The ubiquity on public school campuses of non-nutritious food and drinks, and of messages promoting their consumption, is of grave concern to many parents, teachers, administrators, and nutrition advocates. Schools undoubtedly have a powerful influence on how students eat. By allowing junk food and soda companies to saturate the school atmosphere with their products and messages, schools may be not only undermining their efforts to teach students about good nutrition but also fueling the American childhood obesity epidemic.

Across the country, there is increasing interest in restricting non-nutritious food and beverage marketing on public school campuses. A school district that wants to counteract the pervasiveness of junk food and soda manufacturers at school may be inhibited, however, not only by monetary and political pressures but also by legal questions related to the First Amendment.

This paper seeks to demystify how the First Amendment bears upon efforts to restrict food and beverage marketing in public schools. The paper begins with a brief explanation of why the First Amendment might be implicated in a school district policy to restrict junk food and soda marketing on school grounds. The paper then touches on two actions a school district might take without involving the First Amendment: forbid the sale of non-nutritious products without forbidding advertising for the products; and enter into individual contracts with vendors that proscribe certain sales and advertising practices.

Next, the paper describes the workings of a “forum analysis,” which is the legal test that a court would likely use to evaluate a school district advertising policy that is challenged on First Amendment grounds. The paper determines that there are three types of advertising policies that should survive judicial review under a forum analysis: (1) a ban on all advertising on campus; (2) a ban on all food and beverage advertising on campus; or (3) or a ban on advertising on campus for those food and drinks that are not allowed to be sold on campus.

The paper concludes that public school districts can rest assured that they have a range of policy options to counteract the pervasiveness of junk food and soda manufacturers on campus without violating the First Amendment.

NPLAN's other advertising tools include:  

• Restricting Food and Beverage Advertising in Schools, a fact sheet for school personnel and advocates outlining steps and considerations in limiting food and beverage advertising on campus

• Model Policy Limiting All Food and Beverage Advertising, a sample policy restricting the advertising of all foods and beverages on school campuses

• District Policy Restricting the Advertising of Foods and Beverages Not Permitted to be Sold on School Grounds, an alternative policy allowing advertising for products that can be sold on school property