Chamber of Commerce assails proposed food marketing restrictions

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"What they're doing is trying to simultaneously ... suppress speech, while insulating it from judicial review," said Northwestern law Professor Martin Redish, one of the panelists at a Chamber of Commerce discussion Thursday. "Because if these regulations were truly just advisory, there would be no case or controversy."

The reality, he said, is that they could have a chilling effect on commercial speech, for several reasons:

• Regulators' control over the food industry;

• Reputational damage for companies that don't comply;

• Pressure on media outlets not to carry the advertising; and

• The heightened risk of class-action lawsuits.

"Industry's rights are being violated here," Redish said, "but there's something deeper and darker that's going on: The government is treating us like sheep."

While constrained to commercial speech, Redish said that attitude has broader implications. People, he said, "can't be sheep in the commercial realm and then all of a sudden, in the political realm, they're free-thinking adults who can make basic choices."

Other speakers raised concerns with the guidelines' usefulness.

Beth Johnson, a former nutritionist at the Department of Agriculture who's now a consultant, pointed out that the proposed nutritional guidelines are stricter than several other federal guidelines — including the latest school meal standards. She said only three of 15 recipes that were finalists in a recent USDA "Recipes for Healthy Kids" contest could be marketed to children under the proposal.

"How do you motivate changes in the food supply?" Johnson said. "With guidelines like this, what they're basically saying is, 'If you don't change it on our timeframe, you can't do something.' Well, that's all good, with the exception that the consumer may not eat it."

And George Washington University Professor Howard Beales said the proposal has real costs but speculative benefits. Similar advertising restrictions in Quebec, he said, led to higher prices for children's cereals, while market share for non-established brands was 38 percent lower than in the rest of Canada as a result.

"If you cannot talk about the product," he said, "there's no reason to [improve] the product."