In the dog days of summer 2016, the US Department of Agriculture (USDA) ordered local government authorities to ban advertising for a select group of “disfavored” food and beverage products. The agency’s brazen action establishes a deeply troubling precedent in government’s efforts to usurp our freedom to choose what we eat and drink. Over the last several years, Washington Legal Foundation has closely tracked and strategically opposed actions such as USDA’s ban through our “Eating Away Our Freedoms” project. We launched that project five years ago this month on October 20, 2011.
The EatingAwayOurFreedoms.org website is organized by the four major tactics that activists use to denigrate certain foods and beverages and to stigmatize consumers’ choice of those products: regulation, litigation, taxation, and public-relations demonization. For several years, the “regulation” page contained far fewer references to news articles and other analyses than the other three. But as government’s appetite for food-related mandates and restrictions has grown, the number of “regulation” entries has ballooned. USDA’s ad ban is perhaps the most pernicious regulation EatingAwayOurFreedoms.org has ever encountered.
The federal government cunningly wrapped its food-ad ban in the sympathetic mantle of public-school nutrition. The July 29, 2016 final rule implements § 204 of the Healthy, Hunger-Free Kids Act of 2010. The rule dictates how local education agencies (i.e. school boards) are to devise “local school wellness policies.” The optimal path to student wellness, UDSA asserted in the 2014 proposed rule, is “enhanc[ing] and encourag[ing] participation in school meal programs.”
In order to achieve this questionable goal, school boards are ordered to prohibit the sale of food products that the federally subsidized school lunch program does not cover. These foods, which aren’t covered by subsidized school lunches because they fail to meet USDA’s definition of a “Smart Snack,” are known as competitive foods. What’s competitive about these particular items? They compete with the federal government’s ability to “encourage” what it considers healthy eating. And what’s healthy (or, in government-speak “smart”) you may ask? You can refer to these helpful USDA-approved flowcharts to see if a snack is smart.
Banning the sale of disfavored products wasn’t enough for USDA, however. Even though the 2010 act made no reference to advertising in school, the proposed rule also mandated that public schools ban marketing of these now-unavailable foods and beverages. The proposal offered little justification for the ban other than citations to a few activist-generated studies, and it made no reference to the First Amendment. Of the 57,838 comments filed, only one—WLF’s—questioned the rule’s constitutionality.
The final rule is similarly bereft of substantive justification for the ban and failed to address our First Amendment argument (arguably in violation of the Administrative Procedure Act). School boards must prevent marketing of disfavored foods “on the exterior of vending machines, through posters, menu boards, trash cans … [and] cups used for beverage dispensing.” No doubt ads in school newspapers are verboten as well. If a school’s “durable equipment,” such as a scoreboard, contains prohibited ads, the rule dictates that future “replacement and purchasing decisions should reflect the … marketing guidelines.” The rule stresses that it prescribes only “minimum standards” for marketing restrictions. It encourages school boards to consider imposing more “stringent” policies, such as expanding the ban to “marketing that occurs at events outside of school hours … or any other events, including school fundraising.”
Had USDA actually bothered to defend the ad ban’s constitutionality, it likely would have echoed Agriculture Secretary Vilsack’s statement at the White House event announcing the proposed rule: “If you can’t sell it, you ought not to be able to market it.” As a May 2014 WLF Legal Pulse post on the proposal remarked, “That makes for a nice sound bite, but it’s not a winning constitutional argument.” Though the First Amendment does not protect commercial speech that proposes an illegal transaction, non-SmartSnacks are not illegal for underage consumption (at least not yet). Students can still lawfully purchase and bring those disfavored foods and beverages to school.
The marketing ban blatantly discriminates against specific speech based on an advertisement’s content. Ads for a diet soda are ok, but non-diet soda ads are not. A disposable lunch tray promoting yogurt containing an unacceptable amount of sugar is prohibited, but one featuring the same product with reduced sugar passes muster. US Supreme Court precedents hold that content-based discrimination against commercial speech must withstand “heightened” judicial scrutiny. Government entities defending such restrictions must offer a “neutral justification” for its action, such as preventing fraud or correcting false or misleading speech. USDA’s ban is meant to influence students’ consumption decisions, not prevent fraud or consumer confusion. But while government may use its own speech to encourage such consumption, it may not lawfully impede the commercial speech of others.
A development late last year illustrates just how far off the constitutional reservation USDA has strayed. In June 2015, San Francisco adopted a food-and-beverage marketing ban quite similar to that imposed by USDA’s School Wellness rule. The city targeted soda and other “sugary drink” advertisements that appeared on public property. Beverage makers launched an aggressive First Amendment challenge, arguing that the ban was a content-based speech restriction for which San Francisco could not offer a neutral justification. Rather than fight a losing battle, the city repealed the law in December 2015.
USDA’s rule is equally, if not more, vulnerable to First Amendment challenge. The question is: who will challenge it? The most directly affected entities—product advertisers—have not spoken out against the rule and are thus unlikely to challenge it. Their knuckling under is unfortunate, but other interested parties might be willing to file suit. A student or group of students would have standing to sue. A local business prohibited from supporting a school function with a paid advertisement because it sells non-SmartSnacks would have standing as well. The most intriguing possibility for a plaintiff is a dissenting school board. School boards are not only required to implement a policy that violates speech rights, they are being coerced into doing so by the threat of withheld federal funds for school lunches.
Personal responsibility and freedom of speech are principles that public schools should be teaching. How can schools credibly fulfill their pedagogical mission by implementing a federally mandated advertising ban that undermines those principles?
Also published by Forbes.com on WLF’s contributor page.