Sound harsh? After our latest check-in with everyone's favorite anti-pleasure nutritionist, we think it's completely appropriate. Marion Nestle published an article on her blog today quoting a law professor named Timothy Lytton, who insists that trampling on anyone’s First Amendment rights is a no-no. That prompted Nestle and fellow obesity warrior Dr. David Ludwig to fire off an astonishing letter. Here's an excerpt:
The founding fathers clearly intended the First Amendment to guarantee the right of individuals to speak freely about religious and political matters, not the right of food companies to market junk foods to children and adults. Laws are subject to reinterpretation and change, as the history of civil rights legislation makes clear …
We think the time has come for major legal challenges to the right of corporations to mislead the public on the grounds of free speech. The front-of-package health claims controversy demands immediate attention. We hope that legal scholars will examine current food marketing practices in the light of the First Amendment and establish a firm legal basis for bringing this issue back to court. Lytton’s arguments make the need for such reconsideration perfectly evident.
Nestle is simply building on one of her existing themes. Earlier this year, Nestle and Ludwig penned a piece for JAMA (The Journal of the American Medical Association) titled "Front-of-Package Food Labels: Public Health or Propaganda?" Not surprisingly, they decided it was propaganda, and contended that labels on the front of food packages are misleading when they advertise health benefits.
Nestle and Ludwig concluded with this alarming call-to-arms:
One remaining issue is the First Amendment. In its 1985 petition, Kellogg argued that First Amendment guarantees of commercial free speech establish companies’ rights to make health claims. Although the courts seem to have interpreted the Amendment in this manner, the issue warrants reconsideration in light of current marketing practices.
Marion Nestle is actually arguing that businesses don't have the right to free speech regarding their own products. And it seems (in her world, anyway) that anyone in the government who interprets the First Amendment differently must just be biased, or in a desperate search for a way to put a fast food restaurant in every preschool. Or something.
"We are not lawyers," Nestle concedes in the letter. No kidding. The recent Citizens United case made it clear that businesses enjoy the same constitutional rights as individuals. After all, what is a corporation but a collection of individuals who own shares of stock in the same venture? Surely Nestle wouldn't argue that people don't have First Amendment rights simply because they work for a business she doesn't like.
And for Nestle, not all labels are created equal. When it comes to genetically modified foods, Nestle thinks everything GM should be marked with a label. "The public wants the right to choose," she writes. "The public should have the right to choose." It certainly wouldn't surprise us if she supported “absence” labels on food as well, such as “HFCS-free,” “no antibiotics,” or “no hormones.” Some companies make millions marketing those messages, even though they’re practically meaningless. So Marion the Contrarian really only finds some companies’ food labels problematic.
But rather than let companies tout those health benefits that are perfectly legitimate, Nestle's alternative is a "traffic light" labeling system. Under this scheme, all food packages would be labeled with either a red, yellow, or green traffic light. The myriad pluses and minuses of a given food would be boiled down into just three categories. Does Nestle really hold the average consumer in such low regard that she thinks we need such an overly simplistic system at the grocery store? (Probably.)
At the end of the day, there’s no high-minded Constitutional principle in play here. This is about Marion Nestle attacking businesses she doesn’t like. This is the same professor who delivered a speech at an event sponsored by the “Socialist Conference” of the American Public Health Association. Nestle also addressed the “Socialist Scholars Conference” in 2003.
Here at the Center for Consumer Freedom, we struggle every day with food-activist claims that are flat-out false, from the supposed "dangers" lurking in high-fructose corn syrup to the so-called “health hazards” of mercury traces in fish. But it would never occur to us to demand that food alarmists be stripped of their First Amendment right to … well, to alarm. Nestle ought to be ashamed of herself, and she should apologize for even suggesting that there’s a First Amendment for Me, but Not for Thee.
