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First Amendment Implications of Restricting Food and Beverage Marketing in Schools

Public Health Law & Policy (PHLP), Public Health Institute, in Oakland, California

This article explores how the First Amendment bears upon a school district policy restricting junk food and soda marketing in public schools. The article highlights a clash between two fundamental American beliefs: that a public school should be a sheltered training ground for democratic citizenship and that the strength of the free market economy is dependent upon corporate access to consumers including children. The article begins by describing the "commercial speech doctrine," which explains why the First Amendment might be implicated in a school district advertising policy. The article then touches on actions a school district might take without involving the First Amendment. Next, the article distinguishes between two First Amendment standards of review that a court could apply to a school district advertising policy and argues that a "forum analysis" is the appropriate approach. The article identifies three types of advertising policies that should survive a forum analysis.

Key Words: First Amendment • commercial speech • in-school advertising • marketing to children • commercialization of childhood • obesity • nutrition • junk food and soda

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