Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate

Abstract

In response to the obesity epidemic, much discussion in the public health and child advocacy communities has centered on restricting food and beverage marketing practices directed at children. This paper provides a brief overview of the science on the influence of marketing over children, and a background of relevant FTC action and the commercial speech doctrine. The paper examines First Amendment jurisprudence, which holds that deceptive and misleading speech about commercial products is not protected by the First Amendment. It explores the theory that because young children do not and cannot comprehend that they are being advertised to, this form of communication is inherently conducive to deception and coercion. The specific marketing techniques employed by the food and beverage industry to advertise to children further demonstrate that this form of communication should not be considered protected by the First Amendment. FTC rulemaking in this area would thus be consistent with the First Amendment’s lack of protection for such speech. Although the argument may apply to marketing for all products, this paper relies on the science relevant to children and food marketing so the current analysis is limited to the FTC’s authority to restrict food marketing directed at youth.

Keywords: First Amendment, public health law and policy, food marketing, Federal Trade Commission