The U.S. food industry spends $1.6 billion each year marketing unhealthy, calorie-dense, nutrient-poor “junk food” and beverages to children and teens. Public health education and advertising budgets have a hard time competing with such massive marketing forces. Industry pledges to self-regulate have fallen short on improvements. Still, the federal government remains hesitant to intervene, citing advertising’s protection under the First Amendment.
These authors describe four premises of the “commercial speech doctrine” that contribute to courts not restricting advertising targeting youth.
- Product information—society has much to gain from the unrestricted flow of commercial information.
- Rational decision-making—consumers use advertising information to make well-informed decisions about purchases.
- Misleading commercial speech can be banned.
- Potentially misleading advertising does receive First Amendment protection.
They contend, however, that these assumptions do not reflect the reality of food advertising where companies market with emotional persuasiveness rather than with concrete information that facilitates rational decision-making. Young people, they say, are not able to resist the psychological techniques of junk food advertising, combined with the use of social media, appealing cartoon characters and celebrity tie-ins. Proper interpretation of the First Amendment should leave room to protect young people from such advertising.