Legal and Policy Resources on Public Health "Winnable Battles"
Nutrition Advertising Targeting Children
Obesity among young people is a major public health concern in the United States. During the period 1980-2008, the prevalence of obesity among children aged 6 to 11 years increased from 6.5% to 19.6% and from 5.0% to 18.1% among youth aged 12 to 19 years. The 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, the issue is a federal question that 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.
- Institute of Medicine (IOM)
- The IOM reviewed 123 published empirical studies to determine the influence of food marketing on children. Key findings from the report include:
- food advertising increases children’s consumption of advertised foods;
- children age eight and under do not comprehend the persuasive intent of marketing messages;
- children consider all advertising as accurate and fail to comprehend the advertiser’s motive to embellish the product; and
- children under four cannot distinguish between advertising and programming.
The study was requested by Congress and sponsored by the Centers for Disease Control and Prevention. The report, Food Marketing to Children and Youth: Threat or Opportunity was published in December 2005 and offers the most comprehensive review to date of the scientific literature related to food marketing that targets children and adolescents.
- The Henry J. Kaiser Family Foundation (KFF)
- In 2007, the KFF published results from the largest study ever conducted to date on television advertising to children. The study examined the current status of food advertising to children on television to provide a baseline for measuring change in future years. The study examined more than 1,600 hours of television programming across all genres to develop a detailed analysis of advertising content from a large national sample of children. The report finds that children ages 2-7 are exposed to an average of 38 product advertisements per day; 8-12 year-old children average 83 advertisements per day; and 13-17 year-old children average 79 advertisements per day. Food is the most widely advertised product on television for children at 50% of all ad time, and more than 40% of all food advertisements provide a disclaimer (e.g., “part of a balanced diet”) or promote a website encouraging personal interaction.
- Peer-reviewed Publications Available on the Internet
- Story, M., & French, S. (2004) Food Advertising and Marketing Directed at Children and Adolescents in the U.S. International Journal of Behavioral Nutrition and Physical Activity, 1:3. The authors discuss food advertising and marketing strategies, the influence of food advertising on children’s food preferences, and regulations on advertising to children. Their findings show that foods heavily marketed to children are predominantly high in sugar and fat. They also conclude that studies consistently show children exposed to advertising will choose advertised foods significantly more often than unadvertised foods.
- Harris, J., et.al. (2008) A Crisis in the Marketplace: How Food Marketing Contributes to Childhood Obesity and What Can Be Done. Annual Review of Public Health, 30:211-25. The food industry markets to children because they represent a consumer base for food purchases, effectively influence parents, and develop brand loyalties very early in life that are continued throughout adulthood. The authors found a significant disparity between public health funding to lower the prevalence of childhood obesity and food industry spending on marketing non-nutritious foods to children. For example, the Robert Wood Johnson Foundation provides $100 million each year to reverse child obesity trends, but the food industry spends, on average, more than $133 million each month on advertising and promotions to children.
- Montgomery, K. & Chester, J. (2009) Interactive Food and Beverage Marketing: Targeting Adolescents in the Digital Age. Journal of Adolescent Health, S18-S29. The authors go beyond traditional television and print media to explore the effect interactive marketing has on children (e.g., internet, games, digital devices, on-line social networks). The authors conclude that interactive marketing features personalization, engagement, immersion, and connectivity that they describe as particularly risky to adolescents and exploits the relationship that teenagers have with new media.
- Federal Trade Commission (FTC)
- The FTC was created in 1914 to prevent unfair methods of competition in commerce. The FTC is the only federal agency with both consumer protection and competition jurisdiction in broad sectors of the economy. The FTC home page has a “Quick Finder” section that includes links to FTC adjudicative proceedings, documents, rules and guides that a reader looking for legal resources may find useful.
- 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). The CTA 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. The CTA requires each broadcast station in the United States to use a minimum three hours per week of “core programming” to serve the educational and informational needs of children. The following link is to the FTC page about children’s educational television.
- 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. The first link provides an FTC overview of the Report and Order and the second link is the actual Report and Order, MM Docket No. 93-48, FCC 96--335, released August 8, 1996.
- 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. The first link is the FTC Notice of Solicitation for Comment. The second link is the response from 19 interested parties with direct links to their submitted comments.
- Pursuant to the Congressional mandate to prepare a report on food industry marketing practices 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 rule make under the Administrative Procedures Act, the FTC must use an extensive process outlined in the Magnum-Moss Act of 1975 that can take up to ten 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 three elements that must be present for the FTC to take action against an advertiser. First, there must be a representation, omission, or practice that is likely to mislead the consumer. Second, the FTC examines the reasonableness of the practice from the perspective of the intended audience. Finally, the representation, omission, or practice must be likely to affect the consumer’s conduct or decision with regard to the product or service.
- The National Policy and Legal Analysis Network to Prevent Childhood Obesity (NPLAN)
- NPLAN has produced a “Model Ordinance for Healthier Toy Giveaway Meals” and an accompanying fact sheet which discuss 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 lay out 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 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 November 2010 report titled, Fast Foods F.A.C.T.S.: Evaluating Fast Food Nutrition and Marketing to Youth. 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 two 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. 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. The SA maintains a page dedicated to “Unhealthy marketing to kids” that 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.
- 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. 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 1st 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 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.”
- 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) Is the interest asserted by the government substantial; (3) Does the regulation directly advance the governmental interest asserted; and (4) Does the regulation reach 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 Available on the Internet
- Pomeranz, J. (2010) Television Food Marketing to Children Revisited: The Federal Trade Commission Has the Constitutional and Statutory Authority to Regulate. 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, 185-213. 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 may not subject to a First Amendment test (junk food-free checkout aisles).
DISCLAIMER: Information available on this website that was not developed by the Centers for Disease Control and Prevention (CDC) does not necessarily represent any CDC policy, position, or endorsement of that information or of its sources. The information contained on this website is not legal advice; if you have questions about a specific law or its application you should consult your legal counsel.
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