Expert: Morgan Smith - 1/5/2012

Question
My 7 year old daughter has been showing symptoms of n eating disorder. She has been seen several times at the doctors for this issue. We have recently been told that if she loses any more weight, she will be referred to an eating disorder clinic. This has been a very confusing, stressful, frightening situation for me as her mom and also for friends and family that care for her. Together with the doctor we have been trying to get to the bottom of this as we have had no idea where she ever got these thoughts from. Today she came up to me and said " mommy I know how to lose weight" shocked, I asked her what she meant. She said "I know how to lose weight, you just take a pill." I asked where she heard that from and she informed me that it was a commercial. Well I of course immediately asked what channel she was watching. She said Nickelodeon. I went in and hit the rewind button on the Directv remote, and there was a commercial for Dexatrim Max telling my 7 year old daughter that its a great way to lose weight!! On at 345 in the afternoon on during a childs show "Victorious" on a channel that is geared toward children! I am irate. I would like to know if I have any legal recourse against Nickelodeon or Dexatrim?

Answer
Dear Tonya,

Before I respond further to your question, I must make clear that I do not represent you, and cannot give you individual particularized legal advice. No attorney client relationship is created by this email. For legal advice, you should hire your own attorney, and follow their advice. My role with AllExperts is limited to providing general information and suggestions for educational or general knowledge purposes.

Before you take any action, consult with your own attorney. Speak to an attorney licensed to practice law in your state about the strengths, weaknesses, and likely outcomes of any contemplated cause of action or defense.

Your question is about liability for the contents of a commercial.

Broadcasting a commercial is a kind of speech, and is protected by the First Amendment of the United States Constitution.  Such protection is very broad, and is only limited in a few select ways.  For example, one's freedoms do not extend to telling a lie; a cliche example is falsely shouting fire in a crowded theater.  The Food & Drug Administration regulates medical claims, and takes action against medical hoaxsters when they make false claims.

Publishers, including Nickelodeon, are generally not responsible for the content of their advertisers messages since it is typically understood that those are paid messages and the responsibility of the advertiser.

So in theory, I guess you could file a suit against Dexatrim and Nickelodeon, and if you could prove that the medical claims were false you might have the begining of a recovery. I doubt that you'd get there.

Personally, I congratulate you on monitoring what your child watches, and suggest that your parenting and reaction to commercial speech your child is exposed to may be more valuable to you than any legal action you could undertake.

I hope this helps, good luck to you.

Morgan Smith
SMITH & RAVER LLP
Minneapolis, Minnesota
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