Nutrition Advertising Targeting Children

Obesity among young people is a major public health concern in the United States. According to national health statistics [PDF -13.4MB] for 2013–2014, 17.4% of children aged 6–11 years and 20.6% of adolescents aged 12–19 years are obese. Scientific literature documents that children are uniquely vulnerable to the effects of advertising and scholars have proposed regulating food marketing to children as a strategy to address childhood obesity.

From a legal perspective, this federal issue includes commercial speech and First Amendment protections, which is influenced by Supreme Court decisions that show an interest in the protection of children. Therefore, some food industry strategies to market to children that are substantial, complex, and composed of primarily nutrient-poor and calorie-dense foods are beginning to be examined.

In addition, the methods the food industry uses to advertise to children are expanding to various technological forms–including television, the internet, interactive video games, and product placements in movies intended for children–that have not been tested in the courts. The Federal Trade Commission (FTC), which is the primary federal agency with jurisdiction, reports that in 2006, the food industry spent approximately $870 million on marketing to children under the age of 11 and over $1 billion on marketing to adolescents. The majority of advertising (65%) was spent to promote carbonated beverages, breakfast cereals, and fast food restaurants. The food industry spends nearly all of the remaining 35% marketing non-carbonated beverages, snack foods, and candy.

Regulation

• Federal Trade Commission (FTC)
  The FTC Division of Advertising Practices (DAP) is responsible for regulating marketing practices that raise health and safety concerns. DAP’s enforcement priorities include oversight and monitoring of deceptive advertising. DAP is the FTC division responsible for reporting on food industry advertising practices targeting children and provides data to assist others who measure the impact of advertising and marketing practices by food companies on childhood obesity.

• In 1990, Congress enacted the Children’s Television Act (CTA), which authorizes the FTC to limit the amount of commercial information in television programming targeting children (defined as under age 16) to 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.
• In 1996, the FTC adopted a Report and Order amending the CTA to strengthen FTC enforcement. Under the Order, upon renewal of any broadcast license, the FTC must “consider the extent to which the licensee has served the educational and informational needs of children through the licensee’s overall programming, including programming specifically designed to serve such needs.” The FTC also adopted a definition of “core programming” and provides better guidance to broadcasters to remain compliant with the CTA. Access the Report and Order, MM Docket No. 93-48, FCC 96-335.
• In November 2005, appropriations law was enacted providing funds to the FTC to develop empirical data that addressed the extent of food and beverage marketing to children. The Senate was “concerned about the growing rate of childhood and adolescent obesity and the food industry’s marketing practices for these populations.” In response, the FTC solicited public comments on the topic and interested parties provided comments by December 21, 2006. Access the FTC Notice of Solicitation for Comment.1938
• Pursuant to the Congressional mandate to prepare a report on food industry marketing practices [PDF-2.8MB] and subsequent to the public comment period, the FTC subpoenaed 44 food and beverage companies and used compulsory process orders to compel them to provide documentation regarding their industry marketing practices directed at children and adolescents. Based on their findings, the FTC submitted a report to Congress in July 2008 with unprecedented data on child-directed marketing practices by the food industry. For example, in 2006 the food industry expenditures totaled more than $1.6 billion in marketing to children and adolescents and $116 million in marketed carbonated beverages to students in schools. The report also describes product types (cereals, fast food, candy, etc.) and marketing methods (television, internet, prizes, event sponsorships, etc.) used by the industry to market to children and adolescents.
• The authority to regulate advertising and declare specific practices and methods of competition as deceptive and unfair is granted to the FTC under the Federal Trade Commission Act of 1938, 15 USC 45(a)(1). Section 5 of the FTC Act prohibits “unfair methods of competition” and “unfair or deceptive acts or practices.” The FTC has defined “deceptive” and Congress enacted legislation defining “unfair” for the purposes of the FTC Act.
• The FTC uses rulemaking to exercise its authority and create prohibitions on deceptive marketing practices. Unlike most federal agencies that rulemake under the Administrative Procedures Act, the FTC must use an extensive process outlined in the Magnum-Moss Act of 1975 [PDF – 103KB] that can take up to 10 years to complete. This is intended to prevent the FTC from acting too quickly on commercial speech issues.
• The FTC has an enforcement policy statement against deceptive acts or practices. The statement outlines the following three elements that must be present for the FTC to take action against an advertiser: 1) There must be a representation, omission, or practice that is likely to mislead the consumer; 2) The FTC examines the reasonableness of the practice from the perspective of the intended audience; and 3) The representation, omission, or practice must be likely to affect the consumer’s conduct or decision with regard to the product or service.

