New York University Nutrition Professor Marion Nestle has co-authored a rebuttal to claims that U.S. Rep. Aaron Schock (R-Ill.) made about a bill (H.R. 1572) which would prohibit the use of federal money “for print, radio, television or any other media advertisement, campaign, or form of publicity against the use of a food or non-alcoholic beverage that is lawfully marketed under the Federal Food, Drug, and Cosmetic Act.” Schock introduced the measure, titled the “Stopping Taxpayer Outlays for Propaganda Act” or “STOP Act,” on April 15, 2013. In a Politico essay two days later, Schock claimed, “Using taxpayer dollars to attack the beverage and food industry might seem like a good idea to New York Mayor Michael Bloomberg, but it’s this exact type of harmful government spending that we can ill afford and serves no purpose in the overall wellness debate—other than to be critical of domestic companies that employ…
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Lawmakers in Maryland have passed a bill (S.B. 374) requiring the Office of the Attorney General to assemble and direct a workgroup to explore issues relating to the protection of children’s online privacy. The legislation requires that the workgroup include state government representatives, industry leaders, children’s online privacy experts, and consumer and children’s health advocates. Among other things, the workgroup will examine (i) the nature and extent of data collected about children through Internet–based and mobile application–based advertising; (ii) “current and forthcoming federal and state regulation of children’s online privacy and online advertising and associated data collection”; (iii) the effects on children of online advertising; and (iv) best practices to protect children’s online privacy. The law takes effect on June 1, 2013, and requires that the Attorney General’s Office report findings and recommendations to the Senate Finance Committee and House Economic Matters Committee by December 31.
According to a news source, a California judge recently determined that the California Department of Food and Agriculture did not comply with statutory requirements when it created the state’s Raisin Marketing Board 15 years ago, agreeing with a challenge filed by dissident raisin growers and packers who have long complained about paying for marketing with which they did not agree. Superior Court Judge Raymond Cadei reportedly determined that the raisin industry did not prove that the industry was in crisis when the board was formed, stating, “[t]he record shows that there was no evidence of the kind of severe adverse economic conditions the Marketing Act was intended to address.” The court also ordered the board to repay the plaintiffs’ assessments, which could reach millions of dollars. Board officials have indicated they will explore all legal options to keep the board operating. See The Fresno Bee, April 27, 2013.
The U.K. Advertising Standards Authority (ASA) recently upheld three out of four complaints brought by the Youth Alcohol Advertising Council (YAAC) against Fireball Whiskey distributor Hi Spirits Ltd. over social media advertisements that allegedly promoted excessive drinking. In particular, the complaints focused on Fireball Whiskey’s Facebook page, which, in addition to advertisements depicting young women pouring or consuming alcohol, a young man “lying face down on a bed” and teddy bears branded with the whiskey’s logo, apparently featured (i) “a poster in style of ‘Keep Calm and Carry On’” with the tagline “TAKE A SHOT AND IGNITE THE NITE” and a caption asking users to “Like if you think this is a good plan for the weekend!”; (ii) a status update asking users to submit their “Fireball stories from the weekend” to win “Fireball freebies!”; and (iii) a status update asking students undergoing final exams to “Like this status and…
The consumer regulatory agency of Sao Paulo, Brazil, has reportedly fined McDonald’s US $1.6 million for allegedly marketing to children. Procon SP has claimed that franchisee Arcos Dorados Holdings Inc. violated the state’s consumer code by using children’s characters and toys to promote Happy Meals®. “This is not an isolated case,” a Procon SP lawyer was quoting as saying. “There’s no need to appeal as they do to children without the maturity or the rationality to enter the market as consumers.” In 2011, the Brazilian Consumer Defense Foundation fined the fast-food corporation US$1.8 million after a nonprofit organization complained that Happy Meal® incentives encouraged “unhealthy eating habits” among children. A McDonald’s spokesperson has since told media sources that the company plans to appeal the latest ruling. Additional details about the Consumer Defense Foundation matter appear in Issue 420 of this Update. See Law360 and Reuters, April 23, 2013.
