Restricting Unhealthful Food Advertising to Children and the First Amendment

In their recent article, Harris and Graff describe ways that local governments can restrict the marketing of unhealthful food to children, including limiting store displays and banning commercial billboards (1). The authors state that “to avoid potential First Amendment violations, the [policies] should apply to all signs no matter the message and should be based on non–speech-related considerations such as minimizing visual clutter” or “traffic safety or esthetics” (1). However, instead of veiling the true intent of such restrictions with stated rationales of minimizing clutter and preserving esthetics, local governments could make the argument that these policies are a legitimate exercise of their police power and would pass the Central Hudson test (2).