Government Can Regulate Food Advertising to Children Because Cognitive Research Shows that it is Inherently Misleading

The childhood obesity crisis has prompted repeated calls for government action to curb the marketing of unhealthy food to children.

Food and entertainment industry groups have asserted that the First Amendment prohibits such regulation. However, case law establishes that the First Amendment does not protect "inherently misleading," commercial speech. Cognitive research indicates that young children cannot effectively recognize the persuasive intent of advertising or apply the critical evaluation required to comprehend commercial messages.

Given this combination—that government can prohibit “inherently misleading” advertising and that children cannot adequately understand commercial messages—advertising to children younger than age 12 should be considered beyond the scope of constitutional protection.