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The Story Behind the Story


New York Times columnist Mark Bittman caused a stir last week after he penned an opinion piece arguing that the First Amendment does not protect the food and beverage industry from potential government regulations limiting what can be marketed to children.

The piece, heavily circulated on social media such as Twitter, came together in part due to the research efforts of Leader Samantha Graff, director of legal research at Public Health Law and Policy.

Graff and her peers have spent the past several years researching relevant legal doctrine, and the impact of marketing on children, to determine whether the First Amendment would protect food and beverage marketing to children as speech, or if regulation could be used to limit it. Graff tells The Inside Track that Bittman’s article could go a long way in helping push the issue forward

"I was thrilled that he recognized the importance of this topic, because industry throws the First Amendment around to confuse and intimidate policymakers," Graff says. "Our goal is to bring clarity into the public conversation about this."

Bittman first contacted Graff several weeks ago, she says, after he came across an article she and Jennifer Harris of the Rudd Center for Food Policy & Obesity wrote for the American Journal of Public Health. That article notes that the Supreme Court originally justified extending First Amendment protection to commercial speech to ensure consumers have access to accurate information about products available in the marketplace. What makes food and beverage marketing different, Graff explains, is that research shows that many modern marketing techniques don’t just provide information, they in fact communicate in ways that young people are not able to recognize as advertising or as potentially misleading.

Graff also shared with Bittman an article she wrote for Health Affairs with her colleagues Ted Mermin and Dale Kunkel making the case that all marketing to children under 12 is "inherently misleading" and therefore unprotected by the First Amendment.

Graff and Bittman talked about these journal articles over the course of several weeks. They also discussed related legal cases, including recent First Amendment rulings regarding graphic warning requirements in the new federal tobacco control act, Graff says.

"Bittman is not an attorney, but he’s extremely astute about the implications of the direction the commercial speech doctrine has been heading for efforts to protect children from junk food marketing," Graff says.

Graff says she was pleased with Bittman’s final piece (in which she is quoted) and found herself quite interested in the comments that were posted on theNew York Times website accompanying the column.

"He got nearly 200 comments, and I was surprised by how thoughtful many of the responses were, and how his readers really got it," she says.

While the comments were uplifting, the possibility of regulation remains uncertain.

In recent years, the federal government hasn't taken much action on food and beverage marketing directed at children. The closest attempt came last year, when at the request of Congress a coalition of federal agencies called the Interagency Working Group (IWG) on Food Marketed to Children introduced a proposed set of voluntary nutritional guidelines for companies to follow when marketing to kids.

The guidelines — which were not considered regulations because companies wouldn’t have been required to follow them — have not moved forward because of intense industry pushback.

Still, Graff is pleased that the conversation about regulating junk food marketing continues with the publishing of Bittman’s piece and the largely positive reaction it got online.

"It was really satisfying to see that," she says. "It means that this is a topic that people are grasping, and he made it available to people in a forum that is reaching parents and other members of the general public who follow food policy issues."