Does FTC’s Pursuit of More Food, Drink Marketing Info Signal Commercial Speech Command and Control?

Guest Commentary

Joseph J. Lewczak , Davis & Gilbert LLP

Is food marketed to children destined to become the “new tobacco,” a status which could usher in a host of new regulatory restrictions and advertising prohibitions?  As the drive to do something about the childhood obesity “epidemic” intensifies, and consumer groups continue to advocate for more controls, FTC, FCC or even congressional action may not be far behind.

The FTC recently noted its intention to issue compulsory process orders to 48 food and beverage manufacturers, distributors, and marketers, as well as quick service restaurants seeking information on how they market food and beverages to children.  FTC is targeting the same 40 companies which provided the Commission with marketing information in 2006, in addition to eight others (interestingly including “several fruit and vegetable producers, distributors, and marketers”) which the agency has yet to identify.  All 40 are required to retain potentially responsive information or be subject to criminal liability.  This creates quite a conundrum for those eight unidentified companies, since they likely have no idea whether FTC will be targeting their information.

FTC seeks information on: (1) the categories of food marketed to children; (2) the types of measured and unmeasured media used for marketing; (3) the amount spent to communicate marketing messages about food to children; (4) the nature of such marketing activities; (5) marketing based on gender, race, ethnicity or income; and (6) policies, initiatives or research undertaken relating to the marketing of food to children. 

This development is contrary to FTC’s historically positive view towards industry self-regulation.  By all accounts, such self-regulation of food and beverage marketing has succeeded, which makes it hard to understand why a follow-up to the 2006 study is needed. 

Significant information already exists regarding the industry’s actions since 2006.  In July of 2008, the FTC released a report of its findings from the 2006 study.  The report – Marketing Food to Children and Adolescents: A Review of Industry Expenditures, Activities, and Self-Regulation – concluded, in part

 that the food and beverage industries have made significant progress since the FTC and the Department of Health and Human Services co-sponsored the Workshop on Marketing, Self-Regulation & Childhood Obesity in 2005.

In October of 2009, the Better Business Bureau’s Children’s Food and Beverage Advertising Initiative (CFBAI) released its Report on Compliance and Implementation During 2008, which concluded, in part, that

participants did an excellent job of implementing and complying with their pledges during 2008 [and that] the participants’ commitment to the Initiative’s goal to seek balance in the types of food and beverage products that are advertised primarily to children under 12 is noticeably changing the landscape of children’s advertising. During 2008, participants’ advertising often was for yogurt or yogurt products, soups, or products or meals that included water, whole grains, low-fat dairy products, apples, vegetables, and important nutrients children need.

In December 2009, CFBAI’s Vice President and Director, Elaine D. Kolish, continued to support self-regulation and enthusiastically reiterated that it was working, stating, in part that:

[t]he bottom line is that self-regulation is working and is successful. Through our program, major candy companies are no longer advertising to kids. Further, dozens and dozens of products have been meaningfully reformulated or newly introduced to meet nutrition standards.   

Even Michelle Obama’s White House Task Force on Childhood Obesity Report to the President, Solving the Problem of Childhood Obesity Within a Generation, issued in May of 2010, recommended only increased self-regulation and suggested that the FCC could consider revisiting and modernizing rules on commercial time during children’s programming only after self-regulation failed,  

Given the recent spate of reports and recommendations, it does appear that self-regulation is working, and regardless of the FTC’s findings, the federal government should continue to give it a chance to do so. 

There will always be marketers that push the envelope, and skirt or ignore the CFBAI’s principles.  But it would be untenable to lump in the vast majority of food marketers with such a group and enact legislation or rules that could hamper the legitimate operations of businesses that are making substantial efforts to help reduce obesity in the United States.  Instead, as has so often been the case when issues persist, the FTC and FCC can increase enforcement against the outliers using their existing regulatory schemes.

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