Directly Regulating Conduct

Recall the discussion of the commercial speech doctrine in Chapter 7. Although it is quite difficult for the government to restrict speech, it can regulate conduct much more easily. In the 2001 case of Lorillard v. Reilly, in addition to advertising restrictions, Massachusetts banned self-service tobacco displays to require that “tobacco products be placed out of the reach of all consumers in a location accessible only to salespersons.”^[1] The regulations’ stated purpose was to minimize customer access without proper age verification to prevent minors from obtaining tobacco products. The Court assumed that the tobacco companies that challenged the law had “a cognizable speech interest in a particular means of displaying their products,” but it found the regulations withstood First Amendment scrutiny.^[2] The Court differentiated between a regulation that restricts speech and one that regulates conduct. It sustained the regulations stating that, “Massachusetts’ sales practices provisions regulate conduct that may have a communicative component, but Massachusetts seeks to regulate the placement of tobacco products for reasons unrelated to the communication of ideas.”^[3] Because the regulation of the location of product displays was found to be a restriction of conduct and not the suppression of speech, the restriction fell out from under the purview of the commercial speech doctrine and thus was not subject to the Central Hudson test. Rather, the Court looked to a different analytical framework for restrictions on “expressive conduct.”

“Expressive conduct” is behavior that has a communicative component. For example, flag burning to protest a war is considered expressive conduct.^[4] On the other hand, conduct that must be accompanied by speech to explain its meaning is not expressive. The government may regulate expressive conduct as long as it furthers an important or substantial government interest and any incidental restriction on communications is no greater than necessary.^[5] The government must also leave open “alternative avenues for vendors to convey information about products and for would-be customers to inspect products before purchase.”^[2] In Lorillard v. Reilly, the Court assumed for purposes of the case that there was an expressive component to displaying the tobacco products in a certain manner; however, Massachusetts was regulating conduct to prevent minors from obtaining tobacco. The Court noted that it presumed the law permitted retailers to display empty boxes for customers to inspect because the restriction was not intended to shield youth from the product packaging but rather from being able to obtain tobacco products themselves.^[3] Therefore, the Court upheld the restriction. The lesson is that the government can regulate the placement of products for reasons unrelated to the suppression of expression consistent with the First Amendment.^[8]

In commercial speech cases, the Court not infrequently recommends various conduct-regulations as constitutionally viable alternatives to the restriction of speech. Thus, numerous non-speech-restrictive avenues for regulation exist. For example, in 44 Liquormart v. Rhode Island, the state sought to prohibit the advertisement ofretail prices of alcoholic beverages. The state asserted an interest in reducing alcohol consumption, but the Court disapproved of bans on truthful advertising that sought “to keep people in the dark for what the government perceives to be their own good.”^[9] The Court struck down the regulation as violating the commercial speakers’ First Amendment rights and suggested alternative forms of regulation that would not involve any restriction on speech but would likely achieve the state’s goal of promoting “temperance:”

[H]igher prices can be maintained either by direct regulation or by increased taxation. Per capita purchases could be limited as is the case with prescription drugs. Even educational campaigns focused on the problems of excessive, or even moderate, drinking might prove to be more effective.^[10]

Additional suggestions made by the Court or members of the Court in separate opinions include: limiting the quantity of a harmful ingredient permitted in the food or beverages,^[11] banning the product,^[12] or prohibiting its purchase, possession, or use by minors.^[13]

State and local governments have attempted to address the food environment by enacting some of the aforementioned suggested regulations of conduct. Price increases and educational campaigns will be discussed below. There has not been an attempt to restrict the per capita purchase of food products. However, several jurisdictions including New York City,^[14] Philadelphia,^[15] and California^[16] passed a ban on the use of trans fat (from partially hydrogenated oils) as an ingredient in foods served in food service establishments and mobile food vending units. (These bans occurred prior to the FDA’s trans fat regulation discussed in Chapter 5.)

It is rare for the government to ban a food item or to enact age limits on minors’ purchase or use of products outside of alcohol and tobacco. However, in the context of energy drinks, state and local governments have been stepping in to protect their citizens. Energy drinks are marketed as producing increased energy in consumers through the addition of caffeine, sugar, and novel ingredients not typically found in other beverages.^[17] They have been blamed for health problems, spikes in emergency room visits, and death in children.^[18] The FDA has not directly regulated energy drinks or the amount of caffeine permitted in them. One county in New York banned the sale of energy drinks in county parks to youth younger than 18 years,^[19] ^[20] ^[21] and several state legislators have proposed bills to prohibit their sale to minors in their states.^55,56 Other products, namely caffeinated alcoholic drinks, are a mix between alcoholic beverages and energy drinks. Some states, including Washington and Michigan, banned these products outright for sale in their state, while other states negotiated with manufacturers to halt sales in their state.^[22] After these state-level actions, the FDA sent Warning Letters to manufacturers warning them that the addition of caffeine to alcohol was an “unsafe food additive,” and thus the products were adulterated.^[23]

