The federal Interagency Working Group (IWG) – representing the Federal Trade Commission (FTC), the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA) and the US Department of Agriculture (USDA) – was charged by Congress to develop principles to guide industry in limiting junk food advertising to children, and also contribute to a healthy diet. The IWG proposals were released in April – but they proved controversial within the food industry, and some critics have suggested that if they were to become law, they would constitute a restriction of free speech, as protected under the First Amendment.
However the law professors, as part of the group Public Health Law & Policy, said that if finalized, the proposals would not compel any company to follow them and would simply suggest how companies could improve the nutrition of the foods they marketed to children.
In a letter sent to FTC chairman Jon Leibowitz, agriculture secretary Tom Vilsack, CDC director Thomas Frieden and FDA commissioner Margaret Hamburg on Tuesday, the group said: “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.”
If implemented, the voluntary standards, which are available here, would be based on two general principles: Firstly, that foods and beverages marketed to children should make a “meaningful contribution to a healthful diet” and contain either fruit, vegetable, whole grain, fat-free or low-fat milk products, fish, extra-lean meat or poultry, eggs, nuts and seeds, or beans. And secondly, they should minimize content of nutrients that could negatively affect health or weight.
The Working Group proposed that all food products in categories most heavily marketed directly to children aged 2-17 should meet these principles by 2016, and that sodium guidelines should be revised in 2021.
Public Health Law & Policy called the principles “a constitutionally permissible set of government recommendations”, which “pose no threat to any rights guaranteed by the First Amendment”.
Apart from the issue of commercial free speech, the food industry has objected to the proposals on other grounds, including by questioning their scientific basis and arguing that current self-regulation is effective in limiting advertising to children.