Anti-Obesity Activists “Grease” Skids for Unconstitutional, Unnecessary Food Advertising Restrictions

by on December 15, 2009 · 5 comments

At a public forum held today by the Federal Trade Commission on “Sizing Up Food Marketing and Childhood Obesity,” activists called on Congress to pass legislation that would heavily curtail food marketing to children, including:

  • Rep. Jim Moran’s (D-VA) “Healthy Kids Act” (H.R. 4053) would direct the FTC to conduct a rulemaking and decide what kinds of foods could be marketed to children, and FCC to ban or seriously restrict broad categories of food and beverage ads shown on children’s programming.
  • Sen. Tom Harkin (D-IA) wants to repeal limitations a heavily Democratic Congress imposed in the late 1970’s on the FTC’s unfairness rulemaking authority over children’s advertising after the agency ran amok.
  • Rep. Dennis Kucinich (D-OH) intends to introduce legislation to essentially tax so-called “fast food and junk food” marketed to children by eliminating the current tax deduction.

It’s easy to pick on advertising as the cause of all of society’s ills, but there’s no hard evidence that food advertising is to blame for childhood obesity or that restricting food ads on television or the Internet will solve the problem.  Howard Beales, now at George Washington University’s business school, wrote the definitive law review article on this topic back in 2004, when he was Director of the FTC’s Bureau of Competition: Advertising to Kids and the FTC: A Regulatory Retrospective that Advises the Present.  It is a true masterpiece.

Dan Jaffe of the Association of National Advertisers, brings his extraordinary expertise on this issue to bear in his comments (full comments in Word doc) to today’s workshop, which update and expand on the themes Howard discussed in his 2004 article. As Dan describes in rich detail, industry is already responding to demands by parents and other consumers with healthier foods and self-regulation.

So, rather than restricting the free speech of advertisers, and thus diluting First Amendment rights in general, the FTC should use its existing authority to punish truly unfair and deceptive claims.  Governments and schools should focus on educating kids and parents about eating healthier and exercising more.

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