Television food marketing to children revisited: The federal trade commission has the constitutional and statutory authority to regulate

Journal of Law, Medicine and Ethics

Volumn 38, Issue 1, 2010, Pages 98-116

  Pomeranz, Jennifer L ^a  

^a YALE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ADVERTIZING; ARTICLE; CHILD; CHILD WELFARE; FOOD INDUSTRY; GOVERNMENT; GOVERNMENT REGULATION; HUMAN; JURISPRUDENCE; LEGAL ASPECT; OBESITY; PRESCHOOL CHILD; TELEVISION; UNITED STATES; VULNERABLE POPULATION;

ADVERTISING AS TOPIC; CHILD; CHILD WELFARE; CHILD, PRESCHOOL; FOOD INDUSTRY; GOVERNMENT REGULATION; HUMANS; OBESITY; SUPREME COURT DECISIONS; TELEVISION; UNITED STATES; UNITED STATES FEDERAL TRADE COMMISSION; VULNERABLE POPULATIONS;

EID: 77952827516     PISSN: 10731105     EISSN: 1748720X     Source Type: Journal    
DOI: 10.1111/j.1748-720X.2010.00470.x     Document Type: Article

References (238)

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5. For example, on September 23, 2008, Labor, Health and Human Services, Education, and Related Agencies Subcommittee (Chairman Harkin, D-Iowa) and Financial Services and General Government Subcommittee (Chairman, Durbin, D-Ill.) of Senate Appropriations Committee held a joint hearing called: MARKETING FOOD TO CHILDREN (10:30 a.m. Sept. 23, 192 Dirksen Bldg.)
6. 71 FR 10535 (March 31, 2006)
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18. See Harris et al., note 17
19. See IOM 2006, note 12, at 8
20. at 309
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23. Id., at 188-189
24. Id., at 190
25. Id., at 190
26. Id., at 191
27. Eisenberg D, McDowell J, Berestein L, Tsiantar D, Finan E. It's an Ad, Ad, Ad, Ad world: Time magazine. August 2002, http://www.time.com/time/magazine/article/0,9171,344045,00.html, last visited January 12, 2010); see also, Harris et al., note 25
28. The Grocer: Brandwatch Mintel Category Report: Soft Drinks: Carbonates. June 30, 2001, http://www.thegrocer.co.uk/articles.aspx?page=articles&ID=69075, Industry News, , last visited January 22, 2010) (discussing how the carbonates market is partially driven by the " under-15s" so companies need to " exploit pester power."
29. Do Smart Marketers to Children Target Kids or Their Parents?. Youth Markets Alert 1998, 10(no. 7):3. http://www.epmcom.com/article.php?article=a11545&user=39026, EPM Communications, Inc., discussing " targeting kids with the nag factor" ),, January 25, 2010
30. McNeal J U. Tapping the Three Kids' Markets: American Demographics. 1998, 37-41. discussing the " dollar value of the 'kidinfluence' market:" " About 90 percent of product requests made by children to a parent are by brand name." ); see also A. Sutherland and B. Thompson, (New York: McGraw-Hill, 2003
31. See Kunkel et al., note 24, at 20
32. Montgomery K C, Chester J. Interactive Food and Beverage Marketing: Targeting Adolescents in the Digital Age. Journal of Adolescent Health 2009, 45(no. 3 Supplement):S18-S29.
