Nutrition and child advocates are pushing for government policies to counteract the onslaught of junk food marketing targeted at our children.

But there’s something many don’t know: an array of lawsuits currently making their way through the courts could derail our ability to pursue these kinds of regulations.

Right now, judges are preparing to rule on cases that carry major implications for how products like candy, fast food, and soda are marketed to kids. These cases will decide whether the government can prohibit companies from giving free samples of harmful products to children. Whether the government can require stores to post warnings about a product’s dangerous health consequences. Whether the government can require effective disclosures so consumers know what’s in the products they are buying.

These issues and more are currently in play in federal courts around the country. So how could nutrition advocates not know about them?

Because the cases are all about tobacco. 

The way our court system works, the outcome of each of these cases has serious implications for food policy, so it’s critical that advocates concerned about obesity and advertising to children pay attention and maybe even get involved.

In a “common law” system like ours, the decision of one court on one topic area may influence—or even bind—a later court interpreting a similar legal provision. So a court interpreting the First Amendment in a cigarette marketing case could be deciding not just what goes for tobacco but what goes for any product that any company wants to advertise.

For instance, an appeals court recently struck down a federal “tombstone advertising” law that limited tobacco ads to black text on a white background, with no pictures. The government’s justification for the law was that an information-only approach makes dangerous products less enticing to children. But the court struck down the law, holding that images and colors are entitled to First Amendment protection–and this ruling means that any future tombstone advertising requirements, for any consumer products, face long odds.

That same court also held that the First Amendment protects the distribution of free tobacco samples as a form of free speech–instantly making it harder to enact laws that would restrict giveaways of free samples of infant formula or energy drinks or alcohol.

Other cases involving tobacco could have a dramatic effect on future efforts to curb junk food advertising and sales practices. A case deciding whether New York City can require tobacco retailers to place graphic warning signs in their stores will certainly influence whether cautionary images could be required in stores selling junk food or energy drinks. A case deciding whether Providence, Rhode Island, can bar tobacco retailers from accepting coupon and multipack discounts will surely figure into whether other communities will be able to do the same with, say, sugar-sweetened beverages.

The influence of tobacco cases on food and beverage laws is not speculative. In 2001, the Supreme Court restricted states’ ability to ban tobacco advertising near schools, setting limits that nutrition advocates are contending with today.

We know that obesity is shortening the lives of our nation’s children. We know that marketing of unhealthy foods contributes to the epidemic. And we know that industry is successfully invoking the First Amendment in the courts to block public health efforts that could ameliorate the problem.

Advocates can follow pending tobacco marketing cases as they develop and in some instances can get involved directly by filing amicus curiae (“friend of the court”) briefs, which are submitted by individuals or organizations with a strong interest in the subject matter of a lawsuit who are not parties to the litigation. Through an amicus brief, policy advocates may be able to participate in a tobacco marketing case by adding a unique public health perspective to the mix.

The cutting edge of government restrictions on the marketing of unhealthy products now lies in the realm of tobacco, and the ultimate outcome of any of these cases could have a profound effect on obesity prevention measures for years to come. It’s worth paying attention and getting involved.

See our summary of pending tobacco marketing cases at http://changelabsolutions.org/publications/tobacco-litigation. 

Contact us for more on how to file an amicus brief at info@changelabsolutions.org.

Photo: jhmostyn on Flickr