Annals of Health Law
HOW TO REGULATE TOXIC FOODS
they are misleading. 188 Prescription drug advertisements must include side
effect warnings in addition to the potential benefits of the medication. 189
Similar requirements should be imposed for products in excess of a set
number of grams of sugar per serving.
In order to satisfy the Central Hudson requirement that any regulation
directly advance governmental interest and be narrowly drawn, advertising
restrictions may initially be limited solely to advertisements directed to
minors, on the theory that adults are capable of making their own informed
choices. Alternatively, advertising restrictions could be imposed more
broadly, but only to products with sugar content that exceeds a specified
Age restrictions, which apply to tobacco products and alcoholic
beverages, should not apply to added sugar. While tobacco and alcoholic
beverages are consumed by choice, food is a necessity. And until we
drastically change the food supply, most children will consume sugar before
they are old enough to understand nutritional information. Once they are
old enough to shop independently, it will be difficult to prohibit something
they have grown accustomed to. It may be feasible to impose age
restrictions; many grocery stores sell cigarettes, beer and wine while
imposing the necessary age restrictions. But because added sugar is present
in so many products, an age restriction may be difficult to monitor. For
example, the entire cereal aisle of the typical grocery store might be off-limits, along with the soda, ice cream, and bakery sections. 190 Therefore,
monitoring age restrictions may be difficult and costly. 191 A better
approach would be to restructure grocery stores in a manner that embraces
our understanding of how product placement influences purchasing
Perhaps the strongest argument against imposing an age restriction on
188. Central Hudson Gas & Electric Co. v. Public Service Comm’n, 447 U.S. 557, 565
(1980) (“[T]here can be no constitutional objection to the suppression of commercial
messages that do not accurately inform the public about lawful activity”). This is why
prescription drug advertisements generally end with a person informing of possible side
effects associated with advertised drug.
189. 21 U.S. C. §§ 301 et seq.
190. See Here’s the Thing, supra note 112.
191. Moreover, if the age restriction applies only to products with, for example, more
than ten grams of added sugar per serving, manufacturers will likely re-formulate their
products to come in just under the restrictive number of grams of sugar. Of course, this
would be a good thing, especially if the number of sugar grams subject to an age requirement
was continually adjusted downward so that eventually very few products contain excessive
amounts of sugar.
192. RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT
HEALTH, WEALTH, AND HAPPINESS 2-3 (2008) (noting that where items are placed has a
significant impact on choice).