REGULATING THE MARKETING OF FOODS TO MINORS

STEVEN R. SALBU*

I. INTRODUCTION

The world is facing nutrition challenges that pit individual rights against
public health. Should individual rights always be paramount, or should we
sometimes sacrifice unfettered commercial freedom in the interest of the public
good? This Article examines one pressing public health issue: should we regulate
food marketing in the interest of good diet and nutrition for minors?

The issue has become a critical one as poor nutrition and obesity among
minors increasingly threaten their health.1 Adverse outcomes from childhood
obesity include type-2 diabetes, metabolic syndrome, Blount’s disease,
dyslipidemia, hypertension, left ventricular hypertrophy, atherosclerosis,
depression, poor quality of life, pseudotumor cerebri, nonalcoholic fatty liver
disease, nonalcoholic steatohepatitis, obstructive sleep apnea, renal proteinuria,
and exacerbation of asthma.2 Particularly troubling are the growing incidence of
type-2 diabetes among minors, disproportionately affecting minority groups.3

While regulatory protection of minors does not seem controversial, such
intervention reflects a more expansive notion of public health than was originally
embraced in the United States. Early conceptions of public health were narrow,
addressing communicable diseases, sanitation, and safety.4 Over the years, the
notion of public health has broadened, encompassing “what we, as a society, do
collectively to assure the conditions for people to be healthy.”5

These narrow and broad conceptions of public health bring with them the
question, should public health initiatives be limited to the protection of
individuals from publicly generated perils? Or should public health also aim to
improve the wellbeing of the population more broadly, even when the risk is
subject to individual personal choices, as in the case of diet and nutrition?

By publicly generated perils, I am referring to the health risks one faces from

* Professor and Cecil B. Day Chair in Law and Ethics, Georgia Institute of Technology.

B.A., Hofstra University; M.A., Dartmouth College; J.D., College of William & Mary; M.A.,

Ph.D., The Wharton School of the University of Pennsylvania.

1. See Stephen R. Daniels et al., Overweight in Children and Adolescents: Pathophysiology,

Consequences, Prevention, and Treatment, 111 CIRCULATION 1999, 1999 (2005).

2. Id. at 2002.

3. See Dana Dabelea et al., Prevalence of Type I and Type II Diabetes Among Children and

Adolescents From 2001 to 2009, 311 JAMA 1778, 1779 (2014) (“Type 2 diabetes is increasingly

diagnosed in youth and now accounts for 20% to 50% of new-onset diabetes case patients,

disproportionately affecting minority race/ethnic groups. Although few longitudinal studies have

been conducted, it has been suggested that the increase in type 2 diabetes in youth is a result of an

increase in the frequency of obesity in pediatric populations.”).

4. Lawrence O. Gostin & James G. Hodge, Jr., The Public Health Improvement Process in

Alaska: Toward a Model Public Health Law, 17 ALASKA L. REV. 77, 84 (2000).

5. COMM. FOR THE STUDY OF THE FUTURE OF PUB. HEALTH, THE FUTURE OF PUBLIC HEALTH

19 (1988).



302 INDIANA HEALTH LAW REVIEW [Vol. 20:301

our exposure to others as well as their behaviors. For example, a person catches
a communicable disease from an infected person. Similarly, sanitation and safety-
related health risks often are created by, and under the control of, persons other
than the individuals being protected, and therefore have been readily subject to
public health controls. Human waste disposal can generate disease that public
health initiatives such as sewage and garbage treatment aim to counter.   Smokers
generate second-hand smoke, threatening the health of others around them,6 so
that regulation of smoking fits comfortably in the framework of counteracting
publicly generated perils. Conversely, the dietary habits of minors do not create
a direct health threat to those around them,7 and they are usually considered to be
the choice of the individual and the individual’s family.8

Regulation to protect minors from questionable food marketing practices
seeks to protect children who, while subject to parental guidance and control,
nonetheless voluntarily consume the food they eat. It goes beyond the original
conception of public health—it aims to protect minors and their families from
their own consumption choices, rather than from externally created dangers like
public sewage, over which they have no control.9

Such expansive public health regulation is susceptible to critiques of invading
personal freedom and government overreaching.10 Nutrition and diet are examples
which Harvey identifies as part of the “new frontier” of public health
interventions that are prone to public resistance.11

Notwithstanding criticism, the notion of public health initiatives has
expanded, at least among academics in the field, to include protecting us from our
own individual actions, decisions, and choices. The Association of Schools &
Programs of Public Health lists a very broad range of areas that are now included

6. See Health Effects of Secondhand Smoke, CTR. FOR DISEASE CONTROL & PREVENTION,

https://www.cdc.gov/tobacco/secondhand-smoke/health.html [https://perma.cc/Q9RG-MUFC] (last

updated Nov. 1, 2022).

7. Children with poor diets are likely to suffer, but they do not generate health threats to

their neighbors in the form of something analogous to disease-breeding garbage or second-hand

smoke.

8. The conception of dietary decisions as individual choices has limitations. First, I mention

families because food choices among children are directly shared by the child and the child’s

guardians and providers, who purchase and provide meals. Second, many believe that individual

dietary choices are affected by a wide array of external factors, anything from chemicals and

pesticides, which may affect hormones related to hunger and satiety, to corporate and school

practices and decisions that influence what children eat.

9. Laws and regulations already protect minors in extreme cases should their own parents

be grossly neglectful in guarding children’s basic welfare. Parents can lose custody of their own

children when the well-being of those children is endangered. In the absence of dangerously

irresponsible parenting, our culture in the U.S. tends to defer to parental prerogative in child-

rearing, emphasizing personal, individual freedoms over government intervention.

10. See infra notes 129-33 and accompanying text.

11. Hosea H. Harvey, Nudging the Public Health: The Political Psychology of Public Health

Law Intervention, 65 DEPAUL L. REV. 57, 67 (2015).



2023] REGULATING THE MARKETING OF FOOD TO MINORS 303

in the expanded conception of the term.12 For better or worse, an examination of
the listed categories indicates that, at least in academic theory, the field of public
health has expanded to cover all conceivable areas related to the health of the
public in general.13

To summarize, the earliest areas of public health policy—communicable
disease, sanitation, and safety14—are less controversial drivers of governmental
and social interventions, because all three can be framed as serious external
threats to individuals that, if not managed, can cause harm, injury, or death. As
perils created by others, they are persuasively and easily framed as the kinds of
harms against which the laws have always sought to protect innocent victims. We
tend to be most receptive to legal and regulatory protections in these kinds of
situations, where behavior or activity beyond our individual control threatens us.15

This Article explores the notion of a more aggressive, controversial class of
regulatory and social policy public health initiatives aimed at changing what and
how we eat. It recommends areas of government regulation, and other areas to be
left to industry self-regulation. 

II. NUTRITION AS AN INCREASINGLY TROUBLESOME PUBLIC HEALTH ISSUE

Food can be classified as either “core” or “non-core” based on overall
nutritional value.16 Core foods have essential nutrients; non-core foods are

12. All Areas of Study, THIS IS PUB. HEALTH, https://www.aspph.org/study/all-areas-of-study/

[https://perma.cc/WW5Z-LQLP] (last visited Mar. 19, 2023). 

13. See id. These listed categories are aging, biomedical lab sciences, chronic disease, clinical

research, communication sciences and disorders, community health, dental public health,

environmental health, epidemiology, exercise science, food safety, genetics, global health, health

administration, health economics/ finance, health education/behavioral sciences, health law, health

promotion and communications, health services research, immunology, infectious diseases,

informatics, injury/violence, management and health policy, maternal and child health, mental

health, minority health and health disparities, multicultural studies, neuroscience, nutrition/public

health nutrition, occupational health/industrial hygiene, parasitology, population and reproductive

health, population sciences, preparedness response and recovery, public health ethics, public health

leadership, public health medicine, public health policy &  practice, risk assessment, social

determinants of health, substance use/harm reduction, toxicology, tropical medicine, veterinary

public health, and women’s health. 

14. See supra note 4 and accompanying text.

15. Regulations to protect data privacy are a good example of this. Discussion of such

regulatory efforts frequently refers to the need to protect individuals from incursions by outsiders.

Protection of individuals from privacy incursions by drone operators is just one subcategory. For

discussion of this example, see Toban Platt, The Drone Wars: The Need for Federal Protection of

Individual Privacy, 13 WASH. J. L. TECH. & ARTS 27, 27 (2017).

16. Zoi Toumpakari et al., Adolescents’ Non-Core Food Intake: A Description of What,

Where, and with Whom Adolescents Consume Non-Core Foods, 19 PUB. HEALTH NUTRITION 1645,

1645 (2016).

https://www.aspph.org/study/all-areas-of-study/


304 INDIANA HEALTH LAW REVIEW [Vol. 20:301

considered surplus to nutritional requirements and are high in fat and sugar.17

While “surplus” may sound benign, it is not—foods that are high in bad fats and
sugar and low in nutrients contribute to poor health.18 Non-core foods have been
found to comprise roughly half of the total fat and sugar in the diets of minors
aged two through eighteen, and the proportion increases over the course of that
age range.19

According to the U.S. Healthful Food Council, “American adults on average
purchase meals or snacks from fast[]food restaurants almost six times a week, and
close to a third of children eat fast food every single day.”20 High intake of the
non-nutritious foods often sold by fast food restaurants has been linked to
increasing childhood obesity and declining childhood health and fitness.21 The
incidence of childhood and adolescent overweight has been rising,22 and obesity
has been linked to debilitating diseases like heart disease, type-2 diabetes, and
cancer,23 as well as hypertension, arthritis, Alzheimer’s disease, dementia, and
infant mortality.24 Obesity also is associated with “significant increases in
morbidity and mortality from COVID-19.”25 Given that risks of death from
COVID-19 rise very substantially with age,26 these issues strongly affect adults

17. Id.

18. See Adam Drewnowski, Commentary, Concept of a Nutritious Food: Toward a Nutrient

Density Score, 82 AM. J. CLINICAL NUTRITION 721, 721 (2005) (“Rising rates of obesity and type

2 diabetes in the United States continue to be linked to a growing consumption of refined grains

(1), added sugars (2), and added fats (3).”).

19. See Toumpakari et al., supra note 16.

20. Joseph Higgins, Comment, Everything is Bigger in Texas: The Growing Problem of

Childhood Obesity in Texas and How to Combat It, 17 TEX. TECH. ADMIN. L.J. 303, 307 (2016)

(quoting Press Release, United Nations Int’l Child. Emergency Fund, Poor Diets Damaging

Children’s Health Worldwide, Warns UNICEF (Oct. 8, 2019), https://www.unicef.org/eca/press-

releases/poor-diets-damaging-childrens-health-worldwide-warns-unicef) [https://perma.cc/N5MB-

32UE].

21. See Press Release, United Nations Int’l Children’s Emergency Fund, Poor Diets

Damaging Children’s Health Worldwide, Warns UNICEF (Oct. 8, 2019), https://www.unicef.

org/eca/press-releases/poor-diets-damaging-childrens-health-worldwide-warns-unicef

[https://perma.cc/N5MB-32UE] (noting one-third of children under five are either undernourished

or overweight, and attributing their declining health and growing obesity in part to growing access

to fast food and sweetened drinks).

22. Richard P. Troiano et al., Overweight Prevalence and Trends for Children and

Adolescents, 149 ARCH. CH. PEDIATRIC ADOLESCENCE MED. 1085 (1995).

23. Weight Problems Take a Hefty Toll on Body and Mind, HARV. T.H. CHAN. SCH. PUB.

HEALTH, https://www.hsph.harvard.edu/obesity-prevention-source/obesity-consequences/health-

effects/ [https://perma.cc/C6MD-D2XV] (last visited Feb. 15, 2023). 

