A divided D.C. Circuit Court of Appeals has determined that the graphic antismoking images which the Food and Drug Administration (FDA) selected for placement on cigarette packages for the purpose of reducing smoking rates in the United States fail the intermediate scrutiny standard for compelled commercial speech. R.J. Reynolds Tobacco Co. v. FDA, No. 11-5332 (D.C. Cir., decided August 24, 2012). According to the court, which vacated the graphic warning requirements and remanded to the agency, “FDA failed to present any data much less substantial evidence required under the [Administrative Procedure Act]—showing that enacting their proposed graphic warnings will accomplish the agency’s stated objective of reducing smoking rates.” The court discusses the different standards applied when deciding whether government efforts to regulate speech are permissible under the First Amendment. A strict scrutiny standard, for example, gives government little leeway to compel or proscribe speech and imposes a heavy burden on…
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A coalition of advocacy organizations has filed five complaints with the Federal Trade Commission (FTC) against companies including McDonald’s Corp., General Mills, Inc. and Doctor’s Associates, Inc., calling for an investigation into Websites they purportedly use to promote food and TV programs to children. According to the coalition, the food-related websites— HappyMeal.com, ReesesPuffs.com, TrixWorld.com, and SubwayKids. com—violate the Children’s Online Privacy Protection Act (COPPA) by encouraging children to provide their friends’ email addresses and create videos promoting branded products to send to their friends. According to the coalition, “tell-a friend,” or “viral marketing,” is profitable given the effectiveness of word-of-mouth advertising and the opportunity to create “lifetime customers.” The coalition is also requesting that FTC update existing COPPA regulations “to include data collection and storage of photographs online from children, as well as placement of cookies used for types of behavioral advertising.” Claiming that “several of the child-directed websites we…
Chilean Senator Guido Girardi has reportedly filed a formal complaint with the country’s Ministry of Health, alleging that fast-food companies have violated a new ban on using toys and other giveaways to market children’s meals. According to media sources, the complaint claims that several fast-food restaurants have flouted the law, along with other food manufacturers that purportedly use crayons, stickers and similar incentives to market products which appeal to children. Girardi has asked the Ministry of Health to enforce sanctions if the companies named in the complaint do not begin complying with the toy ban. “These businesses know that this food damages the health of children and they know that the law is in effect. They’re using fraudulent and abusive means,” said Girardi, who apparently drafted the law. “These corporations threatened that if the law was approved there would be no more money for children’s foundations, the sick, or athletes, but…
A nutritionist who published a study about the health effects of omega-3 fatty acids in the American Journal of Clinical Nutrition has objected to Dean Foods Co.’s decision to cite her work in marketing the health benefits of its Horizon organic milk fortified with docosahexaenoic acid (DHA). Penn State University Professor Penny Kris-Etherton apparently took issue with Horizon milk labels that used her paper to support a claim that “many Americans don’t get the recommended DHA from their everyday diet.” According to Kris-Etherton, however, her research did not establish an optimum level of DHA consumption for the average consumer. “It’s not right—it’s inaccurate,” she was quoted as saying. “It’s a marketing strategy to sell more of their milk.” Kris-Etherton’s concerns have evidently led Whole Foods Market Inc. to review its policy on DHA health claims and Dean Foods to consider voluntarily withdrawing the citation. “It’s appropriate to use published scientific studies…
The Center for Science in the Public Interest (CSPI) has sent a July 18, 2012, letter to the chief executive officer of DreamWorks Animation SKG, criticizing the studio’s decision to license its popular film characters to food companies. Focusing on the recent film Madagascar 3: Europe’s Most Wanted, the consumer group cited tie-ins “with multiple companies and retailers” that allegedly market food products to children, but singled out DreamWorks’ partnership with Snyder’s-Lance, Inc. as particularly problematic because the snack manufacturer is not currently a member of the Council of Better Business Bureaus’ Children’s Food and Beverage Advertising Initiative (CFBAI). “DreamWorks characters from Madagascar 3 are depicted on the packages of Nekot Cookies and Sandwich Crackers, which are of poor nutritional value,” alleges CSPI, which has also called on Snyder’s-Lance to apply nutrition standards “to 100% of the company’s marketing, not only via television, print, radio, Internet, and mobile devices, but…
