First Amendment Implications of Restricting Food and Beverage Marketing in Schools

AuthorSamantha K. Graff
Date01 January 2008
Published date01 January 2008
Subject MatterArticles
158 ANNALS, AAPSS, 615, January 2008
This article explores how the First Amendment bears
upon a school district policy restricting junk food and
soda marketing in public schools. The article highlights
a clash between two fundamental American beliefs:
that a public school should be a sheltered training
ground for democratic citizenship and that the strength
of the free market economy is dependent upon corpo-
rate access to consumers including children. The article
begins by describing the “commercial speech doc-
trine,” which explains why the First Amendment might
be implicated in a school district advertising policy. The
article then touches on actions a school district might
take without involving the First Amendment. Next, the
article distinguishes between two First Amendment
standards of review that a court could apply to a school
district advertising policy and argues that a “forum
analysis” is the appropriate approach. The article iden-
tifies three types of advertising policies that should sur-
vive a forum analysis.
Keywords: First Amendment; commercial speech; in-
school advertising; marketing to children;
commercialization of childhood; obesity;
nutrition; junk food and soda
In the American tradition, the U.S. public
school system is the “cradle of our democ-
racy.”1As envisioned by the Supreme Court,
the archetypal public school is a sheltered envi-
ronment in which teachers are entrusted to
prepare students “for participation as citizens”
by “inculcating fundamental values necessary
to the maintenance of a democratic political
system.”2Increasingly over the past few
decades, however, K-12 public schools have
thrown open their doors to commercial mar-
keters seeking to inculcate a different set of
values—those essential to the maintenance of a
consumeristic society.
Implications of
Food and
Marketing in
NOTE: Support for this research was provided by the
Robert Wood Johnson Foundation’s program, Healthy
Eating Research: Building Evidence to Prevent
Childhood Obesity. The author is grateful to Debora
Pinkas, Randolph Kline, Leslie Zellers, Linda Lye,
Susan Linn, and Professor Robert Post for their intel-
lectual contributions to this article.
DOI: 10.1177/0002716207308398
School districts allow commercial messaging on school property for a variety
of reasons, including the need to offset chronic underfunding with a non-tax-
based revenue stream as well as the desire to enlist businesses as partners in the
educational enterprise.3A less obvious but perhaps more insidious reason is that
multi-billion-dollar corporate marketing campaigns are so elemental to our free
market culture that some school districts fail to question whether an educational
environment is an appropriate place for advertising to take place.4
For their part, corporations are more than eager to pay for access to a large,
captive, demographically discrete, and impressionable audience of current and
future loyal customers.5These corporations gain entry through many routes,
which include obtaining the right to place logos or advertisements on school
grounds or facilities, contributing electronic equipment in exchange for the abil-
ity to advertise to students, providing corporate-produced “educational” materi-
als and activities, participating in fund-raising campaigns, initiating incentive
programs that reward students who succeed in specified activities, sponsoring
programs and activities, privatizing certain school programs, and selling and pro-
moting a set of brands to the exclusion of all other brands in the school district.6
Candy, fast food, and soda manufacturers are leading the charge into the pub-
lic schools.7It would not be unusual for a middle school student to ride a school
bus covered with Burger King advertisements, start each day at school watching a
Channel One newscast sprinkled with junk food and soda commercials, learn
math with exercise books and candy provided by Jelly Belly, receive a Pizza Hut
gift certificate as a reward for reading, play basketball in the school gym under a
Pepsi billboard, lunch on Taco Bell nachos dispensed in the school cafeteria, and
snack on junk food and soda products exclusively provided by a single manufac-
turer through branded vending machines scattered around the school.8Not even
kindergarteners are immune from the onslaught of junk food and soda marketing
at school. For example, the Coca-Cola Company has been known to “bring books
to life” at elementary schools willing to host a visit by the Coca-Cola Story Chasers
Reading Mobile,9and the McDonald’s Corporation will send Ronald McDonald
into elementary schools to be an “ambassador for an active, balanced lifestyle.”10
Schools undoubtedly have a powerful influence on how students eat.11 Studies
have shown a direct correlation between the school food environment and the
consumption of fruits, vegetables, and dietary fat as well as the body mass index
of students.12 Thus, the ubiquity on public school campuses of nonnutritious food
and drinks, and of messages promoting their consumption, is of grave concern to
many parents, teachers, administrators, and nutrition advocates. By allowing junk
food and soda companies to saturate the school atmosphere with their products
Samantha K. Graff is a staff attorney with Public Health Law & Policy (PHLP), a project of the
Public Health Institute, in Oakland, California. PHLP works with leaders in government and
the nonprofit sector to create innovative policy solutions to critical public health challenges.
She has published on law and public health topics in several law journals. She received a J.D.
from the Yale Law School and an A.B. from Harvard University.

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