24. Paul A. Diller, Combating Obesity with a Right to Nutrition, 101 GEO. L.J. 969, 981

(2013) (citation omitted).

25. Barry M. Popkin et al., Individuals with Obesity and COVID-19: A Global Perspective

on the Epidemiology and Biological Relationships, 21 OBESITY REV. 1, 1 (2020).

26. See Risk for COVID-19 Infection, Hospitalization, and Death by Age Group, CTR. FOR



2023] REGULATING THE MARKETING OF FOOD TO MINORS 305

as well as children.
That said, childhood is arguably the most critical stage associated with

nutrition and public health:”[o]besity in childhood causes a wide range of serious
complications and increases the risk of premature illness and death later in life,
raising public-health concerns.”27 Moreover, children are still developing and
growing, so the stakes of good nutrition to their bodies and minds are especially
high.28 Children are a vulnerable population: their brains and their minds have not
reached full maturity and cognitive capability,29 as cortical ability becomes fine-
tuned over time.30 And of course, children lack full autonomy and depend on the
judgment and the decisions of their parents.31

While always important, nutrition issues for minors have become even more
critical in recent years. Children in 2023 are susceptible to a diet-related chronic
disease that rarely affected them just a few decades ago: type-2 diabetes.32 Rates
of childhood type-2 diabetes are rising along with rates of childhood obesity.33

DISEASE CONTROL, https://www.cdc.gov/coronavirus/2019-ncov/covid-data/investigations-

discovery/hospitalization-death-by-age.html [https://perma.cc/U3LP-9H5G] (last updated June 2,

2022) (noting that compared to the 18-29 year-old cohort, COVID death rates among 50-64 year

olds are 25 times higher, COVID death rates among 65-74 year olds are 65 times higher, COVID

death rates among 75-84 year olds are 140 times higher, and COVID death rates among 85-and-

above-year olds are 330 times higher).

27. Cara B. Ebbeling et al., Childhood Obesity: Public Health Crisis, Common Sense Cure

360 LANCET 473, 473 (2002).

28. See Francisco J. Rosales et al., Understanding the Role of Nutrition in the Brain of

Toddlers and Preschool Children: Identifying and Addressing Methodological Barriers, 12

NUTRITIONAL NEUROSCIENCE 190 (2009) (discussing the role of nutrition in brain development of

children).

29. See id. (“The preschool years (i.e., 1-5 years of age) is a time of rapid and dramatic

postnatal brain development (i.e., neural plasticity), and of fundamental acquisition of cognitive

development (i.e., working memory, attention and inhibitory control).”).

30. B.J. Casey et al., Imaging the Developing Brain: What Have We Learned About Cognitive

Development, 9 TRENDS IN COGNITIVE SCI. 104, 104 (2005).

31. See J.C. Westman, Children’s Rights, Parents’ Prerogatives, and Society’s Obligations,

29 CHILD PSYCHIATRY HUM. DEV. 315, 315 (1999) (“[P]arents do not need specifically defined

rights. They have prerogatives that flow from the right of their children to nurturing and protective

parenting. The idea of individual rights springs from the vulnerability of human beings in the face

of stronger forces. The most vulnerable individuals are children.”).

32. Stephen R. Daniels et al., Overweight in Children and Adolescents: Pathophysiology,

Consequences, Prevention, and Treatment, 111 CIRCULATION 1999, 2002 (2005) (“Concomitant

with the rise in the prevalence of overweight and the metabolic syndrome has been a dramatic

increase in type 2 diabetes mellitus in youth. Type 2 diabetes mellitus had been primarily a disease

of adulthood; however, type 2 diabetes now occurs in adolescents typically with a BMI 30 kg/m2,

a level that would be considered obese even by adult standards.”).

33. See Shannon Johnson, The Symptoms of Type 2 Diabetes in Children, MED. NEWS

TODAY, https://www.medicalnewstoday.com/articles/322919 [https://perma.cc/P4PU-E4P9]  (last



306 INDIANA HEALTH LAW REVIEW [Vol. 20:301

Moreover, because childhood obesity has been linked to a higher probability of
obesity in adulthood,34 the health costs can be long-lasting and cumulative.35

III. CONCERNS REGARDING MARKETING OF JUNK FOODS TO MINORS

Food industry practices contribute to children’s high intake of junk foods, as
well as the declining health that results from poor eating.36 The industry
recognizes children as a “major market force.”37 According to a 2012 report by
the Federal Trade Commission, food companies spent $1.79 billion marketing to
children and adolescents in 2009.38 Unfortunately, foods targeted to children tend
to be high in calories, sugar, salt, and fat, and low in nutritional value.39

For example, cereals targeted to children are less nutritious and have higher
sugar content than those targeted to adults.40 Studies of promotions targeted to
children identify “moderate to strong evidence that these promotions influence
children’s food preferences, purchase requests, and actual consumption patterns,
to the detriment of children’s diet-related health.”41

Critics contend that children and adolescents deserve protection from food
manufacturers that market less healthful products directly to kids.42 By the mid-

updated Nov. 11, 2020).

34. See Frank M. Biro & Michelle Wien, Childhood Obesity and Adult Morbidities, 91 AM.

J. CLINICAL NUTRITION 1499, 1503 (2010) (“The consequences of childhood and adolescent obesity

include metabolic syndrome and type 2 diabetes in youth and in adulthood and the development

of obesity in adulthood.”).

35. Id.

36. See, e.g., Kaye Mehta et al., Marketing Foods to Children Through Product Packaging:

Prolific, Unhealthy, and Misleading, 15 PUB. HEALTH NUTRITION 1763, 1763 (2012) (“There is

little dispute among public health professionals that the marketing of unhealthy foods and

beverages to children plays a role in the rising prevalence of childhood obesity across the globe.”).

37. Mary Story & Simone French, Food Advertising and Marketing Directed at Children and

Adolescents in the US, 18 INT. J. BEHAV. NUTRITION & PHYSICAL ACTIVITY 205, 205 (2004).

38. Press Release, Fed. Trade Comm’n, FTC Releases Follow-Up Study Detailing

Promotional Activities, Expenditures, and Nutritional Profiles of Food Marketed to Children and

Adolescents (Dec. 21, 2012), https://www.ftc.gov/news-events/press-releases/2012/12/ftc-releases-

follow-study-detailing-promotional-activities [https://perma.cc/4R6L-M6D2]. 

39. Jennifer L. Pomeranz, Extending the Fantasy in the Supermarket: Where Unhealthy Food

Promotions Meet Children and How Government Can Intervene, 9 IND. HEALTH L. REV. 117, 123

(2012).

40. Hayeon Song et al., Marketing Cereal to Children: Content Analysis of Messages on

Children’s and Adult’s Cereal Packages, 38 INT’L J. CONSUMER STUD. 571, 571 (2014).

41. Belinda Reeve & Roger Magnusson, Regulation of Food Advertising to Children in Six

Jurisdictions: A Framework for Analyzing and Improving the Performance of Regulatory

Instruments, 35 ARIZ. J. INT’L & COMP. L. 71, 74 (2018) (citation omitted).

42. See, e.g., Press Release, World Health Org. W. Pac., Regional Action to Protect Children

from Harmful Impact of Food Marketing and Promote Healthy Ageing (Oct. 9, 2019),

https://www.who.int/westernpacific/news/detail/09-10-2019-regional-action-to-protect-children-



2023] REGULATING THE MARKETING OF FOOD TO MINORS 307

1970s, both the Federal Trade Commission and activist groups such as Action for
Children’s Television became vocal in their concerns about advertising aimed at
children.43 More recently, the World Health Organization recommended the use
of “nutrient profiling” to identify foods that companies should not be allowed to
market to children.44 Opponents of such regulation take a freedom-based
“personal choice” stance, arguing that we each are responsible for our own
dietary decisions.45

A 2017 article enumerates issues regarding the marketing of foods to minors:
“whether young people represent a vulnerable audience in need of protection;
how marketers are reaching children in online and social networking
environments; what parents, practitioners, and policy makers can do to help
children contend with these messages; and what the marketing industry can teach
various stakeholders about encouraging protective behaviors in young people.”46

Junk food advertising directed at children;47 use of packaging graphics, toys, and
prizes aimed at children;48 and product placement at children’s eye-levels in

from-harmful-impact-of-food-marketing [https://perma.cc/E5ED-CVAU]. 

43. Deborah R. John, Consumer Socialization of Children: A Retrospective Look at Twenty-

Five Years of Research, 26 J. CONSUMER RSCH. 183, 183 (1999).

44. WORLD HEALTH ORG., NUTRIENT PROFILE MODEL FOR THE MARKETING OF FOOD AND

NON-ALCOHOLIC BEVERAGES TO CHILDREN IN THE WHO EASTERN MEDITERRANEAN REGION 5

(2017), available at https://apps.who.int/iris/bitstream/handle/10665/255260/EMROPUB_2017_

en_19632.pdf;jsession id=596D4C45EA6158EC8EF75E338E071BAC?sequence=1

[https://perma.cc/9D4Q-634R]. Nutrient profiling is defined as “the science of classifying or

ranking foods according to their nutritional composition for reasons related to preventing disease

and promoting health.” Id. (quoting WORLD HEALTH ORG., GUIDING PRINCIPLES AND FRAMEWORK

MANUAL FOR THE DEVELOPMENT OR ADAPTATION OF NUTRIENT PROFILE MODELS page (2019)).

Other organizations around the world have created their own food nutrition classification systems,

and one study found them consistent with the classifications made by seven hundred nutrition

professionals. See Peter Scarborough et al., Testing Nutrient Profile Models Using Data from a

Survey of Nutrition Professionals, 10 PUB. HEALTH NUTRITION 337 (2007).

45. See Andrea Freeman, Comment, Fast Food: Oppression Through Poor Nutrition, 95

CAL. L. REV. 2221, 2223 (2007) (“Too often, advocates of “personal choice” blame low-income

people of color for their own weight issues and health crises, linking these problems to individual

moral and cultural failures instead of placing the problems in the broader, historical context of long-

entrenched policies and practices.”).

46. Matthew H. Lapierre et al., The Effect of Advertising on Children and Adolescents, 140

PEDIATRICS 152, 153 (2017).

47. See The Impact of Food Advertising on Childhood Obesity, AM. PSYCH. ASS’N (Nov. 17,

2010), https://www.apa.org/topics/kids-media/food [https://perma.cc/M753-JAK6] (“Research has

found strong associations between increases in advertising for non-nutritious foods and rates of

childhood obesity. Most children under age 6 cannot distinguish between programming and

advertising and children under age 8 do not understand the persuasive intent of advertising.

Advertising directed at children this young is by its very nature exploitative.”).

48. See, e.g., Jennifer R. Otten, Food Marketing: Using Toys to Market Children’s Meals,



308 INDIANA HEALTH LAW REVIEW [Vol. 20:301

supermarkets49 all have come under scrutiny and criticism.50 The following
Subsections examine these practices.

A. Junk Food Advertising Directed at Children

Researchers and children’s advocates have documented harms from
advertising nutritionally poor foods to children.51 A 2019 article from the
American Journal of Preventive Medicine studied whether television
advertisements directed at pre-school children are associated with consumption
levels of the advertised brands of cereals.52 The authors found exposure to the
advertisements increased intake of the advertised brands, and that “child-directed
advertising influences begin earlier and last longer than previously demonstrated,
highlighting limitations of current industry guidelines regarding the marketing of
high-sugar foods to children under age 6 years.”53

Not surprisingly then, advertising of junk food to children is often cited as a
contributor to childhood obesity.54 And logically, why would companies invest
in advertising nutritionally poor cereals directly to children unless they expect the
investment to increase consumption and sales?

