March 30 2012

Food and the Constitution

Julie Gunlock

Mark Bittman--food writer, New York Times opinion columnist, cookbook author, celebrity chef (of moderate talent), world traveler, annoying food nanny.  Now he can add constitutional scholar to his long list of accomplishments. 

Whatta guy! Forget that dude in the Dos Equis commercials; Mark Bittman is the most interesting man in the world!

Clearly in an effort to resurrect the government's interest in regulating food marketing to children (which I've written about previously here and here), Bittman dedicated his Times column this week to the question of whether the food industry has the constitutional right to advertise food under the First Amendment. 

For Bittman, the answer is an enthusiastic no.  In fact, he doesn’t think much of the First Amendment…or the Constitution, for that matter.  But that’s okay, sweeping aside the Constitution is perfectly acceptable…if you’re doing it for the good of the children. 

The First Amendment to the Constitution, which tops our Bill of Rights, guarantees — theoretically, at least — things we all care about. So much is here: freedom of religion, of the press, of speech, the right to assemble and more. Yet it’s stealthily and incredibly being invoked to safeguard the nearly unimpeded “right” of a handful of powerful corporations to market junk food to children.

Theoretically?  Later in his column, he warns us that when considering policies that benefit children, we mustn't "get lost in the constitution."  Thanks Bittman.  You’re legal analysis is simply amazing.  Why the Obama Administration didn’t retain Bittman for the Supreme Court defense of Obamacare is beyond me.

Look Bittman, we get it...and your point is old and tired. We all have our own issues with the first amendment.  Religious folks don't like it when the porn industry uses the First Amendment's right of free speech to show and distribute porn.  The abortion industry doesn't like pro-life protestors using the First Amendment's right to assemble defense.  I kinda don't like that the whole freedom of the press section allows blowhards like Ed Schulz, Bill Maher and numerous other lefties the freedom to call Republican women sluts and other not-to-be-printed words on national television.  But, you know, that's just how our system works. 

Bittman’s suggestion that we scrap the Constitution in order to protect children might be excused if he actually cared for kids, but I’m not so sure he does.  For instance, in his column, Bittman feigns concern and surprise that the food industry is collecting information on consumers. He complains that it's "beyond worse" that the food industry is "collecting private data, presumably in order to target children with personalized junk food promotions."  Interestingly, Bittman was silent when, in 2010, the Obama Administration pushed through the Healthy and Hunger-free Kids Act which allows governments to poke around in state Medicaid and welfare records in order to determine which children live under the poverty level so that those children can be automatically enrolled in the school lunch program.  Hmmmm, that seems to me to be a somewhat creepy invasion of privacy. Where was Bittman’s concern for kids’ “private data” being collected back in 2010?

Another thing Bittman conveniently ignores is what the food industry is voluntarily doing "for the children."  For instance, According to Georgetown Economic Services, food advertising during children’s programs declined 50 percent between 2004 and 2010, and 17 of the leading food companies (which represent more than three-quarters of the products advertised to children under twelve) have pledged in the Children’s Food and Beverage Advertising Initiative to advertise only healthy foods.

Instead of highlighting these things, Bittman chooses to lash out at the food industry for (understandably) lobbying against regulations that would prevent them from advertising their products.  He criticizes the food industry’s lobbying organization—the Sensible Food Policy Coalition--and targets constitutional lawyer Kathleen M. Sullivan in particular for his wrath, saying:

Viacom, a member of the coalition, retained — that means paid — the renowned constitutional law scholar Kathleen M. Sullivan, who wrote that “Government action undertaken with the purpose and predictable effect of curbing truthful speech is de facto regulation and triggers the same First Amendment concerns raised by overt regulation.” On the flip side, an open letter signed by more than three dozen prominent legal scholars (who were not paid) countered that the guidelines “pose no threat to any rights guaranteed by the First Amendment.”

First, I love how Bittman can’t help reveal his hard-left tendencies with his snide remark “that means paid.” Yes, Bittman, lawyers are usually paid for their work, as are columnists for their writing (even if it stinks!).  Secondly, as I wrote in this post, the three dozen lawyers to which Bittman enthusiastically refers as supporting these marketing regulations defended the regs on the basis that the government would be issuing “voluntary nutrition principles”— which the industry would be “free to ignore.”

Oh, those lawyers are so cute and gullible.  Yeah, ignoring government’s “suggestions” to self-regulate usually works out really well for business.  Bruce Fein reacted to this “free to ignore” myth by explaining how the world really works:

As we have learned through experience, voluntary guidelines promulgated by government regulators are indistinguishable from government mandates that should be constrained by the United States Constitution. The regulatory weapons that may be employed covertly as retaliation against the recalcitrant make industry compliance with guidelines no more voluntary than yielding a wallet to a highwayman

Lastly, while Bittman likes to take a swipe at big, bad corporate lawyer Kathleen M. Sullivan, he conveniently fails to mention that former Obama staffer Anita Dunn actually helped set-up the Sensible Food Coalition.  But it's perfectly acceptable to leave out that Obama official when you have a handy Republican standing by to take the blame.

Bittman's going to keep beating this drum; telling Americans they need the government to step in and protect them and their children from potato chip commercials. But reasonable people know that there’s a better way to regulate the advertisements kids see on television: Parents wielding a remote control. 

It’s called the “off” button, Bittman. 

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