Tuesday, September 6, 2011

Does Obama Administration Proposal For Marketing Foods To Kids Violate the First Amendment?

Coalition of lawyers says no; White House declines to comment on letter sent to Administration...
A coalition of 36 lawyers is defending the Obama Administration's proposed preliminary voluntary principles for limiting the kinds of food products that can be advertised to children. Issued in April by the Federal Trade Commission's Interagency Working Group on Food Marketed to Children, the proposal supports the massive government effort to combat childhood obesity that's coordinated by First Lady Obama's Let's Move! campaign. The principles do not violate the First Amendment right to free speech, the legal eagles said today in an open letter sent to the top Administration officials at FDA, CDC, USDA, and FTC, as well as relevant parties at the White House, including Senior Policy Advisor for Healthy Food Initiatives Sam Kass and newly minted Let's Move! Executive Director Dr. Judith Palfrey.

The proposal has not yet been adopted in final form. Some of the lawyers who signed the letter are the top US experts in First Amendment law, according to Jeffrey Chester of Washington, DC's Center for Digital Democracy, a spokesman for the group.* The lawyers contend that because all food and beverage companies are entirely free to ignore the proposed federal guidelines, the draft principles “do not restrain or compel anyone’s speech."

"They are not, in fact, government regulations at all," the lawyers noted, and likened them to other voluntary federal guidelines, such as USDA’s MyPlate dietary recommendations.

The letter is scholarly pushback against the efforts of the Sensible Food Policy Coalition, a food/media corporate front group created in July to launch an aggressive attack against the FTC proposal. As reported here, the coalition includes PepsiCo, Viacom, Kellogg's, General Mills, Time Warner, with powerful lobbying group the Grocery Manufacturers Association on board as an "honorary member." They've hired Anita Dunn, who served in 2009 as President Obama's White House Communications Director, to create a multi-pronged PR campaign.

Of counsel to the Coalition is attorney Jim Davidson, chair of the public policy group at Washington, DC's Polsinelli Shughart law firm, who told Obama Foodorama that the principles are "de facto legislation," and the group's goal is to have them "completely withdrawn." The group has posted a "White Paper" on its website, claiming the principles violate the First Amendment.

"Attorneys retained by industry have invoked a variety of First Amendment arguments, a tactic with the potential effect of diverting policymakers’ attention from the substance of the draft nutrition principles," the lawyers' letter notes. "Nothing in the cases cited by these commenters bears on the IWG principles. The doctrines of “informal censorship,” “unconstitutional conditions,” and “de facto coercion” are completely inapt."

"The food and ad lobby are using the First Amendment argument as a political weapon designed to undermine public health," Chester said. "Today's letter says that the food marketing lobby is on very shaky legal ground."

David Vladeck, director of the FTC’s Bureau of Consumer Protection, responded to some of the claims the food/ad industry is making in a July post on FTC's blog, calling many of these "myths."

"At the risk of being redundant, a report to Congress containing recommended nutrition principles can’t violate the Constitution," Vladeck wrote. "A report is not a law, a regulation, or an order, and it can’t be enforced. While we hope companies voluntarily choose to adopt the principles (when finalized), there’s no legal consequence if they don’t. So there’s no effect on their free speech rights."

Meantime, in mid-July, food industry giants proposed their own set of standards for marketing foods to children. These were laxer than those proposed by the Obama Administration, of course.

Lawmakers have joined the fray...
Members of the GOP over the summer spoke out against the FTC proposal, using the arguments created by the Sustainable Food Policy Coalition. Its opening salvo was an "economic impact report" that claimed that if adopted, the guidelines will lead to a 20% reduction in advertising expenditures, which will cause a multi-billion dollar "ripple effect" through the commerce chain, translating to at least 74,000 lost jobs for Americans in 2011.

Rep. Peter Roskam (R-Illinois) is the most recent lawmaker to take this particular bait. On August 30th, he published an op-ed piece in the Chicago Sun-Times, blasting the Obama Administration for proposing "regulations" that are bad for business.

"Illinois-based food producer Sara Lee could soon face lower sales and higher costs and provide fewer jobs if the administration goes through with a particularly overreaching food regulation that would dramatically restrict their ability to advertise many food products — in the name of fighting childhood obesity," Roskam wrote, adding that Sara Lee would no longer be able to sell foods such as hot dogs at sporting events where children under age 18 are present.

Letter recipients...and no comment from the White House
The letter from the legal scholars was sent to FTC Chairman Jon Leibowitz; FDA Commissioner Dr. Margaret Hamburg; CDC Director Dr. Thomas Frieden; and Agriculture Secretary Tom Vilsack. According to Chester, in addition to Kass and Palfrey at the White House, two members of the Domestic Policy Council, Judith Moreno and Raquel S. Russell, were also sent the letter.

An East Wing spokesman declined to comment on whether the letter had been received.

The First Amendment experts included in the group that signed the letter are Tamara Piety, Vincent Blasi, Erwin Chemerinsky, Michael Dorf, Steven Heyman, Steven Shiffrin, David Strauss, and Mark Tushnet, according to Chester.

*The letter writing effort was organized by Public Health Law & Policy, an advocacy group in California.

*Obama O's cereal image created during Mr. Obama's 2008 election campaign

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