Minors see thousands of advertisements every year for unhealthful foods and
beverages,55 yet young children have not yet developed the ability to view these
ads critically.56 This vulnerability is exacerbated by a particular childhood skill,
“pester power,” defined as children’s “ability to nag their parents into purchasing
items they may not otherwise buy.”57

Is pester power a real thing? Parents have thoughts on this question based on

HEALTH EATING RSCH. (Aug. 2014), http://healthyeatingresearch.org/wp-content/uploads/2014/07/

her_marketing_toys_AUGUST_14.pdf [https://perma.cc/5VF6-J33X] (observing that marketing

of children’s meals using toys has been targeted as a public policy initiative to address childhood

nutrition).

49. See infra note 111.

50. See infra §§ II (A-C).

51. See Rita-Marie C. Reid, Embedded Advertising to Children: A Tactic that Requires a New

Regulatory Approach, 51 AM. BUS. L.J. 721, 722 (2014) (“For decades, researchers and children’s

advocates have decried the ill effects of advertising to children.”).

52. Jennifer A. Emond et al., Exposure to Child-Directed TV Advertising and Preschoolers’

Intake of Advertised Cereals, 56 AM. J. PREVENTIVE MED. 35 (2019).

53. Id.

54. See, e.g., David Burnett, Fast-Food Lawsuits and the Cheeseburger Bill: Critiquing

Congress’s Response to the Obesity Epidemic, 14 VA. J. SOC. POL’Y & L. 357, 360 (2007).

55. Jennifer L. Harris, Demonstrating the Harmful Effects of Food Advertising on Children

and Adolescents, in MEDIA & THE WELL-BEING OF CHILD. & ADOLESCENTS 52, 53 (Amy B. Jordan

& Daniel Romer eds., 2014).

56. Id.

57. How Marketers Target Kids, MEDIA SMARTS, https://mediasmarts.ca/digital-media-

literacy/media-issues/marketing-consumerism/how-marketers-target-kids [https://perma.cc/MR6W-

YHX6] (last visited Mar. 19, 2023). 



2023] REGULATING THE MARKETING OF FOOD TO MINORS 309

their firsthand experiences. The fact that companies shifted their marketing of
children’s brands in supermarkets from children to adults during COVID-19,
when family shopping shifted to just one adult at the store,58 suggests that
manufacturers were marketing directly to the children before that. Because
children do not do the family grocery shopping themselves, the only logical
influence they have on grocery store purchase decisions is through pleas to their
parents.

Despite parents’ ultimate authority, children do affect parents’ food
purchases. One Canadian report concludes that “young people have a very strong
influence on the whole family’s food choices, parents often choosing to abdicate
with regard to healthy eating issues to surrender to the children’s incessant
demands.”59 An American Journal of Law & Medicine article from 2015 notes
that “[s]tudies have long shown that children are not only more susceptible to
marketing than are adolescents and adults, but also that children have the ability
to influence family purchases by nagging and pestering their parents . . . .”60 The
resulting increased consumption of non-nutritious foods can harm children’s
health, both during childhood and in the future.61

Both the World Health Organization and the Food and Agricultural
Organization of the United Nations recognize the heavy marketing of unhealthy
foods and drinks as likely factors contributing to weight gain and obesity.62 The
ramifications are serious: the American Psychological Association frames
childhood obesity as “a serious public health problem that increases morbidity,
mortality, and has substantial long term economic and social costs.”63

58. See Elizabeth Crawford, Without Kids in Stores to Drive Impulse Purchases, Good2Grow

Pivots Marketing to Focus on Parents, FOOD NAVIGATOR USA (May 20, 2020), https://www.

foodnavigator-usa.com/Article/2020/05/20/Without-kids-in-stores-to-drive-impulse-purchases-

good2grow-pivots-marketing-to-focus-on-parents# [https://perma.cc/253H-C64G] (“Children’s

brands that previously relied on ‘the nag factor,’ impulse purchases or being the reward parents give

children to behave in stores are pivoting their marketing to target adults now that most families

send only one adult to the grocery store to limit exposure to the coronavirus.”).

59. Marie- Ève Nadeau, Food Advertising Directed at Children, QUE. COAL. ON WEIGHT-

RELATED PROBS. (Jan. 2011), http://childhoodobesityfoundation.ca/wp-content/uploads/2015/

02/AMorel_food_advertising_directed_at_children.pdf [https://perma.cc/9LWP-BYNL] (citing

JEAN-FRANCSOIS HENRY, MARKETING DE LA MALBOUFFE POUR ENFANTS, RAPPORT FINAL DU PROJET

DE RECHERCHE PRÉSENTÉ AU BUREAU DE LA CONSOMMATION D’INDUSTRIE CANADA 5 (2006)). 

60. Christine Fry et al., What’s in Store: A Vision for Healthier Retail Environments Through

Better Collaboration, 41 AM. J. L. & MED. 331, 338 (2015).

61. Not only is junk food advertising associated with childhood obesity; childhood obesity

rates are associated with adult obesity rates, as well as diabetes, cancer, and cardiovascular disease.

See The Impact of Food Advertising on Childhood Obesity, AM. PSYCH. ASS’N (Nov. 17, 2010),

https://www.apa.org/topics/kids-media/food [https://perma.cc/YK68-SW8X].

62. Benedetta F. Duramy, Childhood Obesity and Positive Obligations: A Child-Rights Based

Approach, 42 SEATTLE U. L. REV. 87, 97 (2018).

63. Id.



310 INDIANA HEALTH LAW REVIEW [Vol. 20:301

B. Food Packaging Issues

Food packaging influences children’s purchase requests,64 and packaged toys
and prizes dominate the marketing of food to children.65 I explore packaging
generically, the use of toys and prizes specifically66 and product placement in
supermarket aisles in this Subsection.

1. Food Packaging Practices that Harm Children

Two common types of packaging practices that harm children are addressed
in subsections (a) and (b) below. These are the direct emotional appeal to children
in design of the package graphics and the deceptive, misleading, or inaccurate
nutrition claims that can mislead parents to over-estimate the nutritional value of
a product. The latter has a negative impact on not only children, but also adults.

a. Direct emotional appeal to children in design of product graphics

Manufacturers attract children to their food products using various packaging
techniques: bright colors, cartoon characters, childish lettering, associations with
play and with fun, and associations with celebrities and sportspersons.67 These
design strategies skew children’s brand associations and taste preferences in favor
of the products perceived as “fun.”68 The resulting brand associations lead
children to prefer such advertised foods, regardless of whether they are
healthful.69 Lavriša and Pravst summarize numerous research findings on this:

It is well established that different child-oriented marketing techniques,

64. Pomeranz, supra note 39, at 132 (citation omitted).

65. See Jennifer R. Otten, Food Marketing: Using Toys to Market Children’s Meals,

HEALTHY EATING RSCH. (Aug. 2014), http://healthyeatingresearch.org/wp-content/uploads/2014/

07/her_marketing_toys_AUGUST_14.pdf [https://perma.cc/2PQM-X54Y] (“For restaurants,

including toys with children’s meals is the leading form of food marketing directed at children by

expenditure.”).

66. Toys and prizes are combined into one category, because they have not been clearly

distinguished and reflect the same phenomenon. Sometimes the inexpensive inserts for children are

identified by critics as toys and sometimes as prizes. As the toys by their nature are insubstantial

and low-cost gratuities, they can equally accurately be categorized as prizes, such as were

classically and historically included in boxes of Cracker Jack, or as prizes. See Karen Knapstein,

Cracker Jack: A Prize Collection That’s a Treat for the Ages, ANTIQUES TRADER (Oct. 4, 2016),

https://www.antiquetrader.com/collectibles/cracker-jack-prize-collecting-treat-for-ages

[https://perma.cc/E6Y3-9GTC] (documenting that Cracker Jack identified its inserts as prizes from

1912-1925, as novelties from 1925-1932, and as toys from 1932 forward). 

67. Živa Lavriša & Igor Pravst, Marketing of Foods to Children Through Food Packaging

is Almost Exclusively Linked to Unhealthy Foods, 11 NUTRIENTS 1128, 1129 (2019).

68. Id.

69. Id. at 1128.

https://www.ncbi.nlm.nih.gov/pubmed/?term=Lavri%26%23x00161%3Ba%20%26%23x0017d%3B


2023] REGULATING THE MARKETING OF FOOD TO MINORS 311

such as the use of cartoon characters and similar elements on food
packaging, significantly influence children’s food choices and
preferences. By using such child-oriented marketing techniques, children
are encouraged to like and want products which they see as “fun” and
“good tasting[.]” When foods are accompanied with children-familiar
characters, children are convinced it tastes and looks better and would
more likely ask their parents to buy it for them.70

Of course, one should expect companies to advertise their products, and it is
not surprising that they focus their advertising using images that directly connect
with customers, whatever their age. Society accepts advertising as a commercial
practice; it becomes questionable when aimed at a population, like minors, who
are vulnerable and lack the fully mature cognitive capabilities to process the
advertising responsibly.71

The problem is exacerbated when companies add deception to this equation.
Advertisements targeting children with familiar characters are often deceptive
regarding health claims. A 2013 study found that “[n]early three quarters (73%)
of food ads targeting children use a familiar character. Most of these ads (72%)
promote foods of low nutritional quality, yet 53% employ a health-related
message.”72 This additional problem of deceptive health claims is addressed next.

b. Deceptive or inaccurate nutrition claims that can mislead parents into over-
estimating the nutritional value of a product

Growing interest in nutrition and dietary health has created concern over food
labeling.73 A Public Health and Nutrition article notes that “[a]dult shoppers are
increasingly interested in referring to nutrition information on labels to guide
their purchase decisions, and misleading information signals intent on the part of
companies to deceive and confuse consumers.”74 Unfortunately, the authors also
observe that misleading nutritional claims are commonplace: 55.5 percent of 119
unhealthful foods that they examined were marketed using claims portraying
them as healthy.75

Through the Food, Drug, and Cosmetic Act,76 the Food and Drug
Administration is authorized to protect the public from false claims about the

70. Id. at 1133 (citations omitted).

71. See supra note 57 and accompanying text.

72. Jessica Castonguay et al., Healthy Characters? An Investigation of Marketing Practices

in Children’s Food Advertising, 45 J. NUTRITION & BEHAV. 571, 571 (2013).

73. Jack Gainey, Note, An Examination of Trans Fat Labeling: Splitting the Third & Ninth

Circuit, 23 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 461, 463 (2017) (citation omitted).

74. Mehta et al., supra note 36, at 1768.

75. Id.

76. 21 U.S.C. §§ 301-399(g) (codified as amended by Pub. L. No. 117-103 (2022)).



312 INDIANA HEALTH LAW REVIEW [Vol. 20:301

composition and nutrition of products.77 False and misleading food labeling are
prohibited in the highly detailed provisions of Section 343 of the statute.78 In a
2007 “Dear Manufacturer” letter, the FDA reminded industry that their oversight
governs a wide variety of labeling claims, relating to health, product structure,
product function, nutrients, and dietary guidance.79

Package nutritional claims are made in two separate places: in the
standardized nutrition charts and in the bold generic claims often made as part of
a package’s graphics. Accuracy of nutrition claims made directly in the
standardized nutrition charts is, of course, important,80 as false or deceptive
information can mislead parents to purchase products they might otherwise avoid
for their children.81 While consumers vary in how often they consult food
nutrition labels, most do report using them frequently when buying food
products.82

Arguably even more influential, though, are the nutrition claims that are hard
for any consumer to miss because they are made outside the nutrition chart,
typically in big, bold, eye-catching letters and graphics. FDA oversight over food
labeling is broad and applies not only to the nutrition chart, but also to any
general claims made anywhere on the package.83 Consumers are more likely to
see the bold packaging claims on a product’s marketing graphics than the small
print label, and parents frequently misinterpret the meaning of such claims.84

77. Milestones in U.S. Food and Drug Law History, FDA, https://www.fda.gov/about-

fda/fda-history/milestones-us-food-and-drug-law [https://perma.cc/2MDL-DXSR] (last updated

Jan. 30, 2023) (hereinafter “Milestones”).

