nutrition standards for children’s restaurant meals, in laws prohibiting children from buying highly caffeinated energy drinks, or in a portion-size restriction on sugar-sweetened beverages.

Public Health Messages

Finally, at the same time that corporate speakers have been securing the First Amendment right to amplify their messages, they have been working to stifle government messages regarding public health. Graff described three cases in which the affected industries painted simple informational messages coming from the government as coercive violations of corporate free speech rights: the first involved draft recommendations on food marketed to children from a federal Interagency Working Group on Food Marketed to Children, the second pertained to the FDA’s graphic tobacco warnings depicting the hazards of smoking, and the third was in regard to a local law requiring that campaign flyers disclose major funding from out-of-city contributors.

Graff posed the question of what is to keep the government’s messages from being drowned out. She noted that there is growing momentum in the public health field to pursue taxes on sugar-sweetened beverages, with revenues earmarked in part for countermarketing campaigns. These revenues will not match industry marketing budgets, but strategic, hard-hitting countermarketing campaigns can be extremely effective, Graff said. Government agencies also can use their enforcement powers to shine a light on dubious food marketing practices. Often even the prospect of an investigation will inspire reform.

Finally, government can lead by example. The First Amendment leaves policy makers leeway to determine what types of promotional activities are allowed on government property—if not through their regulatory power then through their procurement power. By setting nutrition and marketing standards for products served or sold in places such as schools, parks, and hospitals, the government can carve out safe spaces for children to experience what a healthy environment looks and feels like.

Achieving a Healthy Balance

In conclusion, Graff noted that the current legal and political climates pose formidable challenges for government efforts to address the pervasive marketing of obesogenic foods and beverages to youth. Nonetheless, she suggested, the U.S. constitutional system is designed to balance competing interests and adapt to new technological developments, scientific discoveries, and social norms.

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