Law Professors: Food Marketing Guidelines Do Not Violate First Amendments

Argue guidelines are voluntary; push FTC, FDA not to back down

By John Eggerton -- Broadcasting & Cable, 9/6/2011 10:37:49 AM

A host of academics have called on the heads of the Federal Trade Commission, Food & Drug Administration, and other top government officials not to back away from proposed food marketing guidelines that have been heavily criticized by food and media companies.

In an "open letter" signed by three dozen law professors from some big name schools -- Harvard, Yale, Georgetown and others -- the professors argue that since the guidelines, produced by an interagency working group (IWG) on food marketing to kids, are voluntary, they do not, "in their current form" violate the First Amendment.

"The IWG is not requiring loyalty oaths, threatening criminal prosecution, or confiscating real estate, It is not establishing or invoking a legal regime. It is simply following a congressional mandate to issue a report with recommendations based on the agencies' expert analysis of the relevant facts," they wrote.

The letter is meant to counter food industry and media comments on the guidelines that suggest they do violate the First Amendment, even as guidelines, because of the chill they put on speech as a form or regulation by proxy via pressure or coersion.

A copy of the letter was also sent to the White House asking the administration not to back off support for the guidelines in the face of lobbying against them by industry.