Last month, I wrote about the new guidelines issued by the Interagency Working Group (IWG) on Food Marketed to Children.  The guidelines basically say that food manufacturers can only advertise food that meets the government’s nutritional guidelines.

Goodbye Tony the Tiger and Count Chocula!

In an article for the Huffington Post, author Bruce Fein examines the IWG’s “recommendations” and has some significant concerns.  He addresses the government’s general distrust of parents to make good food decisions, saying:

In substance, the IWG has delivered an ultimatum to the food industry: either reformulate recipes to diminish sugar, sodium, and fats; or, cease ads or promotions on TV, radio, websites, in print, in movies, sponsorship of events, in-store marketing tools, etc. The goal is to manipulate the advertising marketplace in favor of more nutritionally healthy foods because of the government’s distrust of parents or children to make enlightened nutritional decisions.

And Fein also highlights how these new regulations will impact business:

These guidelines are as much constitutional folly as they are economically ill-advised. It is estimated that these mandatory-voluntary guidelines would plunge related advertising expenditures by 20% and slash over 75,000 jobs — leaving a $30 billion crater in our nation’s already sagging economy.

But it isn’t just job losses that bother Fein, he also examines the constitutional issues surrounding advertising bans:

The First Amendment prohibits the government from suppressing non-deceptive commercial speech from fear it will prove persuasive to the audience. The United States Supreme Court recently explained in Sorrell v. IMS Health Inc. (June 23, 2011): “The State may not burden the speech of others in order to tilt public debate in a preferred direction…[T]he fear that speech might persuade is no lawful basis for quieting it.”

In Bantam Books v. Sullivan (1963), the Supreme Court condemned informal censorship effectuated by veiled threats of adverse government action as prohibited by the First Amendment.

Martin Redish, Professor of Law and Public Policy at Northwestern university School of Law has similar concerns. In a White Paperreleased last month, Redish concludes:

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 suggests the federal government back off its threatening tone and move to promote more nutritional food choices by parents or youth through its own educational campaigns.