33. Federal Trade Commission Act of 1938, 15 U.S.C. 45(a)(1)
34. 15 U.S.C. 57a
35. 46 FR 48710, Children's Advertising, codified at 16 CFR 461 (October 2, 1981)
36. See IOM, note 12, at 5
37. See IOM, note 12
38. See 15 U.S.C. 45(n) (1994) (codifying the limited role for actions based on public policy
39. Calkins S. FTC Unfairness: An Essay. Wayne Law Review 2000, 46:1935-1991. See Westen, note 2; see also
40. See 15 U.S.C. 45(h)
41. See Harris et al., note 17
42. 71 FR 10535 (March 1, 2006) Request for Information and Comment: Food Industry Marketing Practices to Children and Adolescents, Background
43. 71 FR 10535 (March 1, 2006)
44. Public Law 109-108 (November 22, 2005) (appropriating funds for the Federal Trade Commission for FY 2006)
45. Senate Report No. 109-88 (2005
46. 71 FR 10535 (March 31, 2006)
47. http://www.ftc.gov/os/6b_orders/foodmktg6b/index.shtm, , Orders to File Special Report, FTC Matter No.: P064504,, last visited September 11, 2008
48. See FTC, note 20
49. Schwartz M, Vartanian L, Wharton C, Brownell K D. Examining the Nutritional Quality of Breakfast Cereals Marketed to Children. Journal of the American Dietetic Association 2008, 108(no. 4):702-705. S. Stender, J. Dyerberg, and A. Astrup, " Fast Food: Unfriendly and Unhealthy," 31, no. 6 (2007): 887-890; M. S. Malik, M. B. Schulze, and F. B. Hu, " Intake of Sugar-Sweetened Beverages and Weight Gain: A Systematic Review," 84, no. 2 (2006): 274-288; E. H. Spencer, E. Frank, and N. F. McIntosh, " Potential Effects of the Next 100 Billion Hamburgers Sold by McDonald's," 28, no. 4 (2005): 379-381; M. A. Pereia, A. I. Kartashov, C. B. Ebbeling, L. Van Horn, M. L. Slattery, D. R. Jacobs Jr., and D. S. Ludwig, " Fast-Food Habits, Weight Gain, and Insulin Resistance (the CARDIA study): 15-Year Prospective Analysis," 365, no. 9453 (2005): 36-42; S. A. Bowman, S. L. Gortmaker, C. B. Ebbeling, M. A. Pereira, and D. S. Ludwig, " Effects of Fast-Food Consumption on Energy Intake and Diet Quality among Children in a National Household Survey," 113, no. 1 (2004): 112-118
50. 39. http://www.rules.house.gov/111/LegText/omni/jes/divdjes_111_hromni2009_jes.pdf, See (Financial Services and General), at, , last visited January 11, 2010
51. See Government Appropriations Act 2009, supra note 54
52. 15 U.S.C §57a
53. 5 U.S.C. §553
54. Magnum-Moss Warranty-Federal Trade Comm. Improvement Act of 1975. Pub. L. 93-637, 88 Stat. 2183
55. See , 726 F.2d 993, 996 (4th Cir. 1983)
56. Rosch J T. Consumer Protection and the Debt Settlement Industry: A View from the Commission. April 2, 2009, 12-13. http://www.ftc.gov/speeches/09speech.shtm, Remarks by, before the 4th Annual Credit and Collection News Conference, Carlsbad, CA, at, and n. 34,, last visited January 11, 2010
57. 447 U.S. 557, 561 (1980)
58. 492 U.S. 469, 482 (1989) (emphasis in original); see also , 533 U.S. 405, 409 (" [C]ommercial speech, usually defined as speech that does no more than propose a commercial transaction, is protected by the First Amendment." ); see also, , 507 U.S. 410, 423 (1993) (The test " narrowly" looks at " the proposal of a commercial transaction as ' for identifying commercial speech.'" )
59. See , 492 U.S. 469, 482 (1989) (citing , 376 U.S. 254 (1964)) (Speech for profit is " fully protected speech ... uttered for a profit," such as a paid advertisement in a newspaper protesting a major political and public issue of the time, as opposed to a paid advertisement for candy
60. Ohralik v. Ohio State Bar Association. 1978, 436 U.S. 447, 456, internal citations omitted); see also, F. Schauer, " Symposium: Commercial Speech and the First Amendment: Commercial Speech and the Architecture of the First Amendment," 56 (1988): 1181-1203, at 1183; R. Post, " The Constitutional Status of Commercial Speech," 48 (2000): 1-57, at 20-21
61. United States v. Wenger. See also, 427 F.3d 840 (10th Cir. 2005) (finding Section 17(b) of the Securities Act of 1933 regulates commercial speech); , 605 F.2d 964 (7th Cir. 1979) (finding door-to-door salesmen solicitation to be commercial speech that the FTC has the power to regulate under the FTC Act). Both of these cases addressed commercial disclosure requirements to rectify deceptive speech. But see , 271 U.S. App. D.C. 110, 851 F.2d 365, 372 (DC App. Ct. 1988) (finding articles paid for by featured companies publicizing positive aspects of the company not commercial speech under the standard discussed in , 463 U.S. 60 (1983)). The DC Court of Appeals misapplied the law and incorrectly concluded that the speech was not commercial. The speech was clearly commercial speech, see , 427 F.3d 840 (10th Cir. 2005), and the commercial disclosure requirement should have been analyzed under , 471 U.S. 626 (1985)
62. 447 U.S. 557 (1980)
63. See , 533 U.S. 525, 554 (2001) (" Admittedly, several Members of the Court have expressed doubts about the analysis and whether it should apply in particular cases. See, e.g., , 119 S.Ct. 1923 [Thomas, J., concurring in judgment]; , 517 U.S. 484, 501, 510-514 [1996] [joint opinion of Stevens, Kennedy, and Ginsburg, JJ.]; , at 517 [Scalia, J., concurring in part and concurring in judgment]; , at 518, 116 S.Ct. 1495 [Thomas, J., concurring in part and concurring in judgment]"
64. 425 U.S. 748, 772 (1976)
65. 433 U.S. 350, 383 (1997)
66. 447 U.S. 557, 563 (1980)
67. See , 514 U.S. 476, 496 (1995) (Stevens J. concurring); , 44 F.3d 726, 732 (9th Cir. 1994) (focusing on commercial speech's " potential for deception in light of the lessons of experience and the nature of the target audience."
