Is Advertising to Children Like Taking Candy From A Baby? FTC Issues Report and Recommendations on Food Marketing to Kids

Late last month, a coalition of federal agencies published a preliminary proposal to guide the food industry's self-regulatory efforts with respect to the marketing of food to children aged 2-17. Congress created the Interagency Working Group on Food Marketed to Children ("Working Group") as part of the 2009 Omnibus Appropriations Act (H.R. 1105). The Working Group is comprised of members from the Food and Drug Administration, the Centers for Disease Control and Prevention, the United States Department of Agriculture, and the Federal Trade Commission. The draft proposal sets forth two principles for ten categories of food most heavily marketed to children (such as cereal, candy, dairy, and carbonated and noncarbonated beverages) and suggests that these principles be met by 2016: Principle A: Foods marketed to children should make a meaningful contribution to a healthful diet through inclusion of food groups such as juice, whole grains, low fat or fat free dairy, lean meat or fish, beans, nuts and eggs. There are two different suggested approaches to measure whether the contribution is meaningful. The first option looks to whether 50% by weight of the food or dish is comprised of the relevant groups while the second sets specific goals for one or more of the relevant food groups. Principle B: Foods marketed to children should minimize consumption of foods with significant amounts of nutrients that could have a negative impact on health or weight — specifically, sodium, saturated fat, trans fat, and added sugars. Specific targets are proposed for each of these. Because the First Amendment constraints on the government's ability to curb commercial speech, all of the Working Group's proposals are voluntary and, according to the FTC, are not intended to be a precursor to a rulemaking effort. Nevertheless, in its statement on the proposal, the FTC acknowledged that the proposal sets "ambitious goals" that will be "challenging for the industry to meet." This is particularly true because the proposed definitions for what activities by food companies constitute "marketing," which are adopted from a 2006 FTC study of youth-directed food marketing, are "substantially broader" than the definitions that currently govern the industry's self-regulatory programs and encompass over 20 forms of activity. Due to these concerns about the breadth of the definition of "marketing," the Working Group is seeking comments about whether the final recommendations of the proposal should be narrower for adolescents aged 12-17 than for children aged 2-11. The FTC, which will review comments related to definitions in the proposal, seems to be receptive to different rules for different ages. In its statement about the proposal, it notes that adolescents are more capable of understanding the intent of marketing, the evidence of the influence of food marketing on adolescent behavior is inconclusive, and restrictions on marketing to adolescents are more likely to impact marketing that reaches a substantial adult audience. The FTC is holding an information session on the proposal on May 24, 2011 at the Department of Health and Human Services in Washington, D.C. The deadline for written comments on the proposed principles has been extended to July 14, 2011. – Randy Shaheen and Daniel Stuart

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