The Federal Trade Commission (FTC), Jon Leibowitz Hearing, Food Freedom and the First Amendment


On Tuesday, November 15, the Senate Commerce Committee will hold a full committee hearing on the nomination of Jon Leibowitz  to be Federal Trade Commissioner.  Mr. Leibowitz’s nomination is for reappointment as FTC chairman.  

In 2007, Mr. Leibowitz gave a paper entitled "Childhood Obesity and the Obligations of Food Marketers or Whether or Not You Are Part of the Problem, You Need to Be Part of the Solution "at an HHS forum on childhood obesity.  In it, he quite correctly points out the obesity epidemic America is facing and how it threatens to overwhelm our healthcare system.  He states, "An estimated 17 percent of American children and teens two to 19 years old are overweight- nearly 13 million kids."  Those figures are staggering, and the health consequences of the large number of obese Americans will speed up the bankruptcy of the American medical system (private and government-run insurance systems).  He is also correct to point out the indoctrination Americans, specifically children, receive in terms of food, especially around children's tv shows (it's called advertising and marketing).  In his speech, he did not call for banning certain food commercials during children's shows but for the industry itself to self-regulate and become part of the solution to the obesity problem.  

Since his speech in 2007, the Interagency Working Group on Food Marketed to Children (IWG) created a draft proposal for voluntary principles to guide industry self-regulatory efforts to improve the nutritional profile of foods marketed to children.  The IWG is made up of the Federal Trade Commission (FTC), the Centers for Disease Control and Prevention (CDC), the Food and Drug Administration (FDA), and the United States Department of Agriculture (USDA). 

A few questions must be addressed as his re-nomination is considered and as we as a country decide who makes decisions about the types of food we can and should eat, as well as which appropriate, if any, restrictions, should be put on private "legal" companies and the marketing of their goods and services.

1. Is it the proper role of the Federal Government to determine what is appropriate to eat for any American?  This question is especially important in light of the special interests and opaque science which determines the USDA food pyramid/plate, which itself determines much of federal food policy.   Adele Hite (Ph.D. candidate) of the Healthy Nation Coalition explains why the USDA Food Pyramid has lead to the obesity epidemic.

2.  Should the Federal Government create 'guidelines' for any industry, including the food industry and its marketing of its products?  These guidelines are "voluntary,"  but  as Mr. Leibowitz stated in his 2007 speech, "you could call that the carrot and stick approach-or the carrot stick approach" (referring to voluntary guidelines by industry).  What I infer from his comments is that voluntary guidelines (created by the Federal Government working with some member of the industry) are intended to coerce the rest of the industry to adopt said guidelines, or else, due to "self-regulation" failure, the Federal Government will need to regulate. (Dr. Amerling explains why guidelines are problematic, not objective, and based on special interests.)

3.  What authority does the FTC actually have in restricting food advertisements to children?  

4.  What role did the FTC play in creating the "guidelines"?  What authority does the FTC have to decide on questions of nutrition and science?  

5.  Is the FTC, in helping to create so-called  "guidelines," violating the free speech rights of American businesses and consumers?   Do those "guidelines" stifle free expression and the ability of American businesses to oppose the guidelines out of regulatory fears?  Do they impair consumer's right to hear as set out by the Supreme Court in the Virginia Consumer Citizens Council v Virginia Pharmacy Board? As Constitutional Scholar Bruce Fein said, "As we have learned through experience, voluntary guidelines promulgated by government regulators are indistinguishable from government mandates that should be constrained by the United States Constitution.  The regulatory weapon that may be employed covertly as retaliation against the recalcitrant make industry compliance with guidelines no more voluntary than yielding a wallet to a highwayman." 

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