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

Published online by Cambridge University Press:  01 January 2021

Jennifer L. Pomeranz
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Extract

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. A common retort to appeals for government regulation is that such advertising and marketing constitutes protected commercial speech under the First Amendment. This perception has allowed the industry to function largely unregulated since the Federal Trade Commission (FTC)'s foray into the topic, termed KidVid, was terminated by an act of Congress in 1981. The FTC has since focused on self-regulation as a potential solution to such concerns. However, this method of control has proven ineffective to protect children, and has led to growing recognition that federal regulation may be necessary.

Since KidVid, the evidence has only mounted that children are uniquely vulnerable to the effects of advertising. Over the same time period, the exposition of commercial speech jurisprudence has plateaued, as the Supreme Court has not decided a pure commercial speech case since 2002.

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Independent
Information
Journal of Law, Medicine & Ethics , Volume 38 , Issue 1 , Spring 2010 , pp. 98 - 116
Copyright
Copyright © American Society of Law, Medicine and Ethics 2010

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If we were to take the Supreme Court at its word and consider only speech proposing a commercial transaction to be commercial speech, see Cincinnati, 507 U.S. 410, 423 (1993), then I question whether such speech can meets the definition of commercial speech because there can be no expectation of a commercial transaction. Young children lack the financial and legal means to contract for most products. See Restatement of the Law, Second, Contracts, § 12 Capacity to Contract (1981) (An infant lacks the “legal capacity to incur contractual duties.”); Restatement of the Law, Second, Contracts, § 14 Infants (1981) (“Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday.”). Speech seeking to make profit and directed at children is often relating to the economic interest of the commercial actor and the child's guardian, who has the capacity to purchase the product. The child — the recipient and intended audience of the speech — is not on the purchasing side of the transaction. A child must rely on the parent to contractually purchase the product and therefore the recipient of the speech lacks an economic interest in the communication. See Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980). A commercial actor cannot have a reasonable expectation of a completed commercial transaction with the intended receiver of its speech about its products. However, the Court has increasingly accepted a variety of communication as commercial speech rather than strictly relying on its definition.Google Scholar
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But see, Florida Bar v. Went For It, 515 U.S. 618 (1995) (Upholding a 30 day commercial speech restriction to protect the personal privacy of accident victims and their families from intrusive letters by attorneys).Google Scholar
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