Not only is Happy Meal marketing aimed at children not legal, any marketing aimed at children isn’t legal.
We covered the San Francisco Happy Meal toy ban from beginning to end and then some, delving into a couple of different angles and topics. But one thing we didn’t spend a lot of time looking at was the strictly legal precedence for the ban, the legal details. Well, we aren’t lawyers, so it’s not a big surprise, but I recently read a cool, interesting, easy-to-read post on this topic (written by a lawyer) and thought it not only warranted but required a quick share.
The piece, Why the Happy Meal is a Crime—and Not Just a Culinary One, basically informs us that marketing to children is a clear crime. Yeah, not just marketing Happy Meals that are bad for their health, but marketing everything and anything.
Surprise you? Yeah, it surprised me too. But it is a very logical thing and I think many of us intuitively got the point that this was the case.
Why Marketing to Children is Illegal
“Our legal system does not allow marketers to advertise just as they wish, either to children or adults,” Michele Simon of Civil Eats writes. “We have consumer protection laws because marketers aren’t exactly trustworthy. From time to time, they’ve been known to stretch the truth.”
You’ve probably heard the term: deceptive marketing. This is not allowed.
Deceptive marketing includes lying about your product (e.g. about its health benefits). Here’s more on why any marketing aimed at kids is deceptive:
Now, what about marketing to children? Ample science, along with statements by various professional organizations tells us that marketing to young children is both deceptive and unfair. Why? Because young children simply do not have the cognitive capacity to understand that they are being marketed to; they cannot comprehend “persuasive intent,” the linchpin of advertising. Here’s how the nation’s trade group for kids’ doctors puts it: “The American Academy of Pediatrics considers advertising directly to young children to be inherently deceptive, and exploits children under the age of 8 years.”
So, yes, marketing to children is outright deceptive and, therefore, illegal. And, yes, to clarify, there’s a lot of illegal marketing going on. Basically, the political will and legal resources to enforce the law are currently inadequate. Plus, there has not been an up-swell of public demand to change the way business is being conducted.
But when a specific case comes up, like the Happy Meals case, the law is on the side of those opposed to predatory marketing.
First Amendment Not an Issue, and Top Lawyers Have Our Back
Many people may be inclined to think that freedom of speech granted to us under the First Amendment allows companies to say whatever they want, but as I touched on above, there are a few limits to this freedom. One such limit or exception is when it comes to this issue of deceptive marketing.
“We have plenty of examples of the federal government stepping in to stop shady marketing claims, such as skin patches causing weight loss,” Simon writes. “Marketers cannot lie: that is not free speech. Thus, if advertising to small children is ‘inherently deceptive’ it cannot be protected under the First Amendment.”
And this is not only Simon’s opinion or interpretation of the law.
Lest you think I am just some crazy activist lawyer who’s making up her own legal theories, I am not alone. In 2005, I coordinated a legal symposium on food marketing to children. Angela Campbell, professor of law at Georgetown University Law Center, wrote a compelling article in which she called on Congress to prohibit product placement and cartoon characters to market junk food to children. She argued that the First Amendment would not be a barrier to such a law because it does not protect deceptive marketing.
Last year, Jennifer Pomeranz, director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, published an article making a similar argument calling on theFederal Trade Commission to protect children from food marketing.
Furthermore, when it comes to the recent McDonald’s case, while parents get to decide if they buy the Happy Meal or not, the fact remains that McDonald’s is committing a crime by marketing to adults. “Just because it’s possible for a parent to intervene doesn’t change the fact that what McDonald’s is doing is illegal,” Steve Gardner, litigation director at the Center for Science in the Public Interest and architect of the recent Happy Meal lawsuit says.
Photo Credit: Stéfan via flickr