According to a news source, a Los Angeles Superior Court has dismissed a putative class action seeking damages against One World Enterprises LLC for allegedly misleading consumers about the nutritional value and hydrating properties of its coconut water product. Shenkman v. One World Enters. LLC, No. BC467165 (Cal. Super. Ct., Los Angeles Cty., dismissed on July 18, 2012). The court apparently agreed with the defendant that part of the plaintiff’s case involved a product representation that was simply “puffery” and stated that marketing a product’s “superior” hydrating power “is not actionable because consumers are used to hearing advertisers make general boasts and were not born yesterday.” The court dismissed the case without prejudice to give the plaintiff an opportunity to replead state-based fraud and false advertising claims about the product’s allegedly false nutritional label. According to the court, the plaintiff “correctly notes federal law will not preempt his claim if the label…
Yale University’s Rudd Center for Food Policy and Obesity has issued a report claiming that cereal companies “have improved the nutritional quality of most cereals marketed directly to children, but they have also increased advertising to children for many of their least nutritious products.” Titled Cereal F.A.C.T.S. Food Advertising to Children and Teens Score, the report analyzes the nutritional quality of more than 100 brands and nearly 300 individual varieties of cereal marketed to children, families and adults while examining industry advertising on TV, the Internet and social media sites. According to the report, while nutritional quality improved for 22 cereal brands advertised to children in both 2008 and 2011, total media spending to promote child-targeted cereals increased by 34 percent during that same time period. Among its findings, the report concludes that (i) “Children viewed fewer TV ads for 7 of 14 child-targeted brands, including Corn Pops and Honeycomb”; (ii)…
The Center for Science in the Public Interest (CSPI) and Berkeley Media Studies Group have asked Nestlé CEO Brad Alford to stop marketing limited-edition Crunch® candy bars with three Girl Scout cookie flavors. Their June 18, 2012, letter contends that the co-branding initiative “violates your pledge not to target children with marketing for candy.” The products apparently feature the Girl Scout logo, and the groups assert that this tie-in and logo “will attract the attention of and appeal to children” because Girl Scouts are children, with some “2.3 million girls, in Kindergarten through 12th grade,” participating in scout activities nationwide. “Even if the candy bar advertising is targeted towards adults, the Girl Scout’s theme is inherently appealing to children and so constitutes marketing to children,” according to the letter. The groups close with, “Marketing thematically geared towards children is marketing to children. We look forward to discussing this further with…
A federal court in New Jersey has, for a second time, requested supplemental briefing before approving a stipulated final order for permanent injunction and other equitable relief in the Federal Trade Commission’s (FTC’s) action against a company that allegedly marketed açai-berry weight-loss products with “fake” news reports and deceptive claims. FTC v. Circa Direct LLC, No. 11-2172 (D.N.J., order filed June 13, 2012). Among other matters, the court seeks FTC’s views on whether the agency has shown it was likely to succeed on the merits “without an admission of liability by the Defendants and with no evidentiary submissions before the Court.” The court also requests additional briefing on whether it “may consider the lack of an admission by the defendants in its public interest analysis under the [FTC Act].” When the parties submitted their first supplemental briefs, FTC Commissioner J. Thomas Rosch submitted a letter indicating that, in his view,…
The Campaign for a Commercial-Free Childhood (CCFC), Public Citizen and Corporate Accountability International are reportedly urging the PBS network to “end a four-year marketing agreement between the popular children’s show ‘Martha Speaks’ and the fast food chain Chick-fil-A.” The marketing agreement includes 15-second ads for the restaurant before and after the show and in-store giveaways at more than 1,600 Chick-fil-A locations. According to the watchdog groups, “an astounding 56 million Chick-fil-A Kids’ Meals—which contain as much as 670 calories and 29 grams of fat—were distributed in Martha Speaks co-branded bags” in 2011. The groups also called for PBS member station WGBH, which produces “Martha Speaks,” to withdraw the ads from nomination for a children’s marketing award. “PBS deserves lots of awards, but using a beloved character to lure kids to a fast food restaurant is nothing to celebrate,” said CCFC’s Susan Linn. See CCFC Press Release, May 23, 2012.
