Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate

Abstract

In response to the obesity epidemic, much discussion in the public health and child advocacy communities has centered on restricting food and beverage marketing practices directed at children. A common retort to appeals for government regulation is that such advertising and marketing constitutes protected commercial speech under the First Amendment. This perception has allowed the industry to function largely unregulated since the Federal Trade Commission (FTC)'s foray into the topic, termed KidVid, was terminated by an act of Congress in 1981. The FTC has since focused on self-regulation as a potential solution to such concerns. However, this method of control has proven ineffective to protect children, and has led to growing recognition that federal regulation may be necessary.Since KidVid, the evidence has only mounted that children are uniquely vulnerable to the effects of advertising. Over the same time period, the exposition of commercial speech jurisprudence has plateaued, as the Supreme Court has not decided a pure commercial speech case since 2002.