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Restricting Unhealthful Food Advertising to Children and the First Amendment

Preventing Chronic Disease
Centers for Disease Control and Prevention
Publication Date
  • Letter
  • Communication
  • Political Science


Preventing Chronic Disease LETTER Restricting Unhealthful Food Advertising to Children and the First Amendment Suggested citation for this article: Rossen LM. Restricting unhealthful food advertising to children and the First Amendment [letter]. Prev Chronic Dis 2012;9:110269. DOI: . To the Editor: In their recent article, Harris and Graff describe ways that local governments can restrict the marketing of unhealthful food to children, including limiting store displays and banning commercial billboards (1). The authors state that “to avoid potential First Amendment violations, the [policies] should apply to all signs no matter the message and should be based on non–speech-related considerations such as minimizing visual clutter” or “traffic safety or esthetics” (1). However, instead of veiling the true intent of such restrictions with stated rationales of minimizing clutter and preserving esthetics, local governments could make the argument that these policies are a legitimate exercise of their police power and would pass the Central Hudson test (2). The Supreme Court has repeatedly ruled that to be protected under the First Amendment, commercial speech must not be misleading; this is the first stipulation of the Central Hudson test, which is typically applied to decide commercial speech cases (2,3). The advertising of unhealthful food to children is inherently misleading because children are unable to distinguish between purely informational and commercial or persuasive speech (4). The second stipulation of the Central Hudson test is that a substantial government interest must be served by restricting commercial speech (2). The state’s interest in protecting the public’s health (ie, police powers) surely provides a stronger rationale for restricting advertising to children than minimizing store window clutter or preserving esthetics. State and local governments have a substantial interest in, and rationale for, int

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