68. See Post, note 66
69. 507 U.S. 410, 432 (1993) (Blackmun J. concurring) (government regulation of misleading and deceptive speech " is consistent with this Court's emphasis on the First Amendment interests of the listener in the commercial speech context." )
70. 425 U.S. at 777-778 (1976) (Stewart J. concurring) (" the commercial advertiser generally knows the product or service he seeks to sell and is in a position to verify the accuracy of his factual representations before he disseminates them. The advertiser's access to the truth about his product and its price substantially eliminates any danger that government regulation of false or misleading price or product advertising will chill accurate and nondeceptive commercial expression. There is, therefore, little need to sanction 'some falsehood in order to protect speech that matters.'" )
71. Sullivan K M. Cheap Spirits, Cigarettes, and Free Speech: The Implications of 44 Liquormart. Supreme Court Review 1996, 123:156-161. (" [T]he consumer is not expected to have the competence or access to information needed to question the advertiser's claim, and the correction is not to be left to competitors and mere government counterspeech." )
72. http://www.fda.gov/oc/mous/domestic/225-71-8003.html, http://www.ftc.gov/bcp/bcpap.shtm, The Federal Trade Commission is responsible for regulating the truth or falsity of food advertising. See FTC Act of 1938, 15 U.S.C. §§5, 12, 13; Memorandum of understanding between the Federal Trade Commission and the Food and Drug Administration, 1971,, last visited January 2, 2009). The FTC monitors food marketing practices, responds to outside complaints and brings administrative lawsuits. See FTC Division of Advertising Practices,, last visited January 2, 2009). These are time consuming processes and procedures
73. See , 514 U.S. 476, 496 (1995) (Stevens J. concurring) (" [T]he consequences of false commercial speech can be particularly severe: Investors may lose their savings, and consumers may purchase products that are more dangerous than they believe or that do not work as advertised. Finally, because commercial speech often occurs in the place of sale, consumers may respond to the falsehood before there is time for more speech and considered reflection to minimize the risks of being misled. The evils of false commercial speech, which may have an immediate harmful impact on commercial transactions, together with the ability of purveyors of commercial speech to control falsehoods, explain why we tolerate more governmental regulation of this speech than of most other speech." ) (internal citation omitted
74. 455 U.S. 191, 203 (1982)
75. 447 U.S. 557, 563, , 440 U.S. 1, 13, 15-16
76. 455 U.S. 191, 206 (1982)
77. The evidence presented much actually support the government's position. See e.g., , 669 A.2d 13, 21 (Supreme Court Delaware 1995) (rejecting a three-year-old poll taken in Missouri but acknowledging that " it is well accepted that current surveys are persuasive when they canvas the geographic area in which the challenged use occurs, or a geographic area reasonably close to that site" )
78. 24 F.3d 754, 756 (5th 1994) (quoting , 496 U.S. 91, 106, 112 (1990); , 2004 U.S. Dist. LEXIS 25991 at *13, (E.D. La. December 22, 2004) (Commercial speech is " 'actually misleading' only where the record contains actual evidence of deception." ) (quoting , 24 F.3d at 756)
79. 455 U.S. 191, 203 (1982)
80. 496 U.S. 91, 101 (1990)
81. See , 496 U.S. 91, 108 (1990) (whether speech is inherently misleading is a question of law)
82. 455 U.S. 191, 203 (1982)
83. 24 F.3d 754, 756 (5th Cir. 1994) (citing , 496 U.S. 91, 110 S. Ct. 2281, 110 L. Ed. 2d 83 (1990) (internal citations omitted))
84. See e.g., , 174 F. Supp. 2d 1168, 1182 (D.Co. 2001)
85. 455 U.S. 191, 203 (1982)
