People who dislike, on principle, the idea of government intervention in any aspect of life tend to find themselves on the same side as giant multinational corporations. Coca-Cola, Nestle, Mondelez International et al vigorously reject governmental oversight, and are experts in the art of creating the illusion of bounteous choice, while at the same time cramming their agenda down the public’s throat.
They decide what is in the food, how much of it to make available, and how much it will cost. They choose to tell us about their products in ways that insult our intelligence and challenge the limits of credulity. Then, at other stages of the marketplace process, they become part of the ubiquitous obesity problem with shady moves — like using various kinds of influence to block legislation. Sometimes they pay for studies that produce their desired results.
About five years ago, manufacturers spurned advice about what to put in their products and gasped in collective horror at the suggestion that maybe there should be restrictions on what they told the public about the products. Dueling constitutional law scholars squared off, either paid for by the industry or speaking up voluntarily for the side that wanted to see some limits.
The Central Hudson test, which determines whether words said by corporations and advertisers can actually quality for First Amendment protection, has been around since 1980. It asks four questions:
(1) whether the speech at issue concerns lawful activity and is not misleading;
(2) whether the asserted government interest is substantial; and, if so,
(3) whether the regulation directly advances the governmental interest asserted; and
(4) whether it is not more extensive than is necessary to serve that interest.
Childhood Obesity News has mentioned several talking points suggested by Mark Bittman’s opinion piece for The New York Times, “The Right to Sell Kids Junk.” He sought out Samantha Graff, one of the co-authors of a report published by Health Affairs and bearing the explicit title, “Government Can Regulate Food Advertising To Children Because Cognitive Research Shows That It Is Inherently Misleading.”
“When the court extended the First Amendment to commercial speech,” Graff told me, “it focused on how consumers benefit from unfettered access to information about products in the marketplace. But this notion has been twisted to advance the ‘rights’ of corporations to express their ‘viewpoints’ in the public debate — not only about their favored political candidates, but also about the wares they are hawking.”
Graff, along with Dale Kunkel and Seth E. Mermin, researched court decisions and scientific abstracts and concluded that all advertising directed toward kids under 12 meets the definition of “inherently misleading.” They predicted that many obstacles would stand in the way of eliminating these commercial messages. Some people feel that First Amendment rights are only for people, but since it has been decided that corporations are people, this argument might be moot.
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