Cities have experimented with other regulations of conduct more or less successfully. New York City unsuccessfully passed a cap on the serving size of sugary beverages sold in the city’s food retail establishments; this is discussed in Box 9.1. Two cities in California placed a restriction on toys provided with children’s meals. In 2010, Santa Clara, California was the first location to prohibit the distribution of a toy with food and beverages that did not meet specified minimum nutrition standards.^[24] One year later, San Francisco enacted a Healthy Food Incentive Ordinance with the same intent. In order to bypass the San Francisco ordinance, however, McDonald’s began selling the toy with its Happy Meals for ten cents.^[25] Jack in the Box ceased providing toys with its kids’ meals around this time, although it said its decision was not in response to the ordinance but rather part of an effort to increase the healthfulness of its products.^[26] ^[27] ^[28] There was negative media backlash from these efforts and other municipalities have not followed suit.

[1] Lorillard v. Reilly, 533 U.S. 525, 567 (2001).
[2] Lorillard v. Reilly, 533 U.S. 525, 569 (2001).
[3] Lorillard v. Reilly, 533 U.S. 525, 570 (2001).
[4] Spence v. Washington, 418 U.S. 405 (1974).
[5] United States v. O’Brien, 391 U.S. 367 (1968).
[6] Lorillard v. Reilly, 533 U.S. 525, 569 (2001).
[7] Lorillard v. Reilly, 533 U.S. 525, 570 (2001).
[8] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 569-570 (2001).
[9] 44 Liquormart v. Rhode Island, 517 U.S. 484, 503 (1996).
[10] 44 Liquormart v. Rhode Island, 517 U.S. 484, 507.
[11] Rubin v. Coors Brewing Co., 514 U.S. 476, 490-491 (1995).
[12] 44 Liquormart, 517 U.S. at 524 (Justice Thomas, concurring in part and concurring injudgment).
[13] Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 586 (2001) (Justice Thomas, concurring in partand concurring in the judgment).
[14] New York City Department of Health and Mental Hygiene. The Regulation to PhaseOut Artificial Trans Fat. February 2007. http://www.nyc.gov/html/doh/downloads/pdf/cardio/cardio-transfat-bro.pdf
[15] Philadelphia. Trans fat information packet. December 2007. http://www.phila.gov/health/pdfs/Trans_Fat.pdf
[16] California. Trans Fat Ban Guidelines. January 2010. https://www.acgov.org/aceh/docu-ments/TransFatBanGuidelines20i0-0i-07.pdf
[17] J. L. Pomeranz, C. Munsell, and J. L. Harris. Energy Drinks: An Emerging Public HealthHazard for Youth. Journal of Public Health Policy. 20i3;34(2):254-27i.
[18] Daniel J. DeNoon. FDA: 5 Death Reports for Monster Energy Drink. WebMD Health News. October 23, 2012. http://www.webmd.com/food-recipes/news/20121023/ death-reports-monster-energy-drink
[19] NY SC Res 1086—Concerning sale of energy drinks to minors
[20] IL HB 2379—Prohibition to sell energy drinks to minors
[21] John Henrehan. Maryland. Considers Banning Sale of Energy Drinks to Minors. FoxDC News. March 7, 2014. http://www.myfoxdc.com/story/24914384/maryland-to-consider-banning-energy-drinks-sales-to-minors
[22] Angela Carter. New Haven Register. November 16, 2010. http://www.nhreg- ister.com/general-news/20101116/updated-alcohol-laced-energy-drinks-including-four-loko-to-fade-from-conn-store-shelves
[23] Food and Drug Administration. Public Health Focus. Update on Caffeinated AlcoholicBeverages. http://www.fda.gov/NewsEvents/PublicHealthFocus/ucm234900.htm
[24] Justin Berton. Santa Clara County says no to fast-food toys. SF Gate. April 28, 2010. http://www.sfgate.com/bayarea/article/Santa-Clara-County-says-no-to-fast-food-toys-3266181.php
[25] San Francisco Happy Meal Toy Ban Takes Effect, Sidestepped By McDonald’s. HuffingtonPost. November 30, 2011. http://www.huffingtonpost.com/2011/11/30/san-francisco-happy-meal-ban_n_1121186.html
[26] Anika Anand. Jack in the Box Stops Offering Toys in Kids’ Meal. NBC News. 6/21/2011.http://www.nbcnews.com/id/43483446/ns/business-retail/t/jack-box-stop-offering-toys-kids-meals/#.U9EHEkCuCi1
[27] Adam Drewnowski, The Cost of US Foods as Related to Their Nutritive Value. 92 AmericanJournal of Clinical Nutrition. 2010; 1181, 1187.
[28] K. D. Brownell and K. R. Frieden. Ounces of Prevention—The Public Policy Case for Taxeson Sugared Beverages. New England Journal of Medicine. 2009;360(18):1805-1808.