86. See , 174 F.Supp.2d 1168, 1180 (D.Co. 2001) (quoting , 106 F.3d 929, 933 (10th Cir. 1997)
87. Even the Justices explanations can be confusing. In his concurrence in , Justice Marshall attempted to clarify inherently misleading speech doctrine: " The Court has also suggested that commercial speech that is devoid of intrinsic meaning may be inherently misleading, especially if such speech historically has been used to deceive the public." 496 U.S. 91, 112 (1990) Justice Marshall concurring (citing , 440 U.S. 1 (1979) and , at 202)). This reference to the " historically" deceptive nature leaves the inherently misleading doctrine and veers into actually misleading speech. If speech was historically likely to deceive, it could be considered misleading in practice, or actually misleading
88. 353 F.3d 1099, 1108 (9th Cir. 2004) (" board certified" ); , 24 F.3d 754, 758 (5th Cir. 1994) (" invoice" ); , 177 N.C. App. 89, 96 (Court Appeals NC 2006) (" published" )
89. was decided prior to but the Court has used it as a basis for its prong one analysis and it has applied its import in the context of the test. This may cause or at least add to some of the confusion in the inherently misleading doctrine
90. 440 U.S. 1, 4 (1979)
91. 440 U.S. 1, 12 (1979)
92. 455 U.S. 191, 203 (1982)
93. 353 F.3d 1099, 1107 (9th Cir. 2004); see also, , 208 F.3d 952, 955 (11th Cir. 2000)
94. 455 U.S. 191, 203 (1982)
95. C.f. , 284 F. 3d 1204, 1214 (11th Cir. 2002) (finding disclosure requirement for " potentially misleading" dentist's advertisement constitutional); , 2002 U.S. Dist. LEXIS 3195, *14 (E.D. La Feb. 22, 2002)
96. 455 U.S. 191, 203 (1982)
97. 496 U.S. 91, 111 (1990)
98. 208 F.3d 952, 956 (2002) (" A state cannot satisfy its burden to demonstrate that the harms it recites are real and that its restrictions will alleviate the identified harm by rote invocation of the words 'potentially misleading.'" )
99. 353 F.3d 1099, 1107 (9th Cir. 2004)
100. See Post, note 66 (" Such an approach would shift judicial attention away from the content of particular communications and instead direct judicial scrutiny to the structural preconditions of consumer rationality and independence." ). C.f. , 507 U.S. 410, 433 (1993) (Blackmun J. concurring) (the " listener ... has little interest in being coerced into a purchasing decision." ) (citing , 436 U.S. at 457.)
101. See IOM, note 12, at 309
102. See Kunkel et al., note 24, at 16
103. See , 447 U.S. 557, 561 (1980)
104. See Kunkel et al., note 24, at 16
105. See Kunkel et al., supra note 24 (" studies make clear that young children do not comprehend the intended meaning of the most widely used disclaimers." ); c.f., , 471 U.S. 626, 653 n.15 (1985) (upholding a disclosure requirement to explain the meaning of technical terms; finding it was reasonable to conclude that the omission created the potential for deception)
106. Campbell A. Restricting the Marketing of Junk Food to Children by Product Placement and Character Selling. Loyola of Los Angeles Law Review 2006, 39:447-506. See, 487
107. See Kunkel et al., note 24, at 6
108. See Harris et al., note 17
109. Schor J B, Ford M. From Tastes Great to Cool: Children's Food Marketing and the Rise of the Symbolic. Journal of Law, Medicine & Ethics 2007, 35(no. 1):10-21. at 16
110. Batada A, Seitz M D, Wootan M G, Story M. Nine Out of 10 Food Advertisements Shown During Saturday Morning Children's Television Programming Are for Foods High in Fat, Sodium, or Added Sugars, or Low in Nutrients. Journal of the American Dietetic Association 2008, 108(no. 4):673-678. See, " Emotional appeals, such as fun or being hip or cool were [found in 86% of] the Saturday morning food advertisements." )
111. Connor S M. Food-Related Advertising on Preschool Television: Building Brand Recognition in Young Viewers. Pediatrics 2006, 118(no. 4):1478-1485.
