by Shreema Mehta

The New Standard

May 8, 2006

Consumer advocates are slamming a recent federal government report on the junk-food industry's marketing to children, saying it ignores the influence of advertising on kids' health and continues the failing system of self-regulation.

The Federal Trade Commission (FTC) recently released a report in response to soaring rates of childhood obesity. But it does not propose to regulate commercials aimed at children; instead it merely encourages companies to regulate themselves.

The FTC does acknowledge that junk-food marketing could be a factor in the percentage of children who are overweight. The Centers for Disease Control (CDC) reports that 19 percent of children between the ages of six and eleven are overweight. But the Trade Commission concluded that self-regulation is enough to reduce the harmful effects of junk-food marketing, since some companies have taken recent steps to market healthier versions of their products to kids.

In 2004, the food industry spent about $10 billion on advertisements aimed at children, according to the federal government's Institute of Medicine, which also released a report on junk-food marketing last year. The Institute found that only 20 percent of these funds went to conventional print ads and radio and television spots; the industry is spending the rest on new tactics such as product placement in TV programs and movies, and on Internet "viral marketing" in which people are paid to create buzz about a product on websites and blogs.

The FTC's recommendations were based on information gleaned from a 2005 conference, to which the agency invited speakers ranging from General Mills and Coca-Cola representatives to marketing and nutrition professors.

In its report on the workshop, the agency concluded that "members of the food industry and the media are taking steps to address childhood obesity" by implementing "a variety of promising initiatives that use the power of the marketplace to encourage children to eat better and exercise more."

The report recommends that food companies "shift their marketing to children to their more nutritious, lower-calorie products" and set "minimum nutritional standards for the foods they market to children," without any suggestions on what the minimum should be.

Susan Linn, associate director of the Media Center at Harvard University's Judge Baker Children's Center, also spoke at the July 2005 FTC conference on which the report was based.


"Essentially, it was a PR opportunity for the food industry," said Linn, who is also affiliated with Campaign for a Commercial-Free Childhood. "It's where they announced all their new efforts to promote exercise and what they would do to market health food."

But Linn told The NewStandard that "self-regulation has clearly failed." She said the food industry has been self-regulating for the past 30 years under the Children's Advertising Review Unit – a body within the advertising industry. "It's the government, not corporations, that should be the guardian of public health," she said.

Tom Pahl, assistant director with the FTC's Bureau of Consumer Protection, said the agency did not propose regulations on marketing because they are impractical to enforce and risk violating the industry's right to commercial speech.

"You have a fair number of adults watching TV at the same time [as kids]," Pahl told TNS. "You'd also restrict a lot of speech directed at adults watching the program."

The FTC report cited a 2001 Supreme Court decision, which held that the Massachusetts state attorney general violated tobacco companies' right to free speech by prohibiting outdoor tobacco advertising within 1,000 feet of schools, playgrounds and parks.

David Hudson is a research attorney with the First Amendment Center, a think tank that studies cases and issues relating to the amendment. He said the 2001 decision continued a trend by which the Supreme Court provides ever-greater speech protections to corporations.

Hudson said consumer groups looking to impose regulations on food marketing face even greater obstacles than tobacco companies.

"It's not illegal to sell food to minors," Hudson noted.

But public-health attorney Michele Simon argues that it is legally feasible to place restrictions on junk-food advertising, especially when it is clearly aimed at children. The problem with the Massachusetts case, Simon said, is that the court decided the restriction was too broad and blocked advertisements to adults in the 1,000-feet range as well.

"But there are ways in which we can regulate food marketing that is more specific and more targeted," said Simon, who also runs Center for Informed Food Choices, a food and politics website.

The FTC's Pahl agreed that with the rise of niche television audiences, regulations could be more specific.

"In the late '70s, you had network TV, public TV, maybe four or five stations," he said. "Now you've got 100 stations. If you look at how the audience composition breaks out, you probably get an audience that's far more closely tied to what they're watching." Still, he added, "our initial look is that we think we still have the same problems."

Pahl said the FTC will continue collaborating with the food industry and monitoring its advertising. The FTC has not determined what actions it will take if companies do not follow through on recommendations, he noted.

But the FTC's inaction has prompted consumer-interest groups to pursue other avenues to reduce the junk-food industry's marketing to children, including working to convince school boards to cut advertisements inside schools.

Seattle School Board President Brita Butler-Wall helped start an organization to remove advertisements on walls and vending machines in city schools and prohibit the airing of Channel One News, an advertisement-laden program played in many of the nation's classrooms.

"We built up an organization of 2,000 people and allied organizations, and we put a lot of pressure on the school board," she said. "We did a walk-through of 30 Seattle public schools and wrote up the results so [school board officials] could see how much runaway commercialism is in the schools."

Some advocacy groups seek to target advertisers directly through litigation.

Stephen Gardner, an attorney with the Center for Science in the Public Interest (CSPI), collaborated with the Campaign for a Commercial Free Childhood in preparing a lawsuit against Viacom and Kellogg, accusing them of engaging in deceptive advertising. The lawsuit calls for an end to junk food commercials "directly before, during, or directly after" Nick Jr., the line of young children's programming on Viacom channel Nickelodeon. The group sent an intent-to-sue letter to Kellogg and Viacom this January.

"Kids around the age of eight have little or no idea of what a commercial is, he said. "A commercial is in essence, a very short Sponge Bob show… At a very tender age in their intellectual development, they are being imprinted with a message… they are brainwashed into wanting junk."

Gardner said Kellogg started a round of discussions with CSPI to discuss the legal claims of deception and possibly hammer out a compromise. Because of Kellogg's willingness to meet with them, Gardner said his organization was holding off on the threat to sue for now.

However, Nickelodeon was not as willing to negotiate. In a letter responding to CSPI's intent to sue, attorneys for the channel said CSPI's claims that Nickelodeon airs deceptive commercials and the $1 billion in damages the group seeks are unwarranted.

While the lawsuit seems like a long shot, Gardner said similar legal threats helped propel health advocates' latest victory: Last week the Alliance for a Healthier Generation announced it brokered a deal with Coke, Pepsi and the American Beverage Association to pull non-diet sodas from the nation's schools. The Alliance is a partnership between the American Heart Association and the William J. Clinton Foundation.

Gardner said CSPI, the Public Health Advocacy Institute and other attorneys had been negotiating with soda companies since last November after threatening to sue them for selling high-calorie beverages in schools.

Butler-Wall of Seattle said the voluntary move shows that soda companies were "scrambling" to preserve their reputations after years of attack.

"They've been under attack by our organization and several organizations," she said. "They know people are increasingly aware that we can't afford to raise another generation of unhealthy kids."