The food industry vs. nutrition standards: a First Amendment issue?

I just received a message from Samantha Graff, the director of legal research at Public Health Law & Policy, an advocacy group in Oakland, California.

This morning, she writes, 36 legal scholars—including several experts on the First Amendment—weighed in on the food industry’s fight against proposed nutrition standards for foods and beverages marketed directly to children.  This is the very issue I wrote about in yesterday’s San Francisco Chronicle column and have discussed in previous posts.

In a letter sent this morning to federal agencies, the legal scholars point out that because food and beverage companies are free to ignore the nutrition recommendations, the draft principles “do not restrain or compel anyone’s speech. They are not, in fact, government regulations at all.”

A key industry strategy has been to recruit lawyers to write white papers charging that the proposed nutrition standards violate First Amendment rights to free speech.

Recall that Congress asked the FTC to join with the FDA, CDC, and USDA to recommend standards for food products marketed to kids.  These agencies, collectively known as the Interagency Working Group on Food Marketed to Children (IWG), issued Preliminary Proposed Nutrition Principles to Guide Industry Self-Regulatory Efforts.   This report outlines proposed voluntary standards that have been open for public comment.

My initial reaction: the standards were much too generous.  But that’s not how the food industry sees them.  Food companies realized that the standards exclude large proportions of the junk foods they currently market to kids.

They created a new lobbying group, “Sensible Food Policy Coalition” (shades of George Orwell’s 1984).   This group is doing everything it can to block the proposed standards.   Its website links to white papers opposing the recommendations on First Amendment grounds.

David Vladeck, director of the FTC’s Bureau of Consumer Protection, responded to some of these claims in a recent blog post, in which he emphasizes the voluntary nature of the proposals.

I’ve said it before and repeat: I am not a legal scholar but intention seems to matter in legal decisions.  The intent of the First Amendment was to protect political and religious speech. I cannot believe that the intent of the First Amendment was to protect the right of food companies to market junk foods to kids.

Marketing to children is unethical.  It should be stopped.  And it’s the government’s responsibility to do it.