Vol 22, 2013 Annals of Health Law
LOCAL GOVERNMENT AND THE FOOD SYSTEM
category of speech, “commercial speech,” is generally defined as “speech
that proposes a commercial transaction,”36 and is a fairly recent construction
by the U.S. Supreme Court.37 The majority of commercial speech cases
involve industry challenges to restrictions on advertisements for products and
services. The Supreme Court has said that commercial speech restrictions
garner “intermediate” judicial scrutiny, meaning any restriction must directly
advance a substantial government interest.38 The Court has not upheld a
commercial speech restriction since 1995,39 and recent cases indicate
increased protection for commercial speech than in the past.40
Businesses value their right to communicate with the public to effectively
market their products. When government seeks to shield children or the
general public from communications that involve products with the potential
to cause public health harms, the impacted industry will sometimes challenge
the law on First Amendment grounds. For example, in the pivotal case
Lorillard v. Reilly,41 the tobacco industry challenged a Massachusetts law
that sought to restrict tobacco advertising on billboards within 1,000 feet of
child-oriented places (e.g., schools), among other requirements. Importantly,
tobacco is a product that children cannot legally purchase, whereas children
can legally purchase any food product.42 The Supreme Court struck down the
advertising restrictions as violating the First Amendment rights of tobacco
companies to communicate with adults and the corresponding rights of adults
to receive such information.43 There has not been similar litigation in the
context of food advertisements or similar products that children can legally
purchase. However, the Supreme Court has explained that it is skeptical when
government seeks to “keep people in the dark for what the government
believes to be their own good.”44
the increase in minimum wage standards, in direct opposition to public health interests. Lainie
Rutkow, Jon S. Vernick & Stephen P. Teret, The Potential Health Effects of Citizens United,
362 NEW ENG. J. MED. 1356 (2010).
36. Bd. of Trustees of the State U. of New York v. Fox, 492 U.S. 469, 482 (1989).
37. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748
38. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557,
573 (1980) (Blackmun, J., concurring).
39. Fla. Bar v. Went for It, Inc., 515 U.S. 618 (1995).
40. Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011); see also Jennifer L. Pomeranz, No
Need to Break New Ground: A Response to the Supreme Court’s Threat to Overhaul the
Commercial Speech Doctrine, 45 LOY. L. A. L. REV. 389 (2012).
41. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001).
42. Cf. James G. Hodge, Jr. et al., New Frontiers in Obesity Control: Innovative Public
Health Legal Interventions, ___ DUKE F. L. & SOC. CHANGE ___ (forthcoming 2013).
43. Lorillard, 533 U.S. 525.