112. See Schor and Ford, note 116, at 15
113. 447 U.S. 557, 563 (1980) (" the First Amendment's concern for commercial speech is based on the information function of advertising" )
114. 440 U.S. 1, 12 (1979)
115. 496 U.S. 91, (1990) (Marshall, J. and Brennan, J., concurring) (A statement is inherently misleading when " the particular method by which the information is imparted to consumers is inherently conducive to deception and coercion." )
116. Brownell K D. Food Fight 2004, 106-107. See e.g., New York, McGraw-Hill, at, (tells the anecdotal story of a four-year-old seeing Betty Crocker's Disney Princess Fruit Snacks with Cinderella, Snow White, and the Little Mermaid on the box, saying, " I want that." The mother asks " What is it?" and the child responds, " I don't know." )
117. See IOM, note 12, at 9. (" Statistically, there is strong evidence that exposure to television advertising is associated with adiposity in children ages 2-11 years and teens ages 12-18 years." )
118. Law S A. Addiction, Autonomy, and Advertising. Iowa Law Review 1992, 77:909-955. Cf., 931-932 (rejecting regulation in the context of marketing addictive products to adults, reasoning that the " vast majority of advertising is not informational," but rather " beautiful, fast paced, funny, sensuous, provocative, or entertaining" ); but see, , 427 F.3d 840, 847 (10th Cir. 2005) (The Securities Act of 1933 regulates communication about stock for consideration, and although that communication may have " elements of entertainment," it is considered commercial speech and may be regulated.); see also, , 413 U.S. 49, 70 (1973) (Douglas J. dissenting) (comparing obscenity to " [a]rt and literature," ); , 413 U.S. 49, 57 (1973) (citing , 413 U.S. 15 (1973)) (holding that obscenity is subject to regulation by the states)
119. See also , 718 F.2d 738, 743 (5th 1983) (The state argued that liquor advertising " falsely identifying alcohol with 'the good life' instead of disclosing the personal and social disasters it threatens" was not protected speech.); see also, V. Blasi and H. P. Monaghan, " The First Amendment and Cigarette Advertising," 256, no. 4 (1986): 502-509 (proposing a ban on all tobacco advertising, arguing that the ads were misleading and deceptive because they exploited the psychological vulnerabilities of their audience, were image-oriented, and failed to disclose the lethal and addictive qualities, while providing little to no factual information about the product)
120. 443 U.S. 622, 634-635 (1979); , 390 U.S. 629, 640-641 (1968)
121. 390 U.S. 629, 639 (1968)
122. FTC Policy Statement on Deception, appended to , 103 F.T.C. 110, 181 (1984) (quoting , 64 F.T.C. 297, 310 (1964))
123. 517 U.S. 484, 503 (1996); see also , 496 U.S. 91, 105 (1990) (" We reject the paternalistic assumption that the recipients of petitioner's letterhead are no more discriminating than the audience for children's television." ); see also , 447 U.S. 557, 562 (1980) (" [W]e have rejected the 'highly paternalistic' view that government has complete power to suppress or regulate commercial speech." )
124. 390 U.S. 629, 640-641 (1968)
125. 390 U.S. 629, 639 (1968)
126. 390 U.S. 629 (1968)
127. 390 U.S. 629, 638 (1968)
128. Emerson T I. Toward a General Theory of the First Amendment. Yale Law Journal 1963, 72(no. 5):877-956. , 390 U.S. 629, 639 n.6 (1968) (quoting, at 938, 939)
129. 390 U.S. 629, 649-50 (1968) (Stewart, J., concurring). See , 556 F.3d 950 (9th Cir. 2009) (In addressing government regulation of violent video games to minors, the 9th Circuit limited the holding of to the obscenity context of sexually-explicit material. Even under this interpretation, the underlying premise that children warrant protection by the state remains intact, along with the understanding that children's First Amendment rights are not identical to that of adults.)
130. 443 U.S. 622, 634 (1979)
131. See , 390 U.S. 629, 640-641; , 44 F.3d 726, 732 (9th Cir. 1994) (Focusing on commercial speech's " potential for deception in light of the lessons of experience and the nature of the target audience." )
132. See Kunkel et al., note 24, at 16
133. See Harris et al., note 17; see also, Eisenberg, note 30
134. 443 U.S. 622, 634 (1979)
135. 390 U.S. 629, 649-50 (1968) (Stewart, J., concurring)
136. See Westen, note 2
137. See Post, note 66
138. 390 U.S. 629, 636-637 (1968) (" [W] e inquire whether it was constitutionally impermissible for New York, ... to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see. We conclude that we cannot say that the statute invades the area of freedom of expression constitutionally secured to minors." )
