July 15th, 2011
How Food Marketers Are Responding to Government Pressure on Kids' Ads
Amid pressure from the government, some of the nation’s biggest food and drink marketers said today they will tighten guidelines on what can be advertised to children. For the first time ever, the Better Business Bureau’s Children’s Food and Beverage Advertising Initiative said it would enforce the same nutritional standards for all 17 of its voluntary members, rather than letting companies pick and choose their own rules. And the standards will be tightened as of December 2013 to the point where one in three products now advertised to kids would be off the air, unless recipes are reformulated with less sodium, saturated fat and sugar.
The new rules—which cover marketers such as McDonald’s and Kraft Foods—are partly meant to thwart a stronger proposal by the Obama administration that advertisers say would pretty much shut down kid-oriented ads for most foods.
But here’s the rub: Both the government’s proposal and the industry’s effort are voluntary. So are marketers and bureaucrats simply shadow boxing, or will someone actually land a punch?
Former FDA associate commissioner Peter Pitts, now the president of the Center for Medicine in the Public Interest, said no matter what the government adopts, it will never carry the weight of law. “On Capitol Hill, there’s a lot of chest-thumping and desk pounding and sound bites delivered,” he said. “But at the end of the day, the First Amendment trumps all.”
The Obama administration’s Interagency Working Group on Food Marketed to Children pretty much admits the proposal lacks teeth. David Vladeck, director of the Federal Trade Commission’s Bureau of Consumer Protection, sought to downplay fears in a recent blog post, saying it was a “myth” that the FTC would sue companies that don’t adopt the proposed nutrition standards: “The Working Group’s job is to submit a report to Congress. That’s all. That’s what Congress told the group to do. A report to Congress by an interagency working group provides no basis for law enforcement action by the FTC or by any of the other agencies participating in the Group.”
But the Association of National Advertisers is still nervous, fearing that the government would use its other levers of power to punish marketers that don’t comply. “This ‘Inconsequentiality Defense’ ... falls apart under even the slightest examination,” Dan Jaffe, the ANA’s exec VP-government relations, wrote in his own blog post, snapping back at Mr. Vladeck. “The four agencies of the Working Group have authority over virtually every aspect of the growing, marketing, labeling and advertising process that is fundamental to the health and well-being of the food, beverage, restaurant and advertising communities.”
Mr. Pitts, who served in the Bush administration, said he doesn’t buy that argument. “I think voluntary means voluntary and legal means legal,” he said. “To say it’s back-door regulations ... is just untrue.”
But for now, the battle is over what will ultimately emerge from Washington. House Republicans are seeking to delay the proposal by requiring a study of its cost and impact, according to published reports.
The Children’s Advertising Initiative, meanwhile, is presenting its newly strengthened program “as a viable alternative” to what the government has proposed, said Elaine Kolish, the group’s director. “We all want healthier kids but we think the government’s proposal is unworkable and unrealistic. We think we have a roadmap that’s going to encourage product innovation, not discourage it.”
There are some big differences. The industry proposal sets separate standards in specific categories. For most breakfast cereals, for instance, marketers could not target kids in ads unless the brand contains 1.5 or fewer grams of saturated fat per serving. But for peanut butter, the rules allow up to 3.5 grams of saturated fat per two tablespoons. The government’s proposal is broader, only allowing foods with no trans fat and not more than one gram of saturated fat to be marketed to children, for instance.
The government’s proposal also sets a broad definition for marketing activities that would not be allowed for foods that don’t qualify, including not allowing the “use of child- or teen-oriented animated or licensed characters,” possibly killing off icons like Tony the Tiger. But the industry throws the characters a lifeboat, allowing them to remain on packages. “We don’t think that’s necessary or appropriate,” Ms. Kolish said. But “we do say when they show products in packaging in advertising, it has to be for their healthier products.”