Regulating “Junk Food” Marketing on Public School Property AcademyHealth 2008 June 10, 2008 Marice Ashe, JD, MPH Director, Public Health Law & Policy National Policy & Legal Analysis Network

Junk Food as Early Education

Junk Food in Schools

Advertising is Speech  Advertising is speech that is subject to First Amendment protections. It is considered: o Essential to free enterprise in a democracy o More important to some citizens than an urgent political debate  Protecting advertising from regulation promotes the free flow of information to consumers

School Regulation of Advertising Must “Make the Grade”  One of two First Amendment tests probably apply o Commercial speech test o Covered in previous presentation o Limited application in school setting o Forum test o Usually the correct test for a K-12 school setting

Three Kinds of Forums  Public forums: public property traditionally devoted to assembly and debate o e.g., plaza in front of city hall  Designated/limited public forums: public property designated for speech and potentially limited to debate on a specific range of subjects o e.g., school board meeting, municipal theater  Non-public forums: public property that is not opened to assembly or debate o e.g., military bases, post-offices and schools

Public Forums and Designated Forums  Restrictions on speech are subject to rigorous “strict scrutiny” test (or nearly) o Is the restriction for a compelling government interest? o Is the restriction narrowly tailored?  Bottom line: Speech must be allowed subject to “time, place and manner” restrictions o e.g., parades and demonstrations need permits, time limits at public meetings can be imposed

Non-public Forums  Commercial speech can be restricted  K-12 public schools are deemed to be non-public forums because o Children do not enjoy the same rights as adults to receive information o Schools have great leeway to control speech to further their “educational mission”

Non-public Forum Test  Two part test  Is the restriction o Reasonable? o Viewpoint neutral?

Reasonableness Test  A court will ask: o Is the policy wholly consistent with the school’s legitimate interest o i.e., educational mission, non-exploitation of students o in preserving the property o i.e., the school facilities and grounds o for its intended use? o i.e., education of children  Very forgiving standard of review

It Is Reasonable to Restrict...  All advertising on campus o Rationale: Schools are non-commercial spaces  All food and beverage advertising o Rationale: Avoid confusion with classroom nutrition education  All food and beverage advertising of products not allowed to be sold o Rationale: Ensure consistency with wellness policy  It may be unreasonable to restrict o Advertising for products that are allowed to be sold on campus o (Restricting speech only without restricting the conduct the speech is about is riskier)

Viewpoint Neutrality Test  A court will ask: o Does the restriction go to all speech by a third party on a particular subject? o i.e., speech that is both for and against a subject  e.g., all ads related to birth control (pro and con) disallowed in school newspaper o Planned Parenthood v. Clark County School District

It is Viewpoint Neutral to Restrict...  All advertising on campus o Neutral because it affects all advertisers  All food and beverage advertising o Neutral because it affects all food and beverage advertisers  All food and beverage advertising of products not allowed to be sold o Neutral because it affects all advertisers who want to promote or oppose certain foods or drinks

Legal Strategies to Regulate Junk Food Advertising  Negotiate specific terms in vending contracts that limit/prohibit advertising  Refuse to sign vending contracts that require or permit marketing  Adopt policies limiting/prohibiting use of school property for: All advertising All food/beverage advertising Advertising of foods/beverages that are not allowed to be sold on campus

Marice Ashe, JD, MPH Director Public Health Law & Policy 2201 Broadway, Suite 502 Oakland, CA (fax)