July 4th, 2011

Fight erupts over food marketing restrictions for children

The Hill

The Federal Trade Commission is pushing back hard against industry’s campaign against proposed voluntary restrictions on food marketing to children.

The commission, one of four government agencies tasked with drawing up the guidelines, lambasted industry critics who suggest the anti-obesity proposal is a backdoor effort to regulate commercial speech. In a sharply worded 12-point rebuttal, the FTC said the proposal “doesn’t ban any marketing or any foods at all.”

“We’ve also heard amped-up stories claiming to know what this project is ‘really’ about and suggesting that the agencies are trying to ban almost all food marketing to kids and punish food companies that don’t adhere strictly to the principles,” David Vladeck, director of the Bureau of Consumer Protection, wrote on the FTC’s blog.

“Frankly, these folks might want to switch to decaf.”

The retort comes after the U.S. Chamber of Commerce on Thursday assailed the guidelines through a panel of experts. Their criticisms, The Hill reported Thursday, range from allegations that the guidelines would violate the First Amendment to questions about their efficiency.

Despite being voluntary, said Northwestern law Professor Martin Redish, the guidelines could have a chilling effect on commercial speech, for several reasons:

• Regulators’ control over the food industry;
• Reputational damage for companies that don’t comply;
• Pressure on media outlets not to carry the advertising; and
• The heightened risk of class-action lawsuits.

The FTC said those concerns were all “myths.”

“A report is not a law, a regulation, or an order, and it can’t be enforced,” Vladeck wrote. “While we hope companies voluntarily choose to adopt the principles (when finalized), there’s no legal consequence if they don’t. So there’s no effect on their free speech rights.”

Businesses, parents, consumer groups and others have until July 14 to comment on the proposal.



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