Federal Law

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Children's Food Marketing Study Calls for Industry and Government Action
Jeffrey S. Edelstein, Manatt, Phelps & Phillips, LLP, New York
E-mail: jedelstein@manatt.com

Introduction
The Report
Recommendations
Industry Response
Significance


Introduction
In a far-reaching report on childhood obesity, a government study blamed food and beverage marketing that targets children 12 and under for encouraging them to eat and drink high-calorie and nutritionally deficient foods, and thereby contributing to increasing childhood obesity rates. The report made a number of recommendations to the food industry to address the problem, and urged Congress to pass legislation if the industry does not voluntarily respond to its requests.

The Report
The report, entitled “Food Marketing to Children and Youth: Threat or Opportunity,” concluded that “Ample information and studies [indicate] that television advertising influences the food preferences, purchase requests and diets at least of children under 12 and is associated with the increased rates of obesity among children and youth.” The report was issued by the National Academy of Science’s Institute of Medicine on December 6, 2005. The study was requested by Sen. Tom Harkin, D-Iowa, a critic of food and fast-food advertising.

According to the report, children and teenagers represent a primary focus of food and beverage marketing initiatives. More than $10 billion per year is spent for all types of food and beverage marketing to children and teenagers. “Moreover, although some very recent public announcements by some in the industry suggest an interest in change, the preponderance of the products introduced and marketed for children and teenagers have been high in total calories, sugars, salt, fat, and low in nutrients.” The report states that 80 percent to 97 percent of the food products aimed at children and teenagers are of “poor nutritional quality.” The report notes that four of the top ten items children say they buy without parental consent are foods and drinks.

Recommendations
The report advises the food industry to produce and market healthier options, while at the same time calling on the government to bolster nutritional standards, incentives, and public policies to help the industry improve marketing practices. But if those efforts fail to produce substantial change within two years, the report calls for legislative action.

The report proposes an industry-wide rating and labeling system to clearly identify the nutritional quality of food and beverage produces. In addition, it urges the Children’s Advertising Review Unit (“CARU”), the self-regulatory body of the advertising industry for children’s advertising, to expand and apply guidelines to Internet, cell phone, and product placement advertising.

“If voluntary efforts related to advertising during children’s programming are unsuccessful in shifting the emphasis away from high-calorie and low-nutrition foods and beverages to advertising of healthful foods and beverages, Congress should enact legislation mandating the shift on both broadcast and cable television,” the report says.

Industry Response
Marketing and food industry officials described the report as flawed and disputed its conclusions. The Grocery Manufacturers Association (GMA), which represents the leading food and beverage companies, said in a statement that GMA members “have already undertaken many of the committee’s recommendations.” The group stated that that 98 percent of its members have improved the nutrition profile of their products, with 83 percent improving information on labels. More than half are cutting portion sizes for calorie control and more than 90 percent are promoting a healthy lifestyle.

For its part, the American Advertising Federation pointed out that CARU has adjudicated more than 500 cases in child-targeted ads and reached favorable resolutions in more than 95 percent of those cases. Recently, both Kellogg and Kraft agreed to discontinue ads in children’s publications after CARU found them misleading.

Still, marketers appear worried that the report could be regarded in the same way as the groundbreaking 1964 Surgeon General’s report on tobacco, fueling a new initiative for legislative action on food advertising. One of the report’s recommendations, in fact, echoed one used in the battle against Joe Camel: Marketers should stop using licensed characters except to promote food and beverages “that support healthful diets.”

Significance
Marketers have criticized the report on numerous grounds. They contend that the report fails to take into consideration recent changes in food marketing, is based on no new research, and doesn’t adequately explain how marketing can be a culprit in childhood obesity, since obesity rates among children continue to rise even as kid-targeted advertising declines. They also question the constitutionality of any legislation that would require advertisers to differentiate between good products and bad products.

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