Policy

• The National Policy and Legal Analysis Network to Prevent Childhood Obesity (NPLAN)
  • NPLAN has produced a “Model Ordinance for Healthier Toy Giveaway Meals” and accompanying fact sheet discusses the fast foods industry’s use of toys to market unhealthy foods to children.
  • NPLAN has created several resources on limiting food marketing inside and on the grounds of schools, including model policies, a fact sheet, and a legal memorandum on First Amendment implications of restricting food and beverage advertising in schools.
  • In conjunction with the Public Health Law Center, NPLAN has produced a series of four fact sheets that provide a roadmap for advocates interested in engaging and cooperating with state attorneys’ general in addressing junk food marketing to children.
  • NPLAN and the Institute for Public Representation have produced a memorandum on the FTC’s authority to regulate food marketing [PDF – 353KB] and how researchers and advocates can identify and report unfair, misleading, and deceptive ads and marketing to the FTC.
• Rudd Center
  • The Rudd Center published a January 2017 report titled, Baby Food F.A.C.T.S.: Nutrition and Marketing of Baby and Toddler Food and Drinks [PDF – 5.99MB], which analyzes the nutritional content of food and drink products marketed to parents, and how well the marketing messages correspond with experts’ recommendations for feeding babies and toddlers up to three years. The report also examines 371 baby and 148 toddler food products from 4 companies and 6 brands that spent $100,000 or more on advertising in 2015. The findings show that many marketing messages imply that commercially prepared baby and toddler foods are more nutritious than breast milk for babies, or whole milk and table food for toddlers. The companies also promoted products that contradict expert advice on optimal feeding practices, including nutritionally poor snacks, toddler milk, and energy-dense nutritional supplements.
  • The Rudd Center previously published a November 2015 report titled, Snack F.A.C.T.S.: Evaluating Snack Food Nutrition and Marketing to Youth [PDF – 8.5MB], which analyzes snack food marketing and nutrition in the United States. It evaluates 90 snack brands that collectively spent more than $1 million marketing to children and teens on TV, online, and in schools. Findings show that the companies promote unhealthy sweet and savory snacks that can harm the health of children and teens. While these marketing tactics have improved over the past five years, most nutritious snacks that met the U.S. Department of Agriculture (USDA) Smart Snacks standards were not advertised to children and teens.
  • The Rudd Center published a November 2010 report titled, Fast Foods F.A.C.T.S.: Evaluating Fast Food Nutrition and Marketing to Youth [PDF-11.5MB]. The report examines the marketing efforts of 12 of the nation’s largest fast food chains and analyzes the nutritional content of the foods advertised. Findings from the report show the fast food industry spent more than $4.2 billion on marketing and advertising in 2009. Although fast food companies have pledged to reduce unhealthy marketing to children, preschoolers through teens are seeing more fast food advertisements today compared to marketing data from only 2 years ago. Researchers also found that out of 3,039 possible kids’ meal combinations, only 12 meet standards established by the Nutrient Profile Index and the Institute of Medicine guidelines for calorie and sodium consumption. Only 15 meal combinations meet nutritional criteria for older children.
  • The Rudd Center published an October 2009 report titled, Cereal FACTS: Evaluating the Nutritional Quality and Marketing of Children’s Cereals [PDF-3.7MB]. In 1980, the FTC attempted to regulate nutrition advertising to children in a program known as KidVid; however, an act of Congress in 1981 terminated the FTC effort. Since then, FTC policy has focused on strategies that focus more on food industry self regulation. The Rudd Center report examines the government’s policy to allow food industry self regulation and examines whether pledges by the largest food marketers and actions by the Children’s Food and Beverage Advertising Initiative are working to reduce unhealthy marketing to children. They have found that in spite of the pledges, large cereal manufacturers continue to target children with their least healthy products.
• Strategic Alliance (SA)
  Eatbettermove.org and the Prevention Institute promote healthy eating and activity as the SA. “Unhealthy marketing to kids” [PDF-73KB] describes the environment marketers create with their advertising efforts toward children, the concern advertising creates for parents and public health officials, and action steps that may be taken to reduce marketing of unhealthy foods to children. Eatbettermove.org has published a policy statement titled, Restricting Television Advertising to Children [PDF-101KB].
• Center for Science in the Public Interest (CSPI)
  In March 2010, the CSPI published Report Card on Food Marketing Policies: An analysis of Food and Entertainment Company Policies Regarding Food and Beverage Marketing to Children [PDF-1.7MB]. CSPI evaluated food and beverage manufacturers, chain restaurants, and entertainment companies that market food to children to determine whether they have adopted a marketing policy, and if so, the adequacy of the policy. The study is in response to the 2008 FTC policy statement that, “All companies that market food or beverage products to children [should] adopt and adhere to meaningful nutrition-based standards for marketing their products and that marketing should include all advertising and promotional techniques.” The study found that 68% of the 128 companies analyzed do not have policies.
• American Psychological Association (APA)
  A significant public health concern related to nutrition advertising targeting children is the question of a child’s ability to comprehend the intent of the message. Commercial speech that may otherwise have First Amendment protections may be considered inherently misleading when directed at children too young to understand its persuasive intent. The 2004 Report of the APA Task Force on Advertising and Children [PDF-618KB] states that, “because young children lack the cognitive skills and abilities of older children and adults, they do not comprehend commercial messages in the same way as do more mature audiences, and, hence, are uniquely susceptible to advertising influence.”

