Kevin Outterson has a great post today on how industries that market junk food to kids are opposing the US federal government's draft guidance on a voluntary program restricting the advertising of unhealthy foods to children. If you are concerned about childhood obesity, read it. My title is from his description of the industry's strategy in this fight:
But lobbyists also play long ball, games that last years, even decades. Like a cricket match in hell.
For more than a decade, the Washington Legal Foundation has filed legal cases and briefs advancing the “commercial speech” theory of the First Amendment, an idea that was unanimously rejected by the Supreme Court in 1942. But today, commercial speech is a profound de-regulatory tool, striking down regulation of tobacco ads, pharmaceutical data mining, liquor stores, and other products. Millions of dollars, invested strategically over many years, is now bearing fruit as judges use “commercial speech” to strike down public health rules.
And now they come for childhood obesity.
So I was curious, and took a quick look at two legal briefs written by well-known law professors, arguing the case for the junk food manufacturers, or the "Sensible Food Coalition," as they style themselves. Several arguments caught my eye.
First, they have a reasonable argument, that there should be no regulation unless there is good evidence that advertising unhealthy food to children contributes to childhood obesity. The authors, however, seem to think that there is conclusive evidence that advertising does not have such an effect. I'm skeptical, and hope to look at the data they cite soon.
What was most striking to me, however, was the preposterously strident civil libertarian tone of these arguments. Federal guidelines on marketing junk food to children are, apparently, the top of a slippery slope to "manipulating citizen behavior through the selective suppression of speech advocating lawful action." Each notes the obvious counter example, which is that the pornography industry is not allowed to market its products to children. I had always thought that such limits on pornographers were a good thing, but Professors Redish and Sullivan offer no reason I can find why we shouldn't similarly free the pornographers from the oppression of tyranny.