Kids, Food Ads, and The First Amendment

I know this is a health blog and not a law blog, but there's certainly plenty of overlap. The Supreme Court's upcoming consideration of the Affordable Care Act springs to mind, for starters. Now, we have public health and the law intersecting over food marketing and children.

Since 2006 when the Institute of Medicine (IOM) filed its landmark report Food Marketing to Children and Youth, health advocates have been agitating to alter the mediascape of advertising children are immersed in every day. Food companies spend more than $1.6 billion [PDF] each year marketing food and beverages to children and teens.

The IOM concluded that food marketing efforts aimed at children were "out of balance with healthful diets and contribute to an environment that puts their health at risk." Additionally, the authors wrote, "television advertising influences children to prefer and request high-calorie and low-nutrient foods and beverages."

To public health advocates, limiting advertising to children seemed like a good idea. But food companies have long countered that their ads are protected by the First Amendment.

Americans clearly hold a certain degree of reverence for the First Amendment. But free speech is not an unlimited right. And just as Oliver Wendell Holmes said the First Amendment does not protect anyone from "falsely shouting fire in a theater," two recent analyses say the First Amendment doesn't necessarily give food marketers the unregulated right to advertise to children either.

Samantha Graff co-authored both those analyses, one for the American Journal of Public Health and one for Health Affairs. Graff is the director of legal research at Oakland's Public Health Law and Policy. "My goal in these two articles was to clarify that it is not the First Amendment here that is a major impediment to government action to improve the food marketing environment for children."

I don't want to get too much into the weeds of Constitutional case law. I'll leave that to Graff and her co-authors. But in short they argue the Supreme Court has determined that if the government can demonstrate "the advertising at issue is 'inherently likely to deceive' or has produced a 'record indicate[ing] that a particular form or method of advertising has in fact been deceptive,' it may prohibit the advertising."

So, at first blush, you might be thinking, "doesn't ALL advertising try to deceive us?"

But remember, we're talking about children here. Jennifer Harris, of Yale's Rudd Center for Food Policy and Obesity co-authored the analysis for the American Journal of Public Health. She says that while children can tell the difference between a TV program and an advertisement by the time they're three or four years old, they don't understand that the ads are trying to sell them something. That recognition doesn't happen until about age six or seven.

But it's one thing to understand someone is trying to sell you something and another to be mature enough to stand up to it. "In order to counteract the influence of the ad," Harris said in an interview, "you have to consciously counter-argue what the ad is trying to tell you. 'Oh, that's a bad product, my mom doesn't want me to eat that, so I'm not going to pay attention to that.' Even when you teach them media literacy, they don't do that." These more sophisticated thought processes don't develop until about age 11 or 12.

"Thus, the entire category of advertising to children younger than age 12 may be considered inherently misleading," the writers argue in the Health Affairs analysis, "and therefore unprotected by the First Amendment." In addition, Graff told me, "Our goal is to clarify for advocates and policy makers that the First Amendment should not be an impediment to carefully tailored restriction on advertising to children and youth."

The writers cite a study where even those children who participated in a media literacy training "exhibited greater preferences" for the foods they saw in advertisements they had just learned about in the course.

Elaine Kolish is Director of the Children's Food and Beverage Advertising Initiative, a program within the Better Business Bureau. She also worked for 25 years at the Federal Trade Commission and developed an expertise in advertising. She says the First Amendment does apply to food advertising to kids. "If their argument were true," she said in an interview, "it would mean that any advertising to kids, for a bicycle, for a video game, a ball, a movie, where do you draw the line? You can argue harm from any of those things."

She also pointed to the efforts of the Advertising Initiative she heads, an industry self-regulating program. She says that changes under the program have been "meaningful and dramatic." Some large candy companies have said they will stop advertising their products to kids under 12 completely, she said, as one example.

Like last week's sugar debate, this debate will be going on for awhile.