The House Energy & Commerce Committee held a hearing on October 12, 2011, to consider “Food Marketing: Can ‘Voluntary’ Government Restrictions Improve Children’s Health?” Speaking for the committee, Chair Fred Upton (R-Mich.) concluded that an interagency working group tasked with developing standards for marketing food to children and teenagers had taken what appeared to be “a first step toward Uncle Sam planning our family meals.” Agency witnesses, such as Federal Trade Commission (FTC) Bureau of Consumer Protection Director David Vladeck, then testified that the proposed voluntary standards released in spring 2011 are undergoing “significant revisions” to allay the concerns of industry stakeholders.

Among other matters, the FTC has determined that (i) “with the exception of certain in-school marketing activities, it is not necessary to encompass adolescents ages 12 to 17 within the scope of the covered marketing”; (ii) “philanthropic activities, charitable events, community programs, entertainment and sporting events, and theme parks are, for the most part, directed to families or the general community and do not warrant inclusion with more specifically child-directed marketing”; and (iii) FTC staff “does not contemplate recommending that food companies change the trade dress elements of their packaging or remove brand equity characters from food products that don’t meet nutrition recommendations,” that is, the government will no longer suggest that cartoon characters be removed from the packaging of foods without nutritional value marketed to children.

Testifying on behalf of the U.S. Department of Agriculture, Robert Post indicated that a voluntary self-regulation program, involving 17 food manufacturers and restaurant chains, appeared to be moving in a positive direction in terms of “getting healthier products marketed to children” by agreeing “to follow a unified set of nutrition criteria.”

Public health advocacy interests responded with concerns about an apparent
weakening of what were already voluntary government guidelines. Center
for Science in the Public Interest Nutrition Policy Director Margo Wootan
said, “What an unseemly spectacle it is to see panicked junk-food advertisers
running to Congress to help fending off the innocuous, voluntary guidelines
for food marketed to children proposed by the Interagency Working Group.”
Noting that the industry was apparently playing the “national nanny card,”
Wootan also said, “I suppose if you’re in the business of convincing young
children to want to eat Cocoa Puffs, Cookie Crisps, Kool-Aid, and fake ‘fruit’
snacks, it makes perfect sense that you’d try to change the conversation away
from nutrition and health.”

Meanwhile, industry opponents of the marketing guidelines reportedly testified that the government should scrap them entirely, calling them “backdoor regulations” that would result in the loss of thousands of U.S. jobs and accomplish little in addressing childhood obesity. According to a spokesperson for the Association of National Advertisers, “These are unprecedented and extreme proposals [that] need to be formally withdrawn and taken back to the drawing board.” Some congressional representatives apparently agreed that the recommendations be withdrawn, critical of what they viewed as the Obama administration’s failure to consider potential economic impacts of the guidelines and concerned over opening the door to consumer lawsuits. See Advertising Age and CSPI News Release, October 12, 2011.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.