Vermont Attorney General (AG) Bill Sorrell will reportedly join other state AGs for a conference on “the current state of food industry marketing to kids,” scheduled for May 2013 at Yale University’s Rudd Center for Food Policy and Obesity. After introducing a Dartmouth College pediatrics professor to the Vermont House Committee on Health Care to address youth marketing by the food industry, Sorrell noted that the state AGs will consider “labeling, advertisements and the like, and look at what, under existing authority, we might be able to do, and how we might be in a position to espouse change within our state legislatures.” Sorrell was able to insert a tax on sugar-sweetened beverages into legislation pending before the committee in March, fulfilling a recommendation in an obesity report issued by his office in 2010. According to Sorrell, “The food industry marketing to kids these nonnutritious, high-sugar and fat content fast-food…
Yale University’s Rudd Center for Food Policy & Obesity has issued a March 2013 report highlighting “where children and adolescents viewed the food and beverage advertisements they saw on television in 2011.” Using Nielsen data, the Rudd Center apparently sought to quantify “the average number of food and beverage TV ads viewed by age group (ages 2-5, 6-11, 12-14, 15-17) in total and by product category, as well as the channels and programs where these ads appeared.” According to the report, four youth-oriented channels accounted for one-half of food advertising viewed by children, with Viacom’s Nickelodeon airing “over one-fourth of the food ads viewed by 2- to 11-year-olds.” Overall, 24 percent of these ads evidently featured fast food restaurants, 12 percent featured cereal, 11 percent featured other restaurants and 11 percent featured candy. In addition, the report noted that “[f]ive programs on the top-ten list of programs where children saw…
A federal court in California has dismissed in part the first amended complaint in a putative class action against Frito-Lay and PepsiCo, alleging that the companies falsely advertised and labeled their products as “All Natural,” “0 Grams Trans Fat,” “No MSG,” “low sodium,” “healthy,” and with other unspecified health claims. Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered April 1, 2013). Dismissed with prejudice were claims that the companies breached warranties under the Magnuson-Moss Warranty Act and the Song Beverly Consumer Warranty Act. Among the claims that the plaintiffs will be allowed to amend are the allegations against PepsiCo, dismissed due to insufficient pleading; allegations involving products not specifically named or described in the complaint; and a claim for restitution based on unjust enrichment, which should have been pleaded in the alternative. To the extent that the plaintiffs based their unfair, false and deceptive advertising claims…
In an article titled “Snake Oil Salesmen or Purveyors of Knowledge: Off-Label Promotions and the Commercial Speech Doctrine,” Yale Law School Senior Research Scholar Constance Bagley and her co-authors critique the Second Circuit’s December 2012 determination in United States v. Caronia that Food and Drug Administration rules prohibiting prescription drug makers from promoting their products for off-label uses are unconstitutional under the First Amendment. According to the article, which will appear in a forthcoming issue of the Cornell Journal of Law and Public Policy, “this undue expansion of the Free Speech rights of commercial actors, if left unchecked” has the “potential to undermine the constitutionality of numerous areas of federal regulation,” including mandatory labels on food under the Nutritional Labeling and Education Act of 1990 and Food Allergen Labeling and Consumer Protection Act of 2004. The authors call for anchoring regulatory regimes in promoting the public good rather than individual…
U.S. Sens. Richard Blumenthal (D-Conn.) and Richard Durbin (D-Ill.) recently sent letters to the CEOs of Monster Beverage Corp., Rockstar, Inc., and Red Bull North America, accusing the companies of marketing energy drinks to children. Citing “growing concern about the potential health risks posed by energy drinks,” the legislators claim that despite pledges to abstain from targeting children with direct advertisements, energy drink manufacturers have sponsored athletic competitions and professional athletes that appeal to youth. In particular, the letters single out Monster Beverage Corp. for purportedly advertising on a Little League scoreboard; distributing free product samples at skate park events geared toward children; and sponsoring “Monster Energy Drink Player of the Game” awards for student athletes. Blumenthal and Durbin also highlight Rockstar’s sponsorship of “a 15-year-old professional skateboarder and role model to young fans” as well as Red Bull’s involvement with a high school football tournament and the Red Bull…