139. See , 127 S.Ct. 2489, 2495 (2007) (2007uoting , 436 U.S., at 458, 98 S. Ct. 1912, 56 L. Ed. 2d 444.)
140. 438 U.S. 726, 750 (1978)
141. If we were to take the Supreme Court at its word and consider only speech proposing a commercial transaction to be commercial speech, see , 507 U.S. 410, 423 (1993), then I question whether such speech can meets the definition of commercial speech because there can be no expectation of a commercial transaction. Young children lack the financial and legal means to contract for most products. See (" legal capacity to incur contractual duties." ); (" Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday." ). Speech seeking to make profit and directed at children is often relating to the economic interest of the commercial actor and the child's guardian, who has the capacity to purchase the product. The child - the recipient and intended audience of the speech - is not on the purchasing side of the transaction. A child must rely on the parent to contractually purchase the product and therefore the recipient of the speech lacks an economic interest in the communication. See , 447 U.S. 557, 561 (1980). A commercial actor cannot have a reasonable expectation of a completed commercial transaction with the intended receiver of its speech about its products. However, the Court has increasingly accepted a variety of communication as commercial speech rather than strictly relying on its definition
142. See Kunkel et al., note 24, at 11
143. Linn S, Novosat C L. Calories for Sale: Food Marketing to Children in the Twenty-First Century. Annals of the American Academy of Political and Social Science 2008, 615(no. 1):133-155. at 136-137 (" child-targeted marketing has become so ubiquitous and sophisticated that it presents a challenge to parental influence over children's food choices." )
144. 390 U.S. 629, 639 (1968)
145. 127 S.Ct. 2618 (2007); , 484 U.S. 260, 266-267 (1988)
146. Cunningham L. A Question of Capacity: Towards a Comprehensive and Consistent Vision of Children and Their Status under Law. U.C. Davis Journal of Juvenile Law & Policy 2006, 10:275-377. See , 443 U.S. 622, 633-639 (1979) (discussing varying contexts where constitutionally children are treated differently under the law); see also
147. 517 U.S. 484, 498, 501 (1996) (" When a State regulates commercial messages to protect consumers from misleading, deceptive, or aggressive sales practices, or requires the disclosure of beneficial consumer information, the purpose of its regulation is consistent with the reasons for according constitutional protection to commercial speech." )
148. 413 U.S. 49, 64 (1973)
149. 436 U.S. 447, 465 (1978); see also , 515 U.S. 618, 635 (1995) (upholding a 30-day restriction on targeted direct-mail solicitations of accident victims and their relatives); but see , 127 S.Ct. 2489, 2492 (2007) (declining to extend the holding of beyond the attorney-client context)
150. 507 U.S. 410, 433 (1993) (1993lackmun J. concurring) (citing )
151. 413 U.S. 49, 67 (1973)
152. http://www.fda.gov/oc/mous/domestic/225-71-8003.html, See FTC Act of 1938, 15 U.S.C. §§5, 12, 13; Memorandum of Understanding between the Federal Trade Commission and the Food and Drug Administration, 1971,, last visited January 2, 2009
153. 15 U.S.C. 57a(a)(1)(A)
154. 15 U.S.C. 57a(a)(1)(B)
155. See Pomeranz, note 9
156. See , 223 F.3d 783, 787 n. 4 (DC App. 2000); , 970 F.2d 311, 317-318 (7th Cir. 1992)
157. 970 F.2d 311 (7th Cir. 1992) (quoting , 471 U.S. 626, 645 (1985)
158. See Pomeranz, note 9
159. See FTC 1984, note 129, at 170-171
160. Id., at 170
161. Id., at 172
162. at 175-176, fn15 (citing , 87 F.T.C. 421, 497 (1976), aff'd, 605 F.2d 964 (7th Cir. 1979), cert. denied, 445 U.S. 934 (1980), modified, 100 F.T.C. 500 (1982).)
163. 605 F.2d 964, 967-968 (1979)
164. 87 F.T.C. 421, 497 (1976), aff'd, 605 F.2d 964 (7th Cir. 1979), cert. denied, 445 U.S. 934 (1980), modified, 100 F.T.C. 500 (1982).)
165. Mello M M. Federal Trade Commission Regulation of Food Advertising to Children: Possibilities for a Reinvigorated Role: Journal of Health, Politics, Policy and Law. 2010, quoting Federal Trade Commission. 1978. FTC staff report on television advertising to children. Washington: Federal Trade Commission.) (" The conclusion that only restrictions or bans on advertising to young children would constitute a sufficient remedy is supported by the American Psychological Association, which has reported that 'studies make clear that young children do not comprehend the intended meaning of the most widely used disclaimers.'" ) (quoting Kunkel et al., note 24
166. See FTC 1984, note 129, at 171
167. See , 433 U.S. 350, 383 n.37 (1977))
168. See FTC 1984, note 129, at 181 (quoting , 433 U.S. 350, 383 n.37 (1977))
169. Id., at 181 (quoting , 64 F.T.C. 297, 310 (1964))
170. Id., at 171
171. Id., at 188
172. at 191-192 (" A finding of materiality is also a finding that injury is likely to exist because of the representation, omission, sales practice, or marketing technique. ... Injury exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. Thus, injury and materiality are different names for the same concept." )
173. Id., at 171
174. Id., at 190
175. See , 970 F.2d 311, 322 (1992); see also, , 570 F.2d 157, 162 (7th Cir. 1977) (" The fact that health is involved enhances the interests of both consumers and the public in being assured 'that the stream of commercial information flow cleanly as well as freely." )
