happy mealCould advertising law turn McDonald’s smile upside-down? Image: Jason WhittakerWhen it comes to food, everybody’s got an opinion. Same goes for parenting. Mix the two together and you’ve got the makings of a culture war. Witness the recent scuffle between Sarah Palin and Michelle Obama over the White House’s rather tame Let’s Move campaign aimed at ending childhood obesity.

So last month, when the Center for Science in the Public Interest announced it was filing a class action lawsuit to stop McDonald’s from using Happy Meal toys to market to children, the fierce and ugly backlash against the mother of two who was brave enough to attach her name to the case was predictable.

But I am not interested in debating good or bad parenting. Nor am I interested in arguing over whether this lawsuit is a good idea. How many calories are in a Happy Meal and whether you can ask for carrots instead of fries is irrelevant to me. I am not even going to give you all the scary data about how America’s kids are getting fatter and sicker. Nor do I care whether the cause is fast food or video games.

That’s all been done. Instead, let’s talk law. Because that minor detail seems to have eluded most of the national conversation about how food companies market to children.

Our legal system does not allow marketers to advertise just as they wish, either to children or adults. We have consumer protection laws because marketers aren’t exactly trustworthy. From time to time, they’ve been known to stretch the truth.

That’s why both at the federal and state levels, the law requires that advertisers not engage in deceptive marketing. Otherwise, they would have an unfair advantage over consumers. In other words, the law aims to provide a level playing field between the two parties. The key legal terms here are “deceptive” and “unfair.” Bear with me; I am saving you three years of law school and a grueling bar exam, not to mention years of debt.

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, if advertising to young children is inherently deceptive, and deceptive advertising is illegal under federal law and in most states, how is it even happening? And doesn’t this mean that not just food, but all marketing to young children is currently illegal? I get this question a lot. The answer is yes.

It may seem unsettling to imagine so much illegal activity going on every single day, but it’s really not that unusual. The marketplace is chock-full of deceptive advertising that goes unchallenged — aimed at both adults and children. It’s the reality of a free marketplace and a government that lacks both the political will and resources to properly enforce the law. That’s why we sometimes need lawsuits to fill the void left by government agencies.

Now I am sure you legal eagles are just waiting to throw the First Amendment in my face. You’re thinking, but doesn’t free speech protect McDonald’s right to advertise? Yes and no. When it comes to kids, mostly no.

While the food industry likes to wrap itself in the Constitution, the truth is that the free speech clause under the First Amendment is not a blank check to advertise anywhere, anytime, or to anybody. Free speech protection must be balanced against other considerations, such as deceptive advertising. We have plenty of examples of the federal government stepping in to stop shady marketing claims, such as skin patches causing weight loss. 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.

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 the Federal Trade Commission to protect children from food marketing.

But if you still think that protecting kids is all up to parents because they are actually purchasing the Happy Meals, I asked Steve Gardner, litigation director at the Center for Science in the Public Interest and architect of the lawsuit, to respond to this argument.

His answer was simple and elegant: “Just because it’s possible for a parent to intervene doesn’t change the fact that what McDonald’s is doing is illegal.” In other words, there are often many ways that parents can act to protect their children but that doesn’t make it OK for others to break the law.

And that is exactly what McDonald’s is doing, until someone stops them.