Richard A. Daynard, JD, PhD University Distinguished Professor Northeastern University School of Law President, Public Health Advocacy Institute

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1 Restricting Food Marketing to Kids: The U.S. Approach Richard A. Daynard, JD, PhD University Distinguished Professor Northeastern University School of Law President, Public Health Advocacy Institute

2 U.S. Food Marketing Oversight & Regulation Formal regulation Federal State Local Industry self-regulation Trade associations Individual companies Informal regulation Private litigation

3 Formal Regulation: Federal Level FEDERAL TRADE COMMISSION -Monitor food industry spending on food marketing to youth (0-18 yrs). (Expenditure Reports for 2006 and 2009). -Regulate children s privacy online in partnership with private industry through safe harbor programs authorized by statute. Protects children 12 and under. (Children s Online Privacy Protection Act of 1998). FEDERAL COMMUNICATIONS COMMISSION -Limit the number of minutes ( min/hr) dedicated to advertisements during children s television programming. Protects children 12 and under. (Children s Television Act (CTA) of 1990). -Ban on host selling. (CTA 1990).

4 Federal Level U. S. DEPARTMENT OF AGRICULTURE Recently limited snack foods sold in schools to those meeting National School Lunch Programs guidelines with respect to nutrition. Last week issued proposed rules preventing marketing in schools of snacks that could not be sold there. Each school district will be required to incorporate this is its Wellness Policy. FOOD AND DRUG ADMINISTRATION Last week announced proposed rule changing package labeling requirements to (1) bring portion size to modern (supersized) standards, (2) put in large numbers the calories/portion size, and (3) insert an additional line for added sugars

5 Formal Regulation: State Level CHILDCARE LICENSING -In 2008, 17 states regulated screen time in child care centers and 15 states regulated screen time in family child care homes. (Benjamin et al. 2008). IN-SCHOOL FOOD MARKETING -One state (Maine) prohibits brand-specific marketing of Foods of Minimal Nutritional Value in school buildings (K-12). (Polacsek et al. 2012). BANS ON LOCAL REGULATION OF FOOD MARKETING -Some states (e.g. AZ, FL, LA) prohibit local governments from regulating any form of food marketing in their communities. Power to regulate is reserved to the state with no intention of actually doing so. This is NON-regulation, with a vengeance.

6 Formal Regulation: Local Level TOY PREMIUMS IN CHILDREN S MEALS -The City and County of San Francisco, CA and Santa Clara County, CA enacted local ordinances requiring that fast food children s meals that include a free toy premium meet specified nutrition criteria. -McDonald s sidestepped the ordinance by collecting a 10 cent donation for each toy. THESE REMAIN THE ONLY FORMAL ATTEMPTS TO REGULATE PESTER POWER.

7 Industry Self-Regulation The Council of Better Business Bureaus administers the two primary self-regulatory programs for marketing to children: -Children s Advertising Review Unit (CARU)(est. 1974) CARU members pledge to follow guidelines about how products are marketed to children. - Children s Food and Beverage Advertising Initiative (CFBAI) (est. 2006) CFBAI members pledge to follow guidelines for the nutritional quality of foods marketed to children. -Under pressure from threatened consumer protection litigation, manufacturers agreed with Clinton Foundation in 2006 to remove all carbonated sodas from lower schools, and all-but-diet sodas from high schools. -Individual companies such as McDonald s have also announced policies that would improve the nutritional quality of advertised foods: questionable follow-through. -An effort by the federal government to convene an Interagency Working Group to develop a set of voluntary nutrition criteria for foods marketed to children was authorized by Congress in 2009 and failed in 2011 when Congress cut funding for the endeavor (Dietz 2013).

8 Informal Regulation: Private Litigation Two cases involving food marketing to children have been filed since the obesity crisis began. Both targeted McDonald s Corporation and failed: Pelman v. McDonald s Corp. (filed in 2003) included claims under New York law that McDonald s advertising misrepresented the nutritional quality of its children s meals to consumers by implying they should be eaten every day. The case failed in large part because plaintiffs did not allege facts sufficient to support a cause of action. Pelman v. McDonald's Corp., No , 2011 WL , 272 F.R.D. 82 (S.D.N.Y. 2010) (denying class certification). Parham v. McDonald s Corp. (filed in 2010) alleged that tactics used to market McDonald s children s meals, including pester power, were unlawful under California law. The case was dismissed with prejudice. (Parham v. McDonald's Corp. et al., Judgment of Dismissal (No. CGC Cal. Super. Ct., S.F. County May 23, 2012)). McDonald s arguments centered on parental responsibility and the lack of any economic injury to parents.

9 In Summary -No meaningful legislation regulating marketing to children has been enacted since the Children s Television Act of 1990 and the Children s Online Privacy Protection Act of 1998, with the exception of provisions in agricultural legislation requires Wellness Policies in schools. -Some progress through actions by administrative agencies on the in-school food environment and perhaps on package labeling (but addressed to adults, not kids) -Just one state and two counties have used their power to expressly regulate marketing to children. States have focused on restricting television exposure in childcare settings. -Some states now actually ban local regulation of food marketing. -Litigation has yet to gain traction, though the fear of litigation has motivated some voluntary industry measures. INDUSTRY SELF-REGULATION REMAINS THE DOMINANT APPROACH

10 Why Is There So Little Formal Regulation? Government is not the solution. Government is the problem. -Ronald Reagan, President, (known as The Great Communicator )

11 The Food Industry Federal, state and local efforts to improve food marketing, tax sugary drinks, and improve nutrition labeling have faced intense, well-financed, food industry opposition.

12 Legal Context Congress shall make no law abridging the freedom of speech, or of the press. -U.S. Const. amend I Commercial speech like food marketing is now granted a level of protection under the First Amendment. Regulations that advance a substantial public health goal and are tailored to fit the state s interests have been upheld, whereas outright bans on marketing for harmful products are problematic. However, the fear of First Amendment legal attacks casts a pall over all discussions of marketing regulation.

13 Where all this leaves us: Youth Are Exposed to Food Ads on TV Per Day (Powell et al. 2013)

14 Food Companies Are Rapidly Expanding Their Use of Digital Marketing Tactics

15 Bottom Line: the US is NOT an appropriate model for regulating food marketing to kids, since we do very little such regulation and what we do does not have much effect.

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