176. 41 F.3d 81, 85-86 (3rd Cir. 1994)
177. 476 U.S. 447, 454 (1986); 15 U.S.C. 45(c)
178. See e.g., , 41 F.3d 81 (3rd Cir. 1994); , 767 F.2d 957 (Ct. App. DC 1985)
179. 476 U.S. 447, 454 (1986) (Any " legal issues presented - that is, the identification of governing legal standards and their application to the facts found," are for the courts to resolve.); see also , 534 F.3d 410, 422 (5th Cir. 2008) (" We review all legal questions pertaining to Commission orders." ); , 402 F.3d 1056, 1063 (11th Cir. 2005) (same); " R" Us, Inc. v. FTC, 221 F.3d 928, 934 (7th Cir. 2000) (same)
180. But see, , 515 U.S. 618 (1995) (1995pholding a 30 day commercial speech restriction to protect the personal privacy of accident victims and their families from intrusive letters by attorneys)
181. 533 U.S. 525 (2001)
182. 447 U.S. 557, 564 (1980)
183. 447 U.S. 557, 564 (1980)
184. See Pomeranz, note 9 (If Congress reinstated the FTC's authority to pursue rulemaking as unfair in this area, any FTC action would likely be subject to the full test because " unfair" commercial speech is not traditionally in the category of speech that the Supreme Court has removed from First Amendment protection
185. 515 U.S. 618, 625 n.1 (1995) (" [A] single substantial interest is sufficient to satisfy [second] prong." ) (, 514 U.S. 476, 485 (1995) (deeming only one of the government's proffered interests " substantial" ))
186. The government's interest cannot be framed as advancing speech restrictions for a product it considers problematic because there is no vice exception to the First Amendment. See , 517 U.S. 484, 513-514 (1996) (" Almost any product that poses some threat to public health or public morals might reasonably be characterized by a state legislature as relating to 'vice activity.' Such characterization, however, is anomalous when applied to products such as alcoholic beverages, lottery tickets, or playing cards, that may be lawfully purchased on the open market ... For these reasons, a 'vice' label that is unaccompanied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity." ); see also, , 533 U.S. 525, 589 (2001) (Thomas J. concurring)
187. 514 U.S. 476, 485 (1995) (" Government here has a significant interest in protecting the health, safety, and welfare of its citizens by preventing brewers from competing on the basis of alcohol strength, which could lead to greater alcoholism and its attendant social costs." ); see also , 515 U.S. 618, 625 (1995) (1995s part of states' " 'power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions.'" ) (quoting , 421 U.S. 773, 792 (1975)); see also Lawrence O. Gostin, , 2nd ed. (Berkeley: University of California Press, 2008): at 79-80 (The police power of states and their political subdivisions includes the power to enact laws, promulgate regulations, and take action to protect, preserve, and promote public health, safety, and welfare.)
188. 492 U.S. 469, 475 (1989) (1989inding the asserted government interests to be " substantial: promoting an educational rather than commercial atmosphere on SUNY's campuses, promoting safety and security, preventing commercial exploitation of students, and preserving residential tranquility." )
189. See also, The World Health Organization's was endorsed by the 57th World Health Assembly in 2004 (recommending that " food and beverage advertisements should not exploit children's inexperience or credulity," should discourage messages that promote less healthful dietary practices, and should encourage positive healthful messages)
190. Cf. , 291 U.S. 304, 313 (1934) (1934pholding the FTC's determination that the sale of candy involving " chance" was " shown to exploit consumers, children, who are unable to protect themselves" )
191. 530 U.S. 525, 555 (2001)
192. 530 U.S. 525, 557 (2001)
193. Cf. , 515 U.S. 618, 628 (1995) (1995tating the Court does not require " empirical data" under prong three); but see , 507 US 761 (1992) (1992triking ban on in-person solicitation by CPAs because the board presented not evidence); see also, , 517 U.S. 484, 505 (1996) (1996an on advertising alcohol prices struck down because the state did not present evidence of its potential efficacy)
194. 530 U.S. 525, 561 (2001)
195. See IOM 2006, note 10, at 8, 227 and References at 309-318
196. See Story and French, note 18, at 3, 11
197. See Hastings et al., note 16; see Harris et al., supra note 12; see also, Westen, note 2, at 84 (" 60,000 pages of expert testimony" were archived)
198. See Story and French, note 18, at 3
199. See Linn and Novosat, note 153, at 150
200. Id., at 137
201. See Kunkel et al., note 24, at 20
202. See Campbell, note 113 (arguing that product placement and character selling are deceptive techniques when used to market to children)
203. 447 U.S. 557, 564 (1980)
204. 521 U.S. 844, 874 (1997)
205. 533 U.S. 525, 565 (2001) (2001nvalidating the speech restrictions because " governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults" ) (citing , 521 U.S. 844, 875 (1997))
206. See Cunningham, note 156, at 286 (Noting that under United States law, the age of majority is 18 years old; however, in many states, a child can drive at 16, be sentenced to adult prison for certain offenses at 14, but cannot purchase alcohol until age 21.)
