Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
regulatory actions and stimulate parallel legal responses in other localities.31
IV. PROTECTIONS FOR SPEECH AND THEIR IMPLICATIONS FOR
Speech protections established by the First Amendment may impede local
governments’ development of innovative regulatory approaches for the food
system. The freedom of speech clause in the First Amendment protects
against government interference with the right to expression.32 Judicial
interpretation of this guarantee has resulted in the bestowal of extensive
speech rights to corporations, and these rights have important implications
for communications between food system industries and the public.
At its core, the First Amendment protects the “free exchange of ideas,”33
which traditionally takes the form of political and religious speech.34 This
core speech is strictly protected against government restriction; government
regulations in this context thus rarely survive judicial scrutiny.35 A second
31. Interestingly, while businesses within the food system can initiate lawsuits to address
perceived wrongs by localities, nearly half of the U.S. states have passed industry-backed
legislation to prevent food and beverage manufacturers from being subject to certain types of
litigation. In other words, while businesses within the food system can serve as plaintiffs in
litigation, twenty-four states have limited the context in which some of these businesses can
be defendants in a lawsuit. TRUST FOR AMERICA’S HEALTH, SUPPLEMENT TO “F AS IN FAT: HOW
OBESITY POLICIES ARE FAILING IN AMERICA” (2007). The laws that immunize these businesses
from certain lawsuits, known as “cheeseburger bills” or “commonsense consumption laws,”
gained traction in the mid-2000s. This type of legislation was initially enacted in response to
litigation brought in New York against a fast food restaurant by two teenagers who claimed
the restaurant’s food caused them to develop health problems such as obesity and diabetes.
Mello et al., supra note 10. The plaintiffs argued that the restaurant had violated New York’s
consumer protection laws, through advertisements that falsely suggested its food was
“nutritionally beneficial and part of a healthy lifestyle if consumed daily” and failure to
properly disclose that, due to food processing, some of its food was “substantially less healthy
than represented.” Pelman v. McDonald’s Corp., 396 F. Supp. 2d 439, 442 (S. D.N.Y. 2005).
As an immediate response, industry organizations, including the National Restaurant
Association and its state affiliates, began to work directly with legislators throughout the
country to introduce legislation that would immunize food and beverage manufacturers from
facing these types of lawsuits. Melanie Warner, The Food Industry Empire Strikes Back, N. Y.
TIMES, July 7, 2005.
32. U.S. CONST. amend I.
33. Ashcroft v. ACLU, 535 U.S. 564, 573 (2002).
34. See, e.g., Buckley v. Valeo, 424 U.S. 1 (1976); Capitol Square Rev. & Advisory Bd.
v. Pinette, 515 U.S. 753 (1995).
35. In 2010, the U.S. Supreme Court expanded the political speech rights of corporations,
making them more similar to the rights of actual persons to participate in political speech. The
groundbreaking case of Citizens United v. Federal Election Commission made it possible for
corporations to spend unlimited money on advertising to support or oppose candidates during
elections. 558 U.S. 310 (2010). For example, businesses can now fund political commercials
to encourage the election of candidates who support the deregulation of products or oppose