Authored by the director of legal initiatives at the Rudd Center for Food Policy and Obesity at Yale University, this article purports to demonstrate that food and beverage advertising to children is deceptive and misleading speech and therefore not protected under the First Amendment. According to the author, because this speech is not protected, the Federal Trade Commission (FTC) has the authority to restrict the industry’s marketing to youth. The article discusses scientific studies about the effects of advertising on children and analyzes court opinions addressing First Amendment and commercial speech issues. The author then contends, “If children under a certain age cannot understand that the communication is intended to persuade them, then this is a deceptive and misleading way to propose a commercial transaction to them. Because the marketing messages cannot be presented in a way in which they could understand the intent of advertising due to their limited cognitive…
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The Center for Digital Democracy and the Berkeley Media Studies Group have released a report, “Alcohol Marketing in the Digital Age,” that discusses some of the specific ways that alcohol beverage companies are conducting contemporary advertising campaigns using digital media, data collection, behavioral targeting, social media, and online gaming and video that allegedly appeal to underage youth. The report, which was reportedly submitted to the Federal Trade Commission (FTC), calls on that agency, as well as the state attorneys general, to “investigate the data collection, online profiling, and targeting practices of alcohol beverage companies online, including social media data-mining technologies. The FTC and other regulators need to determine whether alcohol beverage ad targeting is reaching specific young people and their networks.” While the report notes that beer and alcohol companies have “a self-regulatory code of ethics that includes provisions for limiting exposure to marketing messages to underage youth,” its authors…
Featuring colorful graphics purporting to hawk products ranging from sugar-sweetened cereals and acne medication to sporting goods and meals sold at fast-food restaurants, a new website created by the Federal Trade Commission’s (FTC’s) Bureau of Consumer Protection seeks to provide children with the tools they need to properly understand and assess commercial speech. Designed for children in grades four through six, the interactive game with accompanying classroom materials urges children to keep three questions in mind whenever and wherever they are exposed to advertising: Who is responsible for the ad? What is the ad really saying? What does the ad want me to do? FTC announced the website’s launch in late April 2010, and bureau director David Vladeck said that its goal is “to help kids start to understand the commercial world they live in and to be alert to, and think critically, of advertising.” Vladeck reportedly confessed that he…
The Fourth Circuit Court of Appeals has turned aside a First Amendment challenge to a state law restricting advertisements for alcoholic beverages in college student publications. Educ. Media Co. v. Swecker, No. 08-1798 (4th Cir., corrected decision filed April 19, 2010). The restrictions at issue did not allow advertisements for alcohol in any college publication distributed primarily to students younger than 21, but did allow dining establishment advertisements in those publications to refer to alcohol. The student-run newspapers challenging the restrictions claimed that they were losing tens of thousands of dollars in ad revenues annually because of the restrictions, which they contend do not advance the government’s interest in combating underage drinking. The court found sufficient evidence in the record to link decreasing demand for alcohol by college students with the advertising restrictions, citing in particular the inimitable role that student publications play on campus and “the fact that alcohol…
A recent psychology study has reportedly suggested that children younger than age 5 “have emerging knowledge of brands that are relevant in their lives.” Anna McAllister and T. Bettina Cornwell, “Children’s Brand Symbolism Understanding: Links to Theory of Mind and Executive Functioning,” Psychology & Marketing, March 2010. Noting previous research suggesting that “brand symbolism understanding does not develop until 7 to 11 years of age,” the study authors nevertheless found that younger children not only recognize brands, but are already beginning to understand brands “as social systems.” McAllister and Cornwell first asked 38 children ages 3 to 5 to identify brand name logos for 50 brands across 16 product categories, including fast food. The researchers then interviewed 42 3-to-6 year olds to determine their brand symbolism understanding. “Surprisingly, there were children as young as 3 who were making very strong judgments when comparing McDonald’s and Burger King,” one author was quoted…