207. Papandrea M-R. Dunwody Distinguished Lecture in Law: Article: Student Speech Rights in the Digital Age. Florida Law Review 2008, 60:1027-1102. 1082 (" Certainly if by 'children' we mean persons from birth to age eighteen, claims that children are emotionally and mentally less mature and more vulnerable than adults are obvious. Most of the students asserting their free speech rights, however, ... are at least twelve years old, and the vast majority are in high school. Thus, when considering the free speech rights of students, ... the discussion is about the free speech rights of adolescent students." ); c.f. Cunningham, note 156, at 360-363 (The Court applied different First Amendment standards to children between 8 and 14 years of age in the public school context)
208. Jeffery B. The Supreme Court of Canada's Appraisal of the 1980 Ban on Advertising to Children in Quebec: Implications for 'Misleading' Advertising Elsewhere. Loyola of Los Angeles Law Review 2006, 39:237-276. at 239-240, n. 13
209. (Jeffery), at 239-240, n. 13 (translating the words of the Attorney General)
210. See FTC, note 20
211. See IOM, note 12, at 25
212. Schor J B. Born to Buy: The Commercialized Child and the New Consumer Culture 2004, 108. New York, Simon & Schuster Scribner, at
213. at 106
214. Pechmann C, Levine L, Loughlin S, Leslie F. Impulsive and Self Conscious: Adolescents' Vulnerability to Advertising and Promotion. American Marketing Association 2005, 24(no. 2):202-221.
215. http://www.rules.house.gov/111/LegText/omni/jes/divdjes_111_hromni2009_jes.pdf, See Government Appropriations Act 2009, Division D (Financial Services and General), at 39,, last visited January 12, 2010
216. Teinowitz I. FTC Could Set Standards for Food Marketing Aimed at Teens: Omnibus Appropriations Bill Calls for Study, Broadens Scope: Advertising Age. March 11, 2009
217. See FTC, note 20, at Executive Summary at 10
218. Fabrikant G. Nickelodeon Sees Mouse Ears Over Its Shoulder: New York Times. October 14, 2006, in 2006, on average, children watching Nickelodeon: 1.2 million; and Disney Channel: 863,000
219. http://www.fcc.gov/Speeches/Hundt/spreh751.txt, See R. E. Hundt, Chairman, " Speech to the Center For Media Education's Press Conference on the New Children's Television Act Rules, Federal Communications Commission," Washington, D.C., September 18, 1997 (For the 1997/1998 Season: " On any given Saturday morning at 10 am, there are 11 million kids age 2-11 watching TV." ),, last visited January 12, 2010
220. See Batada et al., note 117
221. See , 517 U.S. 484, 499 (1996) (1996uoting , 431 U.S. 85, 96 (1977) (1977tating that the government retains more regulatory authority when commercial speech restrictions strike at the " commercial aspect" of the speech, i.e., " with offerors communicating offers to offerees," rather than at the substance of the communication.)
222. http://www2.kelloggs.com/ServeImage.aspx?BID=38303&MD5=f484914d935a3d67b411830064555980, http://www.webmd.com/food-recipes/news/20081001/kids-cereals-some-are-50-percent-sugar, See Kellogg's Honey Smacks nutrition facts panel,, last visited January 12, 2010); Honey Smacks contains 15 grams of sugar per serving which is one of the highest of any cereal. See S. Boyles, reviewed by E. Klodas, " Kids' Cereals: Some Are 50% Sugar: Consumer Reports Rates Nutritional Winners and Losers," WebMD Health News, October 1, 2008,, last visited January 12, 2010
223. See , 521 U.S. 844, 865 (1997) (1997iting , 390 U.S. 629 (1968))
224. See , 431 U.S. 85, 93 (1977) (1977uoting , 425 U.S. 748, 771 (1976)
225. C.f. , 533 U.S. 525, 565 (2001) (2001nvalidating speech restrictions because " governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults" ); , 521 U.S. 844, 874 (1997) (1997triking down Communications Decency Act, which sought to deny minors access to potentially harmful speech on the internet, but " effectively suppresse[d] a large amount of speech that adults have a constitutional right to receive and to address to one another." ); , 463 U.S. 60, 73, 75 (1983) (" The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." ); , 352 U.S. 380 (1957) (1957nvalidating a Michigan statute that made it a crime to sell literature that was inappropriate for minors to the general public because such a statute would " reduce the adult population of Michigan to reading only what is fit for children" )
226. 425 U.S. 748, 765 (1976)