Concessions Welcome, but Fall Short of What’s Needed on Federal Food Ad Principles

The Federal Trade Commission (FTC) delivered a gift to Big Food and Beverage at last week’s House Energy and Commerce hearing on self-regulation of children-directed advertising. Or at least that’s what the media and activist supporters of the Independent Working Group’s (IWG) child-directed advertising “principles” would have you believe.

The concessions FTC made, described in a WLF Legal Pulse post last week, are certainly welcome and merited. But FTC and others supportive of the IWG’s draft during the hearing gave no indication that a full pullback on the principles was being considered.

Anything short of that – a withdrawal of the current draft and a return to the drawing board – is unacceptable. Here’s three reasons why.

First, the IWG draft completely fails to fulfill the mandate of the U.S. Senate when it created the IWG.  As WLF wrote in its comments to the IWG: “The Working Group has issued a document that goes far beyond the recommendations to Congress contemplated by the 2009 legislation that created the Working Group.”  Energy & Commerce Committee Chairman Fred Upton echoed this point in his opening statement at the House hearing last week: “The Senate report language called for a study and a report to Congress. We have neither a study nor a report; rather, we have a quasi-regulatory maneuver.” The IWG agencies and their staffs have expended untold amounts of taxpayer money conducting their work. The least they can do is produce what the Senate asked for.

Second, no matter how many concessions the IWG makes, the final draft will likely still set out specific nutritional guidelines for food and beverage companies to meet; if they cannot be met, companies are urged to curtail advertising to which children. The IWG, as well as supportive politicians, activists, law professors assure us that these principles are thoroughly and benignly voluntary.

We must ask in response: are you regulated by the FTC, the Department of Agriculture, and the Department of Health and Human Services? Are you aware of the overarching authority those agencies have over companies’ ability to create, market, and sell products, a process which nourishes consumers and employs millions of Americans? When these agencies make “suggestions,” regulated businesses take them very seriously.

As for the argument that “voluntary” guidelines cannot infringe upon advertisers’ First Amendment rights, we share the opinion of highly respected law professors like Kathleen Sullivan, former dean of Stanford Law School. She wrote in an analysis attached to Viacom’s comments to the IWG:

[T]he Supreme Court has long invalidated laws directed to altering the content of private speech in a direction favored by the government—even where the mode of censorship is informal and even where the acceptance of the speech-restrictive conditions is nominally voluntary.”

Finally, there are two related factors that proponents of the IWG’s robust draft principles either besmirch, or refuse to fully acknowledge, that effectively undercut the need for government’s principles/suggestions. First, food and beverage makers have steadily improved their self-regulatory efforts on children-directed advertising over the last several years. As the Better Business Bureau’s Elaine Kolish recounted in a Legal Pulse interview, tough but fair new standards have been agreed upon and will go into effect in 2013. Dr. Vladeck acknowledged the importance of self-regulation in his House testimony, but activists continue to dismiss the concept.

Second, from a very basic, common-sense perspective, why are such explicit nutrition and marketing principles needed in the first place? Activists and regulators wring their hands about kids being exposed to ads for foods and drinks that are “bad” for them. But how many kids between the ages of 2 and 12 actually make such purchases? The premise behind the guidelines is deeply flawed and almost insulting: parents need the government’s help to say “no” to their children. They need the government to lean on food and beverage companies so they stop advertising food and drinks that kids enjoy. If the information is not out there, then it will be easier for parents to get their kids to eat more healthy foods. Such an idea has no scientific support, and is antithetical to the freedom of choice that all American consumers cherish.

One thought on “Concessions Welcome, but Fall Short of What’s Needed on Federal Food Ad Principles

  1. Pingback: Two New WLF Papers Detail Overlooked Consequences of Federal Food Advertising “Principles” Draft « The Legal Pulse

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