DC, June 2008 Jennifer L. Pomeranz, JD, MPH Director of Legal Initiatives

Overview l First Amendment’s Protection of Commercial Speech l Compelled Speech l Government Speech l Regulation of Industry Conduct l Regulation of Consumer Conduct

The First Amendment Protects Commercial Speech “expression related solely to the economic interests of the speaker and its audience” “the proposal of a commercial transaction”

Lorillard Tobacco case  Applied the Central Hudson test for restrictions on commercial speech  Struck down advertising ban 1,000 ft from school or playground  Struck down 5 ft height restriction  Upheld requirement that tobacco products be accessible only to sales staff to prevent minors’ access

The First Amendment Restricting Speech is Difficult Compelling Speech is Preferred

Compelling Commercial Speech l Nutrition Facts Panel l Menu Labeling l Warning Labels or Messages l Product Placement Disclosures l Quick Reference Nutrition Panels

HIGH IN SUGAR HIGH IN SUGAR Excess Sugar in the Diet has been Linked to an Increased Risk for Obesity

This is product placement

Traffic Light System (U.K.)

Government Speech “speech and other expression [used] to advocate and defend its own policies" General taxes or targeted assessments can be used for government speech “whether or not the reasonable viewer would identify the speech as the government's.”

CDC, USDA, NCI

USDA

Regulate Industry Conduct l Zoning l Regulate product location in stores l Ingredient bans or caps l Tax manufacturers to encourage reformulation l Set Daily Value figures for added sugar

Regulate Consumer Conduct l Age requirements to purchase items l Per-capita limits on purchases l Taxing products to discourage consumption l Ban the sale of products in government places like schools, hospitals, military

Real Change Requires Real Change

Thank You