78. See 21 U.S.C. § 343.

79. FDA, FDA-1998-N-0050, GUIDANCE FOR INDUSTRY AND FDA: DEAR MANUFACTURER

LETTER REGARDING FOOD LABELING (2007).

80. For detailed discussion of nutritional information in the labeling itself, see generally

Danielle M. Haikal, An Unsealed Package: The Ninth Circuit Creates a Circuit Split When

Interpreting FDA Regulations on Food Label Nutrient Claims in Reid v. Johnson & Johnson, 57

B.C. L. REV. E-SUPPLEMENT 124 (2016).

81. Of course, the value of nutrition information on labels depends on whether consumers

use the information, and such consumer use can be variable. See Judith A. Garretson & Scot

Burton, Effects of Nutrition Facts Panel Values Nutrition Claims, and Health Claims on Consumer

Attitudes, Perceptions of Disease-Related Risks, and Trust, 19 J. PUB. POL’Y & MARKETING 213

(1990) (finding that consumer evaluations and perceptions of disease risk are affected by

information regarding fat, but not by information regarding fiber).

82. Ramu Govindasamy & John Italia, The Influence of Consumer Demographic

Characteristics on Nutrition Label Usage, 5 J. FOOD PROD. MARKETING 55 (2000).

83. Chelsea M. Childs, Note, Federal Regulation of the “Smart Choices Program”:

Subjecting Front-of-Package Nutrition Labeling Schemes to Concurrent Regulation by the FDA

and the FTC, 90 B.U. L. REV. 2403, 2406 (2010) (“In exercising its broad grant of jurisdiction over

food labeling, the FDA considers the claims made or suggested on the package, as well as any

material omissions, to determine whether a product’s label is misleading.”) (citation omitted).

84. Jennifer L. Harris et al., Nutrition-related Claims on Children’s Cereals: What do They

Mean to Parents, and Do They Influence Willingness to Buy?, 14 PUB. HEALTH NUTRITION 2207,



2023] REGULATING THE MARKETING OF FOOD TO MINORS 313

Despite broad FDA oversight85 and ubiquitous state consumer protection
laws, liability for misleading food claims can be spotty. Some courts allow
questionable food product claims under an assumption that “where a product’s
marketing leaves some ambiguity as to its ingredients, reasonable consumers
would read the label.”86 This approach is troubling.

What the courts label as ambiguity might not be what you or I would consider
to be ambiguous. One example comes from the Northern District of Illinois,
where the court determined that the claim “100% Grated Parmesan” was
ambiguous, and therefore the consumer should refer to the nutrition label to see
if the product in fact contained other substances.87 Despite its acknowledgment
that the product’s ingredient list is smaller and less conspicuous than the nutrition
label, and that the product contained up to 8.8% of filler,88 the court found the
labeling to be non-deceptive under the applicable consumer protection laws.89

This approach is regrettable. A product that the manufacturer calls “100%
Grated Parmesan” might be ambiguous to some, but it also will appear clear and
unambiguous to other buyers. They will believe the product will contain all
grated parmesan cheese, and not nearly one-tenth filler. The consumer should not
be expected to verify the company’s claim by going to the nutrition label to be
sure it does not mean something other than what many reasonable consumers will
view as the clear, obvious interpretation.

If a product nutrition claim is ambiguous, that ambiguity should be deemed
unacceptable under the laws that purport to protect us. Companies should be clear
in the factual claims they make about the ingredients in their products. We should
not condone and accommodate unclear marketing claims by placing the onus on
the consumer to (1) recognize an ambiguity they may not even see, and then (2)
resolve that ambiguity.

It is not asking too much to require companies to make ingredient and
nutrition claims that are clear, unambiguous, and accurate. These companies of
course employ highly sophisticated, expensive research to market their food
products effectively to consumers.90 Consumers are more casual and less

2207 (2010) (reporting their study findings that “[t]he majority of parents misinterpreted the

meaning of claims commonly used on children’s cereals. They inferred that cereals with claims

were more nutritious overall and might provide specific health-related benefits for their children;

and these beliefs predicted greater willingness to buy the cereals.”).

85. See supra notes 76-79 and accompanying text.

86. Cary Silverman, In Search of the Reasonable Consumer: When Courts Find Food Class

Action Litigation Goes Too Far, 86 U. CIN. L. REV. 1, 17 (2018).

87. In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 275 F. Supp. 3d 910,

923 (N.D. Ill. 2017) (“[T]he description ‘100% Grated Parmesan Cheese’ is ambiguous—as are the

other, similar descriptions of Defendants’ products—so Plaintiffs’ claims are doomed by the readily

accessible ingredient panels on the products that disclose the presence of non-cheese ingredients.”).

88. Id. at 914.

89. Id. at 919-25.

90. See Luke LaBorde & Winifred W. McGee, Food For Profit: Marketing Your Food



314 INDIANA HEALTH LAW REVIEW [Vol. 20:301

sophisticated in exercising our part of the transaction with these companies. Many
people do not routinely consult nutrition labels,91 and they should not be expected
to fact-check every generic front-of-package claim that manufacturers make.
Companies should be accountable for the accuracy of all their nutrition claims,
including the big, bold, eye-catching package language that most consumers
cannot miss seeing.

2. Marketing Food Directly to Children with Included Toys

By the 2020s, anyone reading this article grew up with a variety of foods sold
with a toy or prize included. Ipatenco summarizes the strategy, as well as the
problems associated with including toys with food92:

One of the most powerful marketing tools that fast food restaurants use
is the promise of a toy with the purchase of any kids’ meal. The food
inside the meal is far less important to most children than the toy that
comes with it, the Colorado State University Extension reports. When
fast food restaurants offer versions of the most popular toys on the
market, children want to eat the food so they can get the toy. The
problem isn’t the toy, but the lack of nutritious food that children eat to
obtain the toy.93 Most kids’ meals are high in fat, calories, and salt, but
low in essential nutrients such as vitamin C, potassium, and iron.

Fast food restaurants spend more money on toy promotions than any other
category of child-oriented marketing.94 All of the major fast-food restaurants have

Product, PENNSTATE EXTENSION (Apr. 26, 2019), https://extension.psu.edu/food-for-profit-

marketing-your-food-product [https://perma.cc/CD35-GFBC] (discussing this process, and

observing, “[m]arketing is more than advertising. It is everything you do to promote your business

and your food products from the moment you conceive of a product to the point at which customers

buy it.”).

91. Most studies on nutrition label access have been done outside the United States. See, e.g.,

Klaus G. Grunert et al., Use and Understanding of Nutrition Information on Food Labels in Six

European Countries, 18 J. PUB. HEALTH 261, 261 (2010) (finding that “[a]cross six product

categories, 16.8% of shoppers were found to have looked for nutrition information on the label,

with the nutrition grid (table or list), GDA labels and the ingredients list as the main sources

consulted and calories, fat and sugar the information most often looked for.”).

92. Sara Ipatenco, What Attracts Kids to Fast Food?, SFGATE (Nov. 27, 2018),

https://healthyeating.sfgate.com/attracts-kids-fast-food-1589.html [https://perma.cc/Z22E-26QR].

The terms “prizes” and “toys” are indistinguishable, with toys being slightly more expensive and

sophisticated than the very cheap prizes that came in certain candy and cereal boxes back in the

1960s. From the standpoint of this discussion, they can be treated as the same, as they both serve

the same marketing functions and they both play the same role of engaging children.

93. Id.

94. Alexis M. Etow, Comment, No Toy for You! The Healthy Food Incentives Ordinance:

Paternalism or Consumer Protection?, 61 AM. U. L. REV. 1503, 1511 (2012).



2023] REGULATING THE MARKETING OF FOOD TO MINORS 315

offered so-called “kids meals” that come with a toy prize.95 Some companies
create an array of different promotional toys tied to a popular movie.96 A child
who undertakes the challenge to collect the entire set may be encouraged to eat
substantial amounts of food to meet that goal.97

Not only are free toys included with food products; they are also tied to
children’s television or movie characters, enhancing both slogan recall and
product identification.98 Children “associate fictional characters and toys with
certain food products, conflating excitement over their favorite cartoon or toy
with enthusiasm about a food product.”99 This should lead us to wonder: is it
appropriate for companies to engage in this kind of psychological manipulation
of a vulnerable group100 that is experiencing substantial health consequences of
poor dietary choices?101

Regulation of toy prizes to market foods to children is not common, but a
notable example was approved by the San Francisco Board of Supervisors in
2010102 and passed into law in 2011.103 It’s often casually referred to as the

95. Cortney Price, The Real Toy Story: The San Francisco Board of Supervisors Healthy

Food Initiatives Ordinance, 8 J. FOOD L. & POL’Y 347, 350 (2012).

96. See Susan Linn & Josh Golin, Beyond Commercials: How Food Marketers Target

Children, 39 LOY. L.A. L. REV. 13, 18-20 (2006).

97. Id. at 19 (“Promotions and tie-ins that target children also frequently ac-company films

designed for a more general audience. Star Wars: Episode III--Revenge of the Sith, released in May

2005, had sixteen food promotions featuring twenty-five different products. Many of these

promotions encouraged young children to consume large portions of food that are high in calories,

fat, and sugar. To collect all seventy-two Star Wars M&M wrappers, children would have to buy

forty-five pounds of M&Ms (containing more than 10,000 grams of sugar). To collect all thirty-one

Star Wars Super D toys kids would have to buy more than five Burger King children’s meals.”)

(citations omitted).

98. Roseann B. Termini et al., Food Advertising and Childhood Obesity: A Call to Action for

Proactive Solutions, 12 MINN. J. L. SCI. & TECH. 619, 630 (2011).

99. Id. at 631.

100. Vulnerability of minors relates to their still-developing ability to think and reason

independently. See Jeffrey S. Dill, The Parent Trap: The Challenges of Socializing for Autonomy

and Independence, 52 SOCIETY 150, 150 (2015) (discussing independent thinking and the ability

to resist negative influences as a key part of child development).

101. See supra note 62 and accompanying text.

102. San Francisco Bans the Happy Meal, HUFF POST (May 25, 2011), https://www.huffpost.

com/entry/san-francisco-happy-meal-ban-mcdonalds_n_777939?guccounter=1&guce_referrer=

aHR0cHM6Ly93d3cuYmluZy5jb20vc2VhcmNoP3E9c2FuK2ZyYW5jaXNjbytoYXBweSttZW

FsK2JhbiZmb3JtPUVER1RDVCZxcz1BUyZjdmlkPWRiMDE0MWU5MGI0YTQxMGE5MG

E4ODc4ZjRiZTYyM2EyJnJlZmlnPTU3YjYwODM1MTUxZTQyZDY5YTM3NjkxZjFlNDMz

Yzg4JmNjPVVTJnNldGxhbmc9ZW4tVVM&guce_referrer_sig=AQAAAMC5SxHu3U-abiXei8-

3Rvdzz4CXEPOBcZ7vSw1qLZ0u8PHDcrjbxyYp_DHwxjHn_3wN8IgyZ1AWX0SWB0_RRz-

FOVjz4FzOu4ONxzoe4Jo4Pu1mBWH5e0-xIYZyQVKOFSRx1uIF0p0kQngaGkdeRoK

JIZzUzoyMCtQKvA8bophw#:~:text=San%20Francisco%20Bans%20The%20Happy%20Meal.



