Marketing

‘Voluntary’ Food Marketing Regs Don’t Curb Speech: Law Profs to Feds

9/12/2011 12:01 AM Eastern

Washington — A host of academics have called on
the Federal Trade Commission, the U.S. Food & Drug
Administration and other top government agencies not
to back away from proposed
food-marketing
guidelines that have
been heavily criticized
by food marketers and
the media companies
that rely on their advertising
dollars.

Food marketing is
in the government’s
sights due to the childhood
obesity epidemic
that prompted first
lady Michelle Obama
to adopt improving
kids’ health through
exercise and better diets as her principal cause.

In an “open letter” signed by three dozen law professors
from some big-name schools — including Harvard
University, Yale University and Georgetown University
— the professors argue that because the guidelines, produced
by an interagency
working group (IWG)
on food marketing to
kids, are voluntary, they
do not, “in their current
form” violate the First
Amendment.

“The IWG is not requiring
loyalty oaths,
threatening criminal
prosecution, or confiscating
real estate,” the
pro-guidelines lawyers
said. “It is not establishing
or invoking a legal
regime. It is simply following
a congressional mandate to issue a report with
recommendations based on the agencies’ expert analysis
of the relevant facts.”

Agencies sought comment on whether mandating the
guidelines would cause First Amendment problems.

There was a loud chorus of “yes” from advertisers and
media companies.

The National Cable & Telecommunications Association
cautioned that “[i]f adopted as ‘voluntary’ guidelines, the
myriad ways in which advertisers might feel pressured or
coerced by the government to comply would, for the same
reasons, make even such voluntary guidelines highly
likely to run afoul of the First Amendment.”

The National Association of Broadcasters similarly
backed the goals but said the guidelines were are the
wrong way to go about it.

A copy of the letter was also sent to the White House
asking the administration not to back off support in the
face of lobbying by industry.

October
November