By Alexis M. Etow | 61 Am. U. L. Rev. 1503 (2012)

The newest approach to discouraging children’s unhealthy eating habits, amidst increasing rates of childhood obesity and other diet-related diseases, seeks to ban something that is not even edible. In 2010, San Francisco enacted the Healthy Food Incentives Ordinance, which prohibits toys in kids’ meals if the meals do not meet certain nutritional requirements.

Notwithstanding the Ordinance’s impact on interstate commerce or potential infringement on companies’ commercial speech rights and on parents’ rights to determine what their children eat, this Comment argues that the Ordinance does not violate the dormant Commerce Clause, the First Amendment, or substantive due process. The irony is that although the Ordinance likely avoids the constitutional hurdles that hindered earlier measures aimed at childhood obesity, it intrudes on civil liberties more than its predecessors. This Comment analyzes the legality of the Healthy Food Incentives Ordinance to understand its implications on subsequent legislation aimed at combating childhood obesity and on the progression of public health law.

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