ATR Opposes S. 5026, the So-Called “Childhood Diabetes Reduction Act”

On Wednesday, the Senate HELP Committee will mark up S. 5026, the Childhood Diabetes Reduction Act – legislation led by Senator Bernie Sanders (I-Vt.) that hands Washington sweeping new authority over food labels and food advertising. Americans for Tax Reform urges lawmakers to reject it. While well-intentioned, this bill would increase Americans’ grocery bill, violate free speech rights, and replace parents’ judgment with the government’s.

The bill directs the FDA to slap bold, boxed warnings on any food or beverage the Secretary decides contains too much sugar, sodium, saturated fat, or a “non-sugar sweetener” and on products that meet the government’s definition of “ultra-processed.” Notably, that definition doesn’t exist yet. The bill tells HHS to write it later, after the National Academies produces a report, then gives the agency broad discretion to fill in the blanks. Under this bill, Congress would literally be voting to regulate a category it hasn’t yet defined and has ceded its authority to define.

Rather than informing shoppers, the label is designed to alarm them, resembling a public-health hazard warning. For popular items, often occasional treats, labels will look more like alcohol containers and cigarette packs. Want a bag of chips? Don’t forget, Uncle Sam is watching.

Title II goes even further, banning “child-directed advertising” for a category of foods the FTC and FDA will jointly define. In doing so, the bill restores the FTC’s rulemaking authority under Section 5 of the FTC Act and Magnuson-Moss. This is the same authority Congress stripped from the Commission in 1980 after its infamous attempt to ban children’s advertising outright. At the time, this was considered such a gross government overreach that the media dubbed the FTC the “National Nanny” and the effort as the “kid vid crusade.”

Once the government is given this authority for junk food, there is no principled reason it stays confined to that.

Consumers will pay for these new mandates. Manufacturers facing new packaging, reformulation, and legal-compliance costs will not eat those costs. Instead, they’ll pass them to consumers, disproportionately hitting the lower- and middle-income families the bill’s sponsors claim to be protecting.  

Both the warning-label mandate and the ad ban violate free speech rights. The warning-label mandate is compelled speech. In other words, the government forcing a private company to carry the government’s message on its own product, in the government’s chosen language and format. Courts do allow some compelled commercial disclosures, but only when they’re purely factual, uncontroversial, and no more burdensome than necessary to prevent consumer deception. A bold, boxed label designed to evoke a hazard warning because a box of cookies contains sugar is an entirely different question and will be difficult to defend on legal grounds.

The ad ban is even more egregious. Banning truthful advertising for a lawful product is a direct restriction on commercial speech, and the Supreme Court’s test for that kind of restriction requires the government to show the ban directly advances a substantial interest and reaches no further than necessary. Not only is there virtually no evidence that the ad ban will achieve its goal (lowering childhood obesity), but it clearly reaches further than “necessary.”

A law being well-intentioned doesn’t mean it can’t be unconstitutional. This bill hands regulators the power to compel speech and ban speech based on standards (like “ultra-processed”) that don’t even exist yet. While provisions like these may be struck down at some point, it will only happen after companies spend years complying at taxpayers’ expense.

Deciding what a child eats is a parent’s job, not the government’s. This bill requires lawmakers to address the long-asked question about what the role of the state is and what the role of the family is. Lawmakers who believe parents have ultimate authority over their household should not give in to slippery slope policies like this.

A national ad-ban regime treats every household as incapable of making nutrition calls, substituting a Washington bureaucrat’s judgment for a parent’s. Of course, the state has a role in policing fraud and ensuring food is safe at the base level. However, it does not have a role in deciding which foods are too persuasive to advertise to someone else’s kids. Once Congress accepts that premise, the line between the government’s job and the family’s job gets harder to draw back.

It is so easy to give policies like these the green light. They are well-intentioned, attempt to address the very real problem of childhood obesity, and satisfy the urge to act. Lawmakers, however, are entrusted to not give into these whims, particularly when the policy is ineffective in its goal and, ultimately, destructive – not only to Americans’ pocketbooks, but to our valued institutions.

Members who are serious about fiscal restraint and limited government should oppose S. 5026, the Childhood Diabetes Reduction Act, in the HELP Committee’s upcoming markup.