316 INDIANA HEALTH LAW REVIEW [Vol. 20:301

“Happy Meal Ban.”104 The Ordinance isn’t a blanket ban on inclusion of toy
prizes with food; rather, it prohibits including free incentive items with children’s
meals that do not meet threshold nutritional guidelines.105 Specifically, take-out
meals can only include incentive items if they are sufficiently low in calories, fat,
and sodium, and include threshold servings of fruit and vegetables.106

Two restaurant chains reviewed in one study both adopted the same creative
strategy to comply with the letter rather than the spirit of the ordinance: instead
of altering the meals to meet the threshold nutritional requirements for including
a free toy, they charge ten additional cents to customers who decide to purchase
the toy along with the meal.107 Of the meal purchases surveyed in the study, 88
percent of consumers opted to buy the ten-cent toy.108

The authors concluded that banning only “free” toys can inadvertently reduce
the chances that restaurants will improve the nutritional content of children’s
meals to comply with the law.109 Rather than either eliminating toy prizes or
improving meal quality, these restaurants in San Francisco simply developed a
creative loophole that subverts the purpose and the effectiveness of the regulation.

C. Product Placement at Children’s Eye-Levels in Supermarkets

Supermarket design is not haphazard or random. Rather, “[g]rocery shopping,
start to finish, is a cunningly orchestrated process. Every feature of the
store—from floor plan and shelf layout to lighting, music, and ladies in aprons
offering free sausages on sticks—is designed to lure us in, keep us there, and
seduce us into spending money.”110

Food manufacturers pay supermarkets “slotting fees” to have their products
placed at advantageous levels on grocery shelves.111 For cereals targeted toward

%20San%20Francisco,majority%20of%208-3%2C%20effectively%20bans%20the%20Happy%

20Meal [https://perma.cc/6DQY-T352].

103. SAN FRANCISCO HEALTH CODE, ART. 8 § 471.2 (DEC. 1, 2011). 

104. See, e.g., McDonald’s finds a way around San Francisco’s “Happy Ban,” NBC News

(Nov. 30, 2011), https://www.nbcnews.com/business/markets/mcdonalds-finds-way-around-san-

franciscos-happy-meal-ban-flna1c7100983 [https://perma.cc/9RMC-PGPK]. 

105. Matthew J. Parlow, Health Zoning, 44 FORDHAM URBAN L.J. 33, 43 (2017).

106. See supra note 104.

107. Jennifer J. Otten et al., Impact of San Francisco’s Toy Ordinance on Restaurants and

Children’s Food Purchases 2011-2012, 11 PREVENTING CHRONIC DISEASE 1,1 (2014). 

108. Id.

109. Id.

110. Rebecca Rupp, Surviving the Sneaky Psychology of Supermarkets, NAT’L GEOGRAPHIC

(June 4, 2015), https://www.nationalgeographic.com/culture/food/the-plate/2015/06/15/surviving-

the-sneaky-psychology-of-supermarkets/ [https://perma.cc/2ETK-R749]. 

111. Sophia Mitrokostas, Why cereal boxes are at eye level with kids, INSIDER (Jan. 14, 2019),

https://www.insider.com/cereal-boxes-eye-level-kids-marketing-2019-1 [https://perma.cc/58HA-

ESAV].



2023] REGULATING THE MARKETING OF FOOD TO MINORS 317

children, these are the lower shelf levels, i.e., children’s eye levels.112 The strategy
is simple: “[k]eeping items like sugary cereal visually and physically accessible
to kids is an effective way to sell more product.”113

This approach has been fine-tuned to reach even the smallest of toddlers and
children in low-level strollers. Whereas characters on adult cereal boxes tend to
look straight ahead, the cartoon characters featured on cereal boxes aimed toward
children tend to gaze downward.114 The resulting eye contact increases connection
with the brand, as well as trust in it.115

Placement of sweetened cereals where children can see them and make eye
contact with their mascots is a rational—indeed, an ingenious—marketing
strategy. If children are a substantial market segment, then attracting them to the
product makes sense. But while the strategy may be highly effective, is socially
responsible?

Whatever the answer, companies have not to date curtailed this practice as a
matter of corporate social responsibility. There is no evidence that they consider
it unethical to market unhealthy products directly to the vulnerable populations
of toddlers and children. If the practice is to cease, it will only be through
regulations that prohibit it as a matter of public health and consumer protection.

D. The Controversy Over Public Health Interventions to Curb These Practices

Policy recommendations to curb these industry practices are controversial.
Solutions balance “the relationship between juvenile neurodevelopmental factors,
legal and social norms, stakeholder interests, and institutional considerations.”116

This Section addresses arguments for and against public health interventions
around food marketing.

1. Arguments in Favor of Public Health Interventions Around Food Marketing

The case for food marketing interventions usually relies on two prongs. First,
children historically have been recognized as a vulnerable population deserving
legal protections.117 Second, intervention into food marketing can improve overall

112. Id.

113. Id.

114. Marisa Taylor, Cereal Offense: The Marketing Ploy Behind Kids’ Breakfast, ALJAZEERA

AM. (Apr. 2, 2014), http://america.aljazeera.com/articles/2014/4/2/cap-n-crunch-cerealseyecontact

children.html [https://perma.cc/8QZL-N36Q]. 

115. Emily Cohn, You’ll Never Look at Cereal Boxes the Same Again, HUFF POST (Dec. 6,

2017), https://www.huffpost.com/entry/cereal-boxes-gaze_n_5078704 [https://perma.cc/LU5Z-

TS3V]. 

116. Michael N. Tennison & Amanda C. Pustilnik, “And if your friends jumped off a bridge,

would you do it too?”: How Developmental Neuroscience Can Inform Legal Regimes Governing

Adolescents, 12 IND. HEALTH L. REV. 533, 586 (2015). 

117. For example, children have been protected from rigid enforcement of contracts since the



318 INDIANA HEALTH LAW REVIEW [Vol. 20:301

population health and reduce medical costs borne by individuals and society
alike.

a. Children are a vulnerable population deserving legal protections

The law has long recognized minors as vulnerable and deserving of
protection. For example, contracts made by minors have been voidable under
many circumstances for centuries.118 Sexual relations with persons below the age
of consent is statutory rape because any purportedly “consenting” minors are still
developing mentally and emotionally vulnerable, such that any ostensible consent
is vitiated.119 

Government intervention to protect children can, however, become
controversial when the threats addressed are considered less serious than these
examples, and therefore arguably best kept under the control of parents.120 How
serious, then, are the threats to children created by unhealthful diet and nutrition?

Unhealthful foods do pose substantial threats to children, from which they
deserve protection. Consider that we have come to replace the old term “adult-
onset diabetes,” because it is no longer accurate, with the broader term “Type-2
diabetes.”121 The poor diets that once caused only adults to develop insulin
resistance now cause many children to develop insulin resistance and Type-2
diabetes as well, threatening an array of ills including retinopathy, stroke, heart
attacks, nephropathy, neuropathy, and ketoacidosis.122

If children are worthy of protection from unscrupulous businesses through
voidability of contract, and from sexual exploitation through statutory rape laws,
are they not also worthy of protection from disease and early death from poor

15th century, in recognition of their inexperience. See Steven Wolfe, Reevaluation of the

Contractual Rights of Minors, 57 UMKC L. REV. 145, 145 (1988).

118. See id. (“Beginning in the fifteenth century, courts determined that minors needed

protection ‘from those who might take advantage of their inexperience [and] from the consequences

of their own rash and ill-advised acts. As a result of this determination, courts began to hold that

minors were not bound by contracts entered during their minority.”) (citation omitted).

119. See Nancy Findholt & Linda C. Robrecht, Legal and Ethical Considerations in Research

with Sexually Active Adolescents: The Requirement to Report Statutory Rape, 34 PERSPECTIVES ON

SEXUAL & REPROD. HEALTH 259, 259 (2002) (“Historically, the reason most often provided to

justify punishment for statutory rape is that children below a certain age are incapable of making

significant decisions: They are unable to consent to sexual intercourse, and thus, they are vulnerable

and deserve state protection.”).

120. See Francis Barry McCarthy, The Confused Constitutional Status and Meaning of

Parental Rights, 22 GA. L. REV. 975 (1988).

121. See Type 2 Diabetes Mellitus, HARV. HEALTH PUB. (Feb. 23, 2022), https://www.health.

harvard.edu/a_to_z/type-2-diabetes-mellitus-a-to-z (“Type 2 diabetes is also called type 2 diabetes

mellitus and adult-onset diabetes. That’s because it used to start almost always in middle- and late-

adulthood. However, more and more children and teens are developing this condition.”).

122. Complications of Diabetes, DIABETES UK, https://www.diabetes.org.uk/guide-to-

diabetes/complications (last visited Nov. 1, 2022).



2023] REGULATING THE MARKETING OF FOOD TO MINORS 319

nutrition?123 In this light, harmful marketing of unhealthy foods aimed at toddlers
and young children may be irresponsible at best, and deadly at worst.

b. Regulation can improve overall population health and reduce medical costs
borne by individuals and society

Critics of regulation view it as the parents’ role, not the state’s role, to protect
children’s nutrition and food choices: they suggest that the government should
not interfere with parental responsibility and prerogative around children’s
nutrition.124 Proponents of regulation are likely to see this argument as a red
herring. No one is trying to take away the role of parents in selecting and buying
food for their children. No proposed reforms to date seek to shift the final food
purchase and consumption decisions from parents to the state.

Instead, proposed public health regulations seek to curtail well-heeled
companies from practices that make it harder for parents to make healthy choices.
And while such actual public health intervention is unobtrusive, the harms it
addresses go beyond the children themselves. These harms affect us all. Consider
data Min discussed in 2013:

More than half of the adult New York City population (58%) and nearly
20% of New York City public school students (kindergarten through
eighth grade) are now overweight or obese. In 2006, obesity cost the
nation $147 billion in direct medical costs—insurers in New York State
alone spent $11.1 billion in obesity-related medical costs, including $2.7
billion spent by Medicare and $4 billion by Medicaid. By 2012, obesity-
related medical costs increased to $190 billion for the uninsured, with
annual medical spending for each obese person totaling $3,271,
compared to $512 for the non-obese. Additional indirect costs include
decreased productivity, increased insurance premiums, and increased
disability costs. Thus, in this context, food choices affect not only the
individual who makes them, but also all taxpayers.125

2. Arguments Against Regulating Food Marketing

Arguments against regulating the marketing of foods and beverages focus on
individual rights and responsibilities, specifically the right and responsibility of

123. See Sheldon E. Litwin, Childhood Obesity and Adult Cardiovascular Disease, 64 J. AM.

COLL. OF CARDIOLOGY. 1588, 1589 (2014) (“[W]e cannot forestall embarking on the monumental

effort that will be required to find methods to control or, better yet, prevent the growing crisis of

childhood obesity.”).

124. See, e.g., Reps. Lee Terry & Paul Broun, Terry, and Broun: Nutritional Guidelines are

Nanny State Run Amok, ROLL CALL (Sept. 20, 2011), https://rollcall.com/2011/09/20/terry-and-

broun-nutritional-guidelines-are-nanny-state-run-amok/. 

125. Hery Min, Large-Sized Soda Ban as an Alternative to Soda Tax, 23 CORNELL J. L. & PUB.

POL’Y 187, 195 (2013).