The Center for Science in the Public Interest (CSPI) has issued a report card that rates 128 companies for their policies on marketing food to children. According to CSPI, most of the food makers, restaurants and entertainment companies failed “either for having weak policies or for failing to have any policies whatsoever.” Based on research conducted in summer 2009, the report found that industry spends some $2 billion on youth marketing annually. Grades in the “Report Card on Food-Marketing Policies” ranged from a B+ for Mars, Inc., for its policy to exclude marketing to children ages 12 and younger, to an F for Denny’s “for marketing to children through its children’s menu, which includes many nutritionally poor items; games on its Web site; and a kid’s birthday club.” In all, seven of the companies earned a D, and 95 received an F. “Despite the industry’s self-regulatory system, the vast majority…
Yale University’s Rudd Center for Food Policy and Obesity has published a study alleging that the “number of products with youth-oriented cross-promotions increased by 78 percent” between 2006 and 2008. Jennifer Harris, et al., “Marketing foods to children and adolescents: licensed characters and other promotions on packaged foods in the supermarket,” Public Health Nutrition, March 2010. After examining 397 products gathered on three separate occasions from one large U.S. supermarket, researchers reported that (i) “71% of cross-promotions involved third-party licensed characters”; (ii) “57% appealed primarily to children under 12 years of age”; (iii) “the use of other forms of promotion increased from 5% of the total in 2006 to 53% in 2008”; and (iv) “promotions targeting pre-school and general audiences increased from 23% to 54% of the total.” In addition, they wrote, “Only 18% of products met accepted nutrition standards for foods sold to youth, and nutritional quality declined during…
The Senate Committee on Health, Education, Labor, and Pensions conducted a hearing March 4, 2010, to address childhood obesity. Among those testifying was U.S. Surgeon General Regina Benjamin, who provided an overview of the “epidemic,” examples of successful individual and community interventions and recent federal initiatives to “help Americans achieve optimal health.” She claimed that keeping pregnancy weight gain within recommended limits and breastfeeding exclusively for the first six months after birth have been shown to prevent childhood obesity. Benjamin also called for changing social and physical environments to support families in making healthy choices. Among the changes she recommended were increasing exposure and access to healthy affordable foods and making physical activity opportunities more accessible. Others testifying during the hearing included a Pittsburgh Steelers running back and a representative of the Robert Woods Johnson (RWJ) Foundation Center to Prevent Childhood Obesity. The foundation sponsored a Health Affairs briefing on childhood…
The Cornucopia Institute has written to the CEOs of Sara Lee and National Public Radio to express its concerns with the marketing campaign for Sara Lee’s EarthGrains® products. In its February 22, 2010, letter, the institute refers to a study it made of the claims and calls for Sara Lee to “immediately suspend promotional activities until your organization can complete its own analysis of our findings.” Institute co-director Mark Kastel stated, “Even though they’ve done a countrywide media rollout, including underwriting spots on National Public Radio, Sara Lee is, in essence, playing a shell game. . . . If advertising executives could be charged with malpractice, this would be a major felony.” According to the institute, Sara Lee claims that its EarthGrains® bread contains, “Eco-Grain™,” an ingredient that “is more sustainable than organic grain.” The institute calls this a “crass and exploitive marketing ploy” that has angered the organic community…
This article claims that recent efforts to monitor and regulate marketing to children has had “an interesting side effect,” that is, a shift away from traditional tactics to “games, contests and events where the advertiser has only a subtle presence— exactly the opposite of what some of the advocacy groups were aiming for.” According to New York Times journalist Stephanie Clifford, children’s publications have increasingly sought to integrate corporate sponsorships with contests and features that emphasize their content. “Instead of just a straight selling of product, it’s all about how we tell the message in the magazine and how we engage with the kids,” stated one spokesperson for National Geographic Kids, which reported a decline in ad revenue “largely because of the economy but in part because of heightened concern about food advertising.” “But these kinds of strategies, created in part to sidestep advocates’ criticisms, are upsetting them all the…
