September 28 2011
It's A Regulation, Stupid...
A coalition of 36 (methinks somewhat naïve) lawyers have defended the Obama Administration's Interagency Working Group (IWG) on Food Marketed to Children which seeks to "guide the [food] industry in determining which foods would be appropriate and desirable to market to children..."
In a letter to the heads of the four agencies (USDA, FDA, CDC, FTC) that make up the IWG, the coalition of lawyers defended the working group against charges that the recommendations are a violation of the first amendment. The letter states:
Simply put, voluntary principles that food and beverage businesses are free to ignore do not "abridg[e] the freedom of speech." The draft nutrition principles pose no threat to any rights guaranteed by the First Amendment.
The Free Speech Clause applies only to government mandates restricting or compelling private speech. The draft nutrition principles, which are designed "to guide industry self-regulatory efforts," do not restrain or compel anyone's speech. They are not, in fact, government regulation at all. Instead, they are the speech of the government itself.
They're right about one thing. Their defense is certainly "simply put." If only everything in Washington were that simple.
No doubt, these professors felt the need to react to some of the other high-profile concerns voiced on the subject of the constitutionality of limiting industry speech. Author Bruce Fein noted in a piece on the Huffington Post:
As we have learned through experience, voluntary guidelines promulgated by government regulators are indistinguishable from government mandates that should be constrained by the United States Constitution. The regulatory weapons that may be employed covertly as retaliation against the recalcitrant make industry compliance with guidelines no more voluntary than yielding a wallet to a highwayman.
Martin Redish, Professor of Law and Public Policy at Northwestern University School of Law expressed similar concerns in a White Paper released earlier this year:
The proposed regulations designed to suppress certain advertising for so-called low nutrition foods-particularly when applied to ready-to-eat-cereals, which give rise to none of the dangers sought to be avoided-unambiguously violate all of these constitutional directives; the proposed regulations therefore violate the First Amendment right of free expression, without doubt or question. The First Amendment protection of commercial speech clearly dictates that government must pursue options for dealing the problem of childhood obesity that do not trample on rights guaranteed by the Constitution in a futile effort to find a seductive quick fix or an extremely complex problem.
That the regulations are labeled voluntary in no way camouflages their inherently coercive nature. The force of powerful governmental agencies stands behind them, fortified by the explicit threat of mandatory regulations should voluntary compliance measures prove unsuccessful. Government may not achieve through indirection what is not constitutionally authorized to impose directly.
Fein and Redish seem to understand how Washington works. A regulatory agency "suggests" something and says it's totally voluntary, but everyone knows what the message is: comply or else! (I like to say it with a German accent for added drama)
But this nuance seems lost on the 36 authors of this support letter.
Personally, I would love to live with these lawyers in their world (along with the Easter Bunny and the Tooth Fairy). But in the real world -- filled with business busting regulators -- "helpful hints" are best kept to Heloise's much loved household advice column.