In an article titled “Government Can Regulate Food Advertising to Children Because Cognitive Research Shows That It Is Inherently Misleading,” two attorneys and a communications professor assert that the First Amendment is no bar to the regulation of “junk food” ads targeting children younger than 12 because they lack the ability to understand the advertisers’ intent. Because children are unable to effectively comprehend advertising, according to the authors, any commercial messages directed toward them are “inevitably misleading.” The research and article were supported in part by a Robert Wood Johnson Foundation grant.

The article first cites research about the amount of time children spend watching TV as well as “more than sixty published studies” purportedly linking TV exposure and obesity. It also discusses the numbers of “low-nutrient, calorie-dense” products advertised to children daily on TV and notes that the most heavily advertised food brands are also promoted online through advergames and other interactive techniques. Turning to First Amendment jurisprudence, the article then asks, “How is it that ‘freedom of speech’ came to include not only political commentary and artistic expression but also junk food ads?”

The authors contend that under the U.S. Supreme Court’s “Central Hudson test,” ads that promote illegal activity, are false or are actually or inherently misleading are exempt from First Amendment protection. According to the authors, studies show that children cannot reliably distinguish program content from commercial advertising until about age 4 or 5; children do not consistently demonstrate the knowledge that advertising messages are intended to sell products until about age 8; and “children generally lack effective understanding of advertising tactics such as exaggeration, embellishment, and ‘puffery’” until about age 11 or 12. Because the intended audience cannot properly comprehend food ads, the authors argue that government may ban advertising to children outright given that this lack of comprehension makes the ads inherently misleading.

They suggest that Congress “could bar all online junk food advergames aimed at children; the Federal Communications Commission could cap the number of junk food advertisements on children’s television programs; or the Federal Trade Commission could restrict the use of licensed characters in ads directed to children.” They conclude, “Any government efforts to regulate food advertising to children may face political hurdles, but the First Amendment should not pose an obstacle.” See Health Affairs, February 2012.