320 INDIANA HEALTH LAW REVIEW [Vol. 20:301

parents to guide their children’s eating choices126 without government
interference. Public health initiatives against obesity trigger backlash from both
the food industry and consumer rights groups, based on civil liberties arguments
grounded in freedoms of speech, choice, and contract.127

Detractors of public health interventions couch their opposition in the
vernacular of a “national nanny” or “nanny state.”128 They seek to decrease or
eliminate government influence on the market transactions between food
manufacturers and consumers.129 For opponents of public health intervention, it
is solely to role of parents to protect their children.130 From their perspective,
public health policies can be objectionable if they “undermine[] individual
freedom and personal responsibility.”131 They “worry that the state may remove
more and more individual choices in the service of better population health[.]”132

Of course, government regulatory forbearance still allows for, and may even
encourage, free self-regulation by companies and industry groups.133 Self-
regulation has an additional benefit of avoiding any First Amendment challenges
that could be triggered by the regulation of advertising.134 Skeptics might argue
that if self-regulation were a viable alternative to government control, it would
have been implemented by now. Research is still needed to explore the extent to
which the food and drink industries have or have not stepped up to moderate their
own behavior to date.135 

126. See Cheryl “Shelly” Taylor Page, Childhood Obesity, and Its Effects on Students’

Academic Performance, 21 U.C. DAVIS J. JUV. L. & POL’Y  79, 82 (2017) (observing a belief of

many that “the most important participants in creating a healthy lifestyle for a child are the child

and the child’s parents.”).

127. Michelle M. Mello et al., Obesity—The New Frontier of Public Health Law, 354 NEW

ENG. J. MED. 2601, 2601 (2006).

128. See Janet Hoek, Informed Choice, and the Nanny State: Learning from the Tobacco

Industry, 129 PUB. HEALTH 1038, 1041 (2015) (discussing various “nanny state” arguments put

forth by industry in response to public health proposals).

129. Id.

130. Id.

131. Jacquelyn H. Flaskerud, The Nanny State, Free Will, and Public Health, 35 ISSUES IN

MENTAL HEALTH NURS. 69, 70 (2014).

132. Id.

133. J. Howard Beales, Advertising to Kids and the FTC: A Regulatory Retrospective that

Advises the Present, 12 GEO. MASON L. REV. 873, 887 (2004).

134. See Pomerantz, supra note 39.

135. See Parke Wilde, Self-regulation, and the Response to Concerns About Food and

Beverage Marketing to Children in the United States, 67 NUTRITION REV. 155, 165 (2009)

(“Improving and evaluating the current self-regulatory system has reached a critical juncture. Sound

economic and legal perspectives motivate an attempt at self-regulation, but both perspectives also

offer justification for stronger measures if self-regulation is insufficient to meet important public-

interest goals. Leading reports and influential policymakers describe the current system of self-

regulation as an experiment to be evaluated critically with an eye toward possible changes in

government policy in the future.”).



2023] REGULATING THE MARKETING OF FOOD TO MINORS 321

The threat of potential government regulation can provide impetus for
corporate self-regulation, as in the case of big tobacco.136 Massive public and
government pressure threatened the industry with increased oversight and
regulation, paving the way for the Master Settlement under which industry
voluntarily agreed to constraints on it marketing practices.137 This analogy is
examined in the following Section.

IV. GOING FROM PUBLIC HEALTH INTERVENTIONS REGARDING TOBACCO TO

PUBLIC HEALTH INTERVENTIONS REGARDING FOOD AND NUTRITION

As previously shown, the debate over public health interventions pits
protection of individual freedom against regulation to improve health
outcomes.138 The author recommends in the following Section preserving the
ultimate decision-making authority of parents while embracing reasonable
regulation to help parents make decisions that benefit their children.

This kind of intervention has precedent in our recent history. Tobacco
products were not banned in the United States, but public health policies
dramatically reduced smoking through nudges. Subsection (A) discusses the
tobacco example as a model for regulating children’s nutrition without overly
aggressive interventions; subsection (B) makes specific recommendations for
moderate public health policies that can save lives and enhance the quality of
lives among children, as well as the adults we want them to live to be.

A. The Tobacco Example as a Model for Moderate Regulation

An ambitious public health agenda has addressed smoking-related issues,
yielding dramatic health improvements that benefit us all. I offer the tobacco case
as a tried-and-true example of broad social support for public health intervention,
short of product bans, to achieve vast gains in the public well-being while
keeping ultimate free choice in the consumer’s hands.

The tremendous health risks associated with cigarette smoking were not
always as clearly identified and as comprehensively understood as they are today.
They became widely recognized in the 1950s due to studies linking cigarette tar
to cancer in mice and demonstrating correlation between smoking and lung
cancer.139 In the 21st century, these serious risks are well documented and widely
understood.140 As summarized by Peterson:

136. See The Master Settlement Agreement, NAT’L ASS’N OF ATTY’S GEN., https://www.naag.

org/our-work/naag-center-for-tobacco-and-public-health/the-master-settlement-agreement/

[https://perma.cc/WC7A-2DA8] (last visited Nov. 1, 2022).

137. Id.

138. See Flaskerud, supra notes 131-32.

139. See Williams v. Philip Morris, Inc., 48 P.3d 824, 831 (Or. Ct. App. 2002).

140. Elizabeth Mendes, The Study That Helped Spur the U.S. Stop Smoking Movement, AM.

CANCER SOC. NEWS (Jan. 9, 2014), https://www.cancer.org/latest-news/the-study-that-helped-spur-

the-us-stop-smoking-movement.html [https://perma.cc/N2JZ-TWWU] (noting that most Americans



322 INDIANA HEALTH LAW REVIEW [Vol. 20:301

Cigarette smoking accounts for 400,000 deaths annually—more than
AIDS, alcohol, cocaine, heroin, homicide, suicide, motor vehicle crashes,
and fires combined—making cigarettes the leading preventable cause of
death in the United States. Tomorrow, approximately 4,000 children
under the age of eighteen will experiment with cigarettes for the first
time and another 1,500 will become regular smokers. Of those that
smoke regularly, about half will eventually die from tobacco use.
Tobacco-related illnesses in the United States alone cost approximately
$193 billion each year in lost productivity and health care
expenditures.141

With increased awareness of these health risks came a number of public
health initiatives that successfully and substantially reduced smoking rates in the
U.S. Whereas around half a century ago, 42 percent of American adults smoked,
15.5 percent smoked in 2016, and 13.9 percent smoked in 2017.142 This stunning
achievement was the orchestrated result of a uniquely effective public health
campaign that, among other things, modified the marketing practices of tobacco
companies.143 

Some of the public health initiatives around tobacco could, of course, be
characterized by individual rights proponents as incursions on personal freedoms.
Cigarette price increases were achieved through steep excise taxes that raised the
cost of choosing to smoke.144 They were a government intervention in the market
transaction between seller and buyer that altered the individual economic value
proposition of smoking.145 Anti-smoking campaigns sponsored by the public’s tax
dollars likewise were a centralized government initiative to mold beliefs and
behaviors, with a goal of altering individual decision-making.146

born post-baby boom have known all their lives that smoking can cause cancer).

141. Ashley Peterson, Comment, Lighting a Fire Under Free Speech: The FDA’s Graphic

Attempts to Reduce Smoking Rates, 48 U. RICH. L. REV. 799, 799 (2014).

142. Smoking in America: Why more Americans are Kicking the habit, AM. HEART ASS’N

NEWS (Aug. 30, 2018), https://www.heart.org/en/news/2018/08/29/smoking-in-america-why-more-

americans-are-kicking-the-habit [https://perma.cc/HN83-U8HB]. 

143. David T. Levy et al., The Impact of Implementing Tobacco Control Policies: The 2017

Tobacco Control Policy Scorecard, 24 PUB. HEALTH MGMT. & PRACTICE 448 (2018).

144. See Gary Lucas, Saving Smokers from Themselves: The Paternalistic Use of Cigarette

Taxes, 80 U. CIN. L. REV. 693, 693 (2012) (noting that cigarette tax revenue exceeded $32 billion

in 2010).

145. This is not necessarily to say that cigarette taxes that raise consumer prices are repugnant

to free market principles. The taxes enable government to collect funds that might cover smoking-

related externalities that are not paid for in the transaction between seller and buyer. These

externalities potentially include pollution, health costs to bystanders due to passive smoke

inhalation, and health costs to the public as payers of insurance premiums. 

146. See Kristin M. Sempeles, Comment, The FDA’s Attempt to Scare the Smoke Out of You:

Has the FDA Gone Too Far with the Nine New Cigarette Warning Labels?, 117 PENN. STATE L.

REV. 223, 224 (2012) (suggesting that FDA-mandated warning labels “cross over the line of



2023] REGULATING THE MARKETING OF FOOD TO MINORS 323

Moreover, whereas individuals had wide berth in choosing where and when
to smoke in the 1950s and 1960s, smoke-free laws increasingly eroded free
choice on where and when a smoker could light up.147 Even smoking cessation
programs, the least intrusive of these public health initiatives, have been
supported by government dollars and policy choices.148

This ambitious public health approach to tobacco successfully improved our
collective lives, without ever taking tobacco products off the market. Today, poor
diet contributes to individual suffering and public expense, analogous to the
effects of smoking. Like public health interventions regarding tobacco, policy
choices around food and nutrition can reduce disease, delay death, improve
quality of life, and avoid unnecessary health care costs that are currently borne
by the public.

B. Proposed Regulation and Self-Regulation to Address Public
Health Issues Around Nutrition

From a public health perspective, junk food is the new tobacco.149 Pennel
observes:

Tobacco’s position has been usurped. Cigarette products are no longer
responsible for the greatest share of preventable illnesses. Rather,
obesity, resulting from a combination of the “food industry” and the
American appetite, now holds the crown as the most expensive,
preventable health care cost. While public animosity towards the food
industry may lag behind animosity towards the tobacco industry, public
attitude has shifted, demanding tighter control over the food industry.
This shift toward holding fast-food, junk-food, and manufacturers of
unhealthy food products partially responsible for the growing obesity
epidemic is necessary before legislation and judicial action against the
food industry can occur. Indeed, a similar shift in public opinion helped
to tighten regulations on the tobacco industry and eventually hold it
liable for the harms associated with tobacco use.150

As previously noted, critics dislike public health regulations, evoking images

informative warnings into anti-smoking advocacy). 

147. One example is the curtailment of smoking on airplanes, where back rows once actually

permitted smoking, but where smoking of course is now prohibited. See 49 U.S.C. § 41706 (2018).

148. One example of this is smoking-cessation programs as a component of wellness programs

under the Health Insurance Portability and Accountability Act and the Affordable Care Act. For

detailed discussion of these, see Lindsay F. Wiley, Access to Health Care as an Incentive for

Healthy Behavior? An Assessment of the Affordable Care Act’s Personal Responsibility for

Wellness Reforms, 11 IND. HEALTH L. REV. 635, 666-91 (2014). 

149. See Joshua L. Pennel, Big Food’s Trip Down Tobacco Road: What Tobacco’s Past Can

Indicate About Food’s Future, BUFF. PUB. INT. L.J. 101 (2009).

150. Id. 



324 INDIANA HEALTH LAW REVIEW [Vol. 20:301

of a “national nanny,” arguing that responsibility for children’s nutrition should
remain on parents.151 Indeed, placing all responsibility for poor nutrition on
individual consumers and on the parents of minors could make reasonable sense
if food choices were solely under their control. Unfortunately, much of the
control of individual consumer food choices is aggressively influenced by
powerful external forces. Diller observes, “[b]ehavioral scientists have
understood for decades that when it comes to food, we are anything but fully
autonomous. One’s choice of what and how much to eat is strongly influenced by
environment and context.”152

We like to see ourselves as discerning, rational actors who recognize
marketing manipulation; in reality, we remain susceptible to marketing practices
in our purchasing and consumption choices.153 Why would companies spend
millions on marketing if it did not work?

