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If we were to take the Supreme Court at its word and consider only speech proposing a commercial transaction to be commercial speech, see Cincinnati, 507 U.S. 410, 423 (1993), then I question whether such speech can meets the definition of commercial speech because there can be no expectation of a commercial transaction. Young children lack the financial and legal means to contract for most products. See Restatement of the Law, Second, Contracts, § 12 Capacity to Contract (1981) (An infant lacks the “legal capacity to incur contractual duties.”); Restatement of the Law, Second, Contracts, § 14 Infants (1981) (“Unless a statute provides otherwise, a natural person has the capacity to incur only voidable contractual duties until the beginning of the day before the person's eighteenth birthday.”). Speech seeking to make profit and directed at children is often relating to the economic interest of the commercial actor and the child's guardian, who has the capacity to purchase the product. The child — the recipient and intended audience of the speech — is not on the purchasing side of the transaction. A child must rely on the parent to contractually purchase the product and therefore the recipient of the speech lacks an economic interest in the communication. See Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 561 (1980). A commercial actor cannot have a reasonable expectation of a completed commercial transaction with the intended receiver of its speech about its products. However, the Court has increasingly accepted a variety of communication as commercial speech rather than strictly relying on its definition.Google Scholar

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See Bates v. Arizona, 433 U.S. 350, 383 n.37 (1977)).Google Scholar

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Id., at 191–192 (“A finding of materiality is also a finding that injury is likely to exist because of the representation, omission, sales practice, or marketing technique…. Injury exists if consumers would have chosen differently but for the deception. If different choices are likely, the claim is material, and injury is likely as well. Thus, injury and materiality are different names for the same concept.”).Google Scholar

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But see, Florida Bar v. Went For It, 515 U.S. 618 (1995) (Upholding a 30 day commercial speech restriction to protect the personal privacy of accident victims and their families from intrusive letters by attorneys).Google Scholar

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See also, The World Health Organization's Global Strategy on Diet, Physical Activity and Health was endorsed by the 57th World Health Assembly in 2004 (recommending that “food and beverage advertisements should not exploit children's inexperience or credulity,” should discourage messages that promote less healthful dietary practices, and should encourage positive healthful messages).Google Scholar

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Cf. Florida Bar v. Went for It, Inc., 515 U.S. 618, 628 (1995) (stating the Court does not require “empirical data” under prong three); but see Edenfield v. Fane, 507 US 761 (1992) (striking ban on in-person solicitation by CPAs because the board presented not evidence); see also, 44 Liquormart v. R.I., 517 U.S. 484, 505 (1996) (ban on advertising alcohol prices struck down because the state did not present evidence of its potential efficacy).Google Scholar

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