Law

• Central Hudson Gas & Electric Corporation v. Public Service Commission of New York, 447 U.S. 557 (1980)
  The Central Hudson Gas case established a four-part test to determine when restrictions on commercial speech violate the First Amendment. The test includes 1) A court must confirm whether the specific speech at issue is protected by the First Amendment, meaning it must not be false or misleading; 2) If the interest asserted by the government substantial; 3) If the regulation directly advances the governmental interest asserted; and 4) If the regulation reaches beyond what is necessary to serve the government’s interest. As of November 2010 the Court has not heard a case that employs the Hudson case test on the issue of nutrition advertising that targets children.
• Ginsberg v. New York, 390 U.S. 629 (1968)
  The Ginsberg case involved a commercial vender selling obscene materials to minors. The Court in its decision found that the government “has an independent interest in the well-being of its youth” and noted that a child “is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” The case demonstrates that the Court considers children a vulnerable population and constitutionally cannot be seen in the same light as adults.
• Peer Reviewed Publications
  • Pomeranz, J. (2010) Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate [PDF-255KB]. Journal of Law, Medicine and Ethics, Spring, 98-116. The author presents comprehensive background information that describes commercial speech protections under the First Amendment, the history and operations of the FTC, regulatory practices, Supreme Court decisions and statutory authority. The author argues that our “free market economy is premised on rational and informed consumers who have confidence in commercial information’s accuracy and reliability” and because the Supreme Court has found children to be “uniquely vulnerable” and they do not have the ability to differentiate between puffery and fact, any speech intended to persuade them is, by definition, deceptive and misleading.
  • Pomeranz, J., et.al. (2009) Innovative Legal Approaches to Address Obesity, Milbank Quarterly, (87)1, 185-2113. The article examines promising legal strategies for preventing obesity including regulatory strategies related to advertising that target children and adolescents. The authors suggest that while regulating “commercial speech” may not be an effective strategy, “compelled speech” of factual and uncontroversial commercial information, such as improved labeling, may serve an appropriate government interest. The government may also develop strategies to fund compelled government speech that is made available in the commercial marketplace. Regulating conduct of persons or corporations may also be an effective strategy. For example, local laws banning the placement of certain items near a checkout counter (junk food-free checkout aisles) may not subject to a First Amendment test.