Hoek eloquently summarizes the dynamics at work here:

Deliberate industry interference has often created situations where
consumers have access only to incomplete and inaccurate information.
These contexts, coupled with consumers’ inherent cognitive biases, mean
truly ‘informed choices’ are an academic concept far removed from lay
consumers’ everyday experiences. Whether the risk behavior involves
smoking, consumption of unhealthy foods or unsafe alcohol intake,
individuals’ actions largely reflect their commercially constructed
environments. Unfortunately, these are rarely conducive to considered
evaluations of the costs and benefits they might incur immediately and
in the future.154

This vulnerability is, of course, exacerbated when the ultimate consumer is
a child. Given that responsible parenting will vary, and children are worth
protecting, reasonable regulations to protect those children just make good sense.
Woodhouse provides another important perspective on the “national nanny”
critique: we think of regulation as interfering with parental prerogative, yet mass
marketing does the same thing.155 She observes, “[i]n our times, mass-media
marketing has displaced parents as the primary force in the socialization of
children. It has compromised true parental autonomy by bombarding our children,
and their parents, with toxic images designed to sell unhealthy products.”156

From this vantage, moderate regulation that does not outlaw any food
products is most accurately cast as government mitigation of corporate influence,

151. See supra notes 128-32 and accompanying text.

152. Paul A. Diller, The Illusion of Autonomy in “Food” Litigation, 41 AM. J. L. & MED. 274,

274 (2015). 

153. Adam Benforado et al., Broken Scales: Obesity and Justice in America, 53 EMORY L.J.

1645, 1691 (2004).

154. Hoek, supra note 128, at 1042.

155. Barbara Bennett Woodhouse, Reframing the Debate About the Socialization of Children:

An Environmentalist Paradigm, 2004 U. CHI. L. FORUM 85, 164 (2004).

156. Id.



2023] REGULATING THE MARKETING OF FOOD TO MINORS 325

rather than government prohibition of parental prerogative. Even in our
sometimes fiercely freedom-oriented, individual rights-focused culture in the
U.S., many people do believe “that the government should actively address the
obesity crisis . . . .”157

V. RECOMMENDATIONS

We have discussed the ideological tension around public health interventions,
pitting individual freedom/anti-regulation advocates against proponents of public
policies to improve nutrition and reduce disease. My approach in attempting to
bridge these two perspectives is to resist bans that eliminate ultimate consumer
options, while encouraging public policy nudges toward healthier personal
choices.

The recommendations in this Section never ultimately prohibit any consumer
food options. Rather, they seek to provide some balance against the powerful
influence of companies, which often is not apparent to consumers, and to help
parents make healthy choices for the children they strive to support and protect.

Inherent in this approach is a recognition of a central fact: while personal
freedom advocates may ideally wish for institutions to keep entirely out of their
business and concerns, food companies already sway consumers. Reasonable
government policies to improve public health can balance the well-financed
influence that companies already exert on us.

Some of the recommendations below are for the public, including parents and
others, to advocate aggressively for industry self-regulation. Other
recommendations here go further, suggesting government intervention through
law, regulation, or ordinance. What kinds of initiatives, then, can improve public
health while avoiding unnecessarily harsh product bans?

A. Advocate for Voluntary Industry Self-Regulation of Serving
Sizes of Sugary Drinks

A big contributor to increasing child obesity and overweight is the
“supersize” or “big gulp” phenomenon. We tend to consume more as portion
sizes increase.158 Thus when companies enlarge the size of sugary drinks, total
consumption of sugary drinks can be expected to increase as well. Sugary drinks
are made up of empty calories that provide no nutritional value, and their high
processed sugar content can cause harmful rapid spikes in blood sugar.159

157. Cynthia A. Baker, Bottomless Lines and Waistlines: State Governments Weigh in on

Wellness, 5 IND. HEALTH L. REV. 185, 188 (2008).

158. See B.J. Rolls et al., Portion Size of Food Affects Energy Intake in Normal-Weight and

Overweight Men and Women, 76 AM. J. CLIN. NUTRITION 1207 (2002) (observing diners served

macaroni and cheese ate 30 percent more when the serving contained 1000 grams than when the

serving contained 500 grams).

159. See Sugary Soft Drinks and Diabetes, DIABETES.CO.UK (Jan. 15, 2019), https://www.

diabetes.co.uk/sugary-soft-drinks.html (“Sweetened, sugary drinks can cause sharp rises in blood



326 INDIANA HEALTH LAW REVIEW [Vol. 20:301

Regulatory efforts that restrict serving sizes by law may make sense to many,
but they are also lightning rods that can increase resistance to effective public
health intervention. Some might consider regulation restricting serving sizes as
offensive governmental interference in free choice. While I personally would
support regulation restricting serving sizes as a modest intervention that does not
force anyone not to drink as much sugary drink as they want, such regulation can
trigger resistance and be counterproductive as a result.

What is a workable solution? Persuasion. We need to persuade companies to
sign on for voluntary commitments, uncoerced by legal or regulatory fiat, to limit
individual sugary drink serving sizes as part of their commitment to corporate
social responsibility and their efforts to enhance public health.

Voluntary limits to these serving sizes should not be a prohibitively hard sell
to companies, provided they feel assured that there will be widespread industry
adoption of the limits. The supersize movement attracted customers with
perceived value, and the costs to restaurants became nominal as agricultural
policies subsidized the commodities the foods contain.160 The fast-food
restaurants all do it, and if they all voluntarily stop doing it, any possible
competitive disadvantage to socially responsible sizing would vanish. If anything,
all the companies would experience a savings in cost as reasonably priced drinks
become smaller.

The trick is to get all the players on board to make this change, so that none
of them believe they are competitively disadvantaged by it. How might this be
done? Through a well-planned, persuasive campaign that raises public
consciousness of the issue without triggering concerns around individual
freedoms. The very moderation of a voluntary approach, rather than a regulatory
forced approach, increases the chances that the campaign can be framed in a non-
threatening way, indeed as an all-parties-can-win solution.

B. Advocate for Voluntary Industry Self-Regulation of Bundling Practices

Like the previous recommendation, this second recommendation intentionally
avoids regulatory edict. As with soda serving sizes, bundling directly concerns
the products or product combinations that consumers can choose. Consumption
choices are sensitive because they relate to consumer freedom. They are more
sensitive and delicate than the remaining recommendations in this Section, which
will recommend actual government regulation of practices that do not directly

sugar levels for people with diabetes or glucose intolerance (including prediabetes and gestational

diabetes) and so it’s usually best to avoid drinking sugary drinks.”).

160. Elizabeth Weise, Why Are Portions in U.S. Restaurants So Big?, USA TODAY (June 2,

2014), https://www.usatoday.com/story/opinion/2014/06/02/food-portions-restaurants/9734413/

[https://perma.cc/4YKG-PAPC] (“Following World War II, agricultural policy in the U.S.

expanded. Farmers were able to grow food more cheaply by using fertilizers, pesticides and

herbicides. In the 1970s, the government began subsidizing farmers to grow more food. Over time,

companies have increased their serving sizes to increase their profits, and we all caught on. Why

have less when you can have more for only a little bit more money?”).



2023] REGULATING THE MARKETING OF FOOD TO MINORS 327

limit consumer product options.
Voluntary restrictions on how children’s meals are bundled by restaurants are

reasonable because they can improve nutritional value while still allowing parents
to order any of the products they want, just à la carte rather than bundled.
Voluntary industry self-regulation to ensure that bundled kids’ meals include
healthier drink options, for example, nudge the consumer in that direction, but
they do not preclude consumers from ordering exactly what they want for their
children, including a less healthful drink. And once again, because this approach
is one of persuasion that asks for industry-wide adoption of the socially
responsible practices, it is more palatable for all parties than government-
mandated regulation of consumption options.

There have been government efforts to regulate kids’ meal bundling
practices. Chicago recently passed such an ordinance, prohibiting less healthful
beverages from being packaged as part of kids’ meals in restaurants.161 According
to the city’s press release, the ordinance mandates that “only healthy, non-sugary
beverages be marketed as part of kids’ meals at restaurants, making the healthy
choice the default choice. Parents will be able to ask for sugary drinks, if they
wish, preserving consumer choice.”162

While such government regulation of consumption options will seem
reasonable to many, it also can trigger backlash and resistance. For example, in
2011, the United States Department of Agriculture (USDA) denied a request from
New York State to initiate a pilot program eliminating Supplemental Nutrition
Assistance Program (SNAP) benefits for sugar-sweetened soft drinks.163 This
typifies opposition in the U.S. generally toward government intervention, despite
the fact that in this case, “[t]he primary aim of the Food Stamp Act, now the Food
and Nutrition Act of 2008, . . . [was] ‘to provide for improved levels of nutrition
among low-income households.’”164

Public health regulations are more promising when the intervention relates
to increasing information for consumers, and when the intervention does not
prohibit consumer options, but protects consumers while maintaining all market
choices. The next few recommendations in this Section are bolder than the two
discussed so far. They propose government regulation rather than campaigns for
voluntary industry self-regulation. These recommendations concern the marketing
of unhealthy foods, rather than the direct limitation of consumer product or
product-bundle options. Because such recommendations do not eliminate free
consumption offerings, they are less inflammatory to proponents of consumer
freedom.

161. Press Release, Cty. of Chi., Off. of the Mayor, Only Healthy Beverages Can be Marketed

with Kids’ Meals at Restaurants Under New Ordinance (Dec. 15, 2021).

162. Id.

163. Kelly D. Brownwell & David S. Ludwig, Commentary, The Supplemental Nutrition

Assistance Program, Soda, and USDA Policy, 306 JAMA 1370, 1370 (2011).

164. Id. at 1371.



328 INDIANA HEALTH LAW REVIEW [Vol. 20:301

C. Address Misleading Nutritional Packaging Claims on Food Products
Beyond the Official Nutrition Label

The official nutrition labels that are placed on packaged food products are
informative and useful, covering protein, fat, fiber, sodium, micronutrients, sugar,
and added sugar content. Unofficial nutritional claims on packages outside of the
nutrition label are less scrutinized by law, yet they can be deceptive, misleading,
or ambiguous.

A 2011 study examined consumer interpretation of children’s cereal package
claims such as “supports your child’s immunity,” “whole grain,” “fiber,”
“calcium and vitamin D,” and “organic.”165 The study found that “[t]he majority
of parents misinterpreted the meaning of claims commonly used on children’s
cereals. They inferred that cereals with claims were more nutritious overall and
might provide specific health-related benefits for their children; and these beliefs
predicted greater willingness to buy the cereals.”166

The authors summarize the study’s conclusions: “[t]hese findings indicate
that common front-of-package nutrition-related claims are potentially misleading,
especially when placed on products with high levels of nutrients to limit (e.g.,
sugar, sodium) and low levels of other nutrients to encourage (e.g., fiber, protein).
Additional regulation is needed to protect consumers in the USA.”167

What kind of regulation would address this concern, while also maintaining
First Amendment protections?168 My recommendation is bold, but it is also the
cleanest, simplest, and most thorough: simply prohibit health claims on food
packaging entirely. Such a regulation would likely be challenged under the First
Amendment, but there are strong arguments supporting it, as it doesn’t prohibit
food manufacturers from making health claims in their other advertising; rather,
it is arguably a time, place, or manner restriction that limits such claims to venues
other than the food package itself.169 Given that the restriction would apply to all
food products, no company would be competitively harmed by the restriction. All
companies would be equally constrained, while continuing to be allowed to
communicate about their products through other forms of advertising.

Critics might argue that this is only a half-step that does not go far enough.
Why not restrict food nutrition claims entirely? The First Amendment protects
commercial speech, so nutrition claims that are technically true and therefore are
not a deceptive trade practice must be permitted in at least some time, place, and

165. Jennifer L. Harris et al., Nutrition-Related Claims on Children’s Cereals: What Do They

Mean to Parents, and Do They Influence Willingness to Buy?, 12 PUB. HEALTH NUTRITION 2207

(2011).

166. Id.

167. Id.

168. While this Article does not analyze the Constitutional considerations around limitations

of marketing unhealthful products to children, Pomerantz has analyzed the issue in detail. See

Pomerantz, supra note 39, at 175-84.

169. See id.



2023] REGULATING THE MARKETING OF FOOD TO MINORS 329

manner.170 This is true even if a nutritional claim is arguably harmful because
some customers will lack the nutrition knowledge to understand fully whether the
product is healthful or otherwise.

This can happen when a poorly informed buyer believes the claim means the
product is healthful, when in fact it may not be. A claim that a product is “low
fat” can be true, even though the product is also made palatable and attractive by
being exceptionally high in unhealthful processed sugar. Nonetheless, there is no
Constitutional legal basis for entirely prohibiting this potentially misinterpreted
low-fat claim.

The Constitutionally defensible compromise I propose here eliminates
package claims outside the nutrition label entirely, relegating such claims to other
venues that are less immediately prominent and influential than point-of-purchase
claims. Is this compromise likely, though, to help improve the prevalence of
healthful food choices by parents?

Point of purchase is where any health claims are most salient, and the most
immediate of these are right on the product packaging that buyers see while
shopping. A parent who is concerned about the health of their child may well be
less likely to put a sugary cereal in the cart if it does not have a low-fat claim
boldly announced on front of the box.

Misinterpreted nutritional claims in places other than the product package
can, of course, also influence customers to buy unhealthful products. Any claims
made by the manufacturer in advertising, for example, at least are subject to
extant laws that govern deceptive trade practices and misleading advertising. This
means that, while the regulation proposed here would limit a prohibition of
product marketing claims solely to the product’s package itself, such claims made
by the manufacturer elsewhere will not be entirely unmonitored. As always, false
nutritional claims in their other marketing venues will be subject to FTC
oversight.171

What about ambiguous nutritional claims? We saw earlier that some courts
allow companies to make ambiguous, potentially misleading claims, under the
theory that the onus is on the consumer to resolve ambiguities by going to the
formal product label.172

This is unacceptable, both because it requires the consumer to scrutinize
nutritional claims for any plausible alternative interpretations, and because
companies ought to bear responsibility to be clear in their marketing claims.
Accordingly, the appropriate state and federal bodies should promulgate
regulation designating ambiguities in nutritional claims as inherently misleading.
If these ambiguities cause consumers to believe a product is more healthful than
unambiguous, accurate claims suggest, they should be considered a deceptive

170. See id.

171. See Erika Kincaid, 5 Misleading Label Claims Struck Down by the FTC, FOOD DIVE (Oct.

16, 2017), https://www.fooddive.com/news/labeling-claims-ftc-misleading/507201/ [https://perma.

cc/63AU-3CGF]. 

172. See supra note 86 and accompanying text.



330 INDIANA HEALTH LAW REVIEW [Vol. 20:301

trade practice.

D. Promulgate Reasonable Advertising Regulations That Will Reduce
Exposure of Unhealthy Foods and Drinks to Children

A UK Department of Health and Social Care spokesperson describes a British
initiative along these lines: “As part of our obesity strategy to get the nation fit
and healthy, we are . . . restricting advertising of foods high in fat, salt and sugar
being shown on television before 9 pm and in paid-for advertising online, as well
as restricting less healthy food promotions in stores and online.”173

While the specifics of the British advertising restriction may or may not be
a good fit for the U.S., it provides an example of the spirit of regulation that we
should explore, and eventually adopt, to fit our own culture and legal framework
here. The goal should be to fashion public health policy that reduces the exposure
of minors to the marketing of unhealthy food products.

In fashioning regulation that fits U.S. laws and culture, lawmakers should
focus their attention on these questions: (a) how do we define less healthy food
products in terms of threshold levels of sugar, sodium, and fat that trigger
inclusion within the regulatory restriction?; and (b) what would be optimal
marketing restrictions of television and Internet advertising—in other words,
where are the lines drawn regarding when and in what media certain unhealthful
foods and drinks cannot be advertised?

While the specifics will require careful consideration, there are some obvious
advertising limitations that have the potential to reduce exposure of minors to
marketing of unhealthy products. The law should prohibit advertising of
unhealthful foods during children’s primary television viewing hours. As already
noted, this will require careful consideration and determination of what thresholds
will be developed to classify food and drink products as unhealthful.

Current advertising exposure to minors is high on both television and the
Internet.174 This means that we also need to delineate Internet site criteria that
define sites that are targeted to or that have very substantial viewing from minors
and promulgate the same advertising restrictions there as we do for television. 

E. Promulgate Reasonable Retail Regulations That Will Reduce Exposure of
Unhealthy Foods and Drinks to Children in Stores

Regulatory restriction on the shelf placement of less healthful foods and
drinks in retail stores, such as supermarkets and convenience stores, should be a
palatable regulation even for staunch proponents of individual freedoms averse
to aggressive regulation. Such limitations would leave adult consumers’ options

173. Andrew Gregory, UK Obesity Plan Will Fail Without Action on Unhealthy Food, THE

GUARDIAN (Dec. 27, 2021), https://www.theguardian.com/society/2021/dec/27/uk-obesity-strategy-

unhealthy-food-environment-report [https://perma.cc/GLZ2-9RZ7]. 

174. See Melinda Wenner Moyer, Kids as Young as 8 Are Using Social Media More Than

Ever, Study Finds, N.Y. TIMES (Mar. 20, 2022), https://www.nytimes.com/2022/03/24/well/family/

child-social-media-use.html (reporting recent increases in screen use among children).



2023] REGULATING THE MARKETING OF FOOD TO MINORS 331

entirely intact and are helpful to adult consumers in decreasing toddler pestering
for the unhealthful products that are currently intentionally placed in their view.

Such regulatory restrictions can improve overall children’s health without
costing large manufacturers significant competitive advantage or profit. How
would these restrictions work, and why would they have no negative impact on
the manufacturers?

Shelf placement regulation needs to start, as in the previous Subsection and
potentially using the same metrics, by defining the less healthful products using
a formula for added sugar, sodium, and fat content. Once these products are
defined, the law should delineate the specific product placement restrictions in
retail stores. Research is needed to specifically determine the eye-level of the
protected class, so that regulation can mandate that less healthful products be
placed above that level on shelves.

Since the market for cereals and snacks has long been dominated by large-
scale players that manufacture both more-healthful and less-healthful products,175

this proposed regulation is unlikely to impose a competitive advantage on any
manufacturer; rather, it would impose a desirable competitive disadvantage on
each manufacturer’s less healthful products, relative to their more healthful
products. And that is exactly the goal we should seek—to support the companies
while also shifting consumption, by reasonable regulatory nudge, toward the
companies’ more nutritious offerings.

Because the regulation proposed here would create threshold levels of added
sugar, sodium, and fat to distinguish more-healthful from less-healthful options,
it would encourage manufacturers to develop and support the healthful products
that qualify for the children’s eye-level shelves. Should this happen, there would
be an overall trend among manufacturers to make their sweet, child-attractive
products more healthful than they are right now.

F. Do Not Regulate the Inclusion of Toys and Prizes with Children’s Meals;
Rather, Lobby Companies to Discontinue Voluntarily the

Association of Their Meals with Toys and Prizes

As we saw earlier, San Francisco attempted to eliminate toy and prize
incentives that encourage children to ask for unhealthy food products.176

Companies have successfully circumvented the law by charging a minimum price
for the added toy, which a large majority of consumers actually do purchase.177

175. Eighty-six percent of the U.S. cereal market is concentrated among just four companies,

all of which manufacture a wide variety of products that are healthful: General Mills, Kellogg

Company, Post Consumer Brands, and Quaker Oats. Karen Perry Stillerman, How Cereal

Companies and Consumers Can Make Breakfast Better, THE EQUATION (July 24, 2019),

https://blog.ucsusa.org/karen-perry-stillerman/how-cereal-companies-and-consumers-can-make-

breakfast-better [https://perma.cc/Q4SU-YA9A]. 

176. See supra notes 102-06 and accompanying text.

177. See supra notes 107-08 and accompanying text.



332 INDIANA HEALTH LAW REVIEW [Vol. 20:301

This loophole suggests that municipalities and states should either refine
ordinances and regulations to close the loophole or focus on other ways to
improve children’s health.

The pragmatic best choice here is to choose our battles wisely and focus on
other ways to improve children’s nutrition while lobbying companies to stop
bundling meals with toys and prizes as a matter of corporate social responsibility.
While the loophole technically might be closed by prohibiting all bundling of
meals and toys, regardless of whether the toys are free or merely reduced in price,
this could be a hollow victory. It would engender consumer animus and
pushback, as parents roll their eyes at the perceived assault on perceived family
fun in fast food restaurants.

Even if we prohibit all bundling of meals and toys, including both free toys
and charging a nominal fee for toys with kids’ meals, there is still potential for
effective loopholes. For example, companies could simply sell the toys entirely
unbundled from any particular meal, thereby still making their restaurant
attractive to kids. And realistically, few of these children, once in the fast-food
restaurant, are likely to consume one of the healthful options sometimes offered,
unless so directed by their parents.

Legally attacking the bundling of unhealthful fast-food options with free toys
and prizes is a losing battle. It is likely to be unpopular with the public,
undermining support for other reasonable public health initiatives while also
being unlikely to achieve much if anything in terms of children’s nutrition. This
one is best left alone, apart from efforts to persuade companies to stop offering
toys as a matter of socially responsible business practice.

V. CONCLUSION

This Article has examined public health challenges associated with poor
nutrition, especially regarding minors. It identified company practices that
contribute to the problem and explored public health interventions that have the
potential to benefit minors. I have attempted to acknowledge tensions between
proponents of regulatory public health initiatives and opponents of such
initiatives who ground their opposition to regulation in a philosophy of individual
freedom and personal responsibility and autonomy. My goal is to be pragmatic,
intentionally avoiding any resolution of the philosophical tension itself, and
proposing practical solutions, grounded in sound scientific research,178 that can
be positioned as mutually palatable, common-sense efforts. 

My recommendations avoid consumer bans—none of the proposals eliminate
any ultimate consumer choice. While self-regulation in industry may be seen as
unrealistic,179 self-regulation is proposed only in areas where broadly embraced

178. For detailed discussion of the nature of scientifically sound nutrition research, see

generally David L. Pelletier et al., Expanding the Frontiers of Population Nutrition Research: New

Questions, New Methods, and New Approaches, 4 ADV. NUTRITION 92 (2013).

179. Individual rights proponents who are critical of regulation typically propose relying on

the marketplace to protect us, imposing pressures on industry to self-regulate as needed. Simon



2023] REGULATING THE MARKETING OF FOOD TO MINORS 333

corporate social responsibility by businesses will not likely hurt profitability.
Regulation is proposed in some areas, but not in a way that removes ultimate
consumer freedom and choice, instead nudging consumers toward more healthful
selections—something most consumers will want for their children anyway.
These proposed changes are moderate, but they might be achievable, resulting in
greater public health gains than more ideologically pure, but less pragmatically
feasible, proposals might yield.

asks, “can we trust the food industry to self-regulate?” She contends that “[s]elf-regulation

presupposes that corporations can recognize their role in society as responsible citizens and will

act accordingly. Corporations, in general, have no such ability and are, by definition, designed to

further one goal and one goal only: to increase profits for shareholders.” Michele Simon, Can Food

Companies be Trusted to Self-Regulate? An Analysis of Corporate Lobbying and Deception to

Undermine Children’s Health, 39 LOY. L.A. L. REV. 169, 171 (2006). See Allyn T. Taylor et al.,

The Increasing Weight of Regulation: Countries Combat the Global Obesity Epidemic, 90 IND. L.J.

257, 265 (2015) (arguing “self-regulatory initiatives have proven insufficient to stem the childhood

obesity epidemic, even in high-income countries where resources and political will exist to monitor

industry actions.”).