The Federal Trade Commission (FTC) recently hosted a forum titled “Sizing up Food Marketing and Obesity,” which heard proposals from federal agencies, consumer watchdogs and industry representatives for regulating food advertising to children. In addition to addressing new research, First Amendment issues and self-regulatory initiatives, the forum unveiled a set of proposed nutritional standards (SNAC PAC) developed by an interagency working group at the request of Congress. Co-authored by FTC, the Centers for Disease Control and Prevention, the Food and Drug Administration (FDA), and the Department of Agriculture, SNAC PAC sets out three standards designed to limit the marketing of foods to children ages 2 through 17. Standard I describes foods that “are part of a healthful diet and may be marketed to children without meeting Standards II and III,” including (i) “100 percent fruit and fruit juices in all forms”; (ii) “100 percent vegetables and vegetable juices in all forms,” provided the product does not exceed “140 mg of sodium per RACC” [reference amount customarily consumed]; (iii) “100 percent non-fat and low-fat milk and yogurt”; (iv) “100 percent whole grains”; (v) “100 percent water.” This standard defines “100 percent” as “no added nutritive or non-nutritive sweeteners and no other functional ingredients added to the product, except flavoring for water, milk and yogurt.”

Standard II stipulates that “foods marketed to children must provided a meaningful contribution to a healthful diet” by either (i) containing at least 50 percent by weight of one or more of the following: “fruit; vegetable; whole grain; fat-free or low-fat milk or yogurt; fish; extra lean meat or poultry; eggs; nuts and seeds; or beans” or (ii) containing one or more of the following per RACC: “0.5 cups of fruit or fruit juice,” “0.6. cups vegetables or vegetable juice,” “0.75 oz. equivalent of 100 percent whole grain,” “0.75 cups milk or yogurt; 1 oz. natural cheese; 1.5 oz. processed cheese,” “1.4 oz. meat equivalent of fish or extra lean meat or poultry,” “0.3 cups cooked dry beans,“ “0.7 oz. nuts or seeds,” or “1 egg or egg equivalent.”

The third standard provides a list of “nutrients to limit,” such as saturated fat, trans fat, sugar, and sodium. In particular, Standard II provides that food products marketed to children (i) cannot contain more than 1 g of saturated fat per RACC; (ii) cannot derive more than 15 percent of their calories from saturated fat; (iii) cannot contain any trans fat (defined as less than 0.5 g); (iv) cannot contain more than 13 g of added sugars per RACC; and (v) cannot contain more than 200 mg sodium per portion.

The interagency working group reportedly plans to submit to Congress, no later than July 15, 2010, a report containing these recommendations and other findings on the “positive and negative contributions of nutrients, ingredients and food” to children’s diets. The Center for Science in the Public Interest (CSPI) has since praised this initiative, stating in a December 15, 2009, press release that these standards would represent “one of the most significant developments in this area in 30 years. “ According to CSPI Nutrition Policy Director Margo Wootan, industry should take the interagency working group’s recommendations “as a wake-up call, and soon [phase] out the discredited practice of marketing junk food to kids altogether.”

Department of Health and Human Services (HHS) Secretary Kathleen Sebelius also outlined steps to improve front-of-package (FOP) labeling, warning that the agency will take “appropriate enforcement action” against labels “that appear to be misleading.” As Sebelius noted in her keynote address, HHS is working with FDA to develop “consistent criteria for food labels,” as well as a “voluntary, government-approved symbol system” that would “give healthy producers an advantage” and incentivize product reformulations. “The companies that make these products are not stupid,” stated Sebelius. “The reason they spend $1.6 billion a year—more than the GDP of Belize—marketing food to children is because it works.” See Reuters, December 15, 2009.

Meanwhile, industry and consumer representatives offered their perspectives in a forum panel dedicated to the progress of self-regulatory initiatives. One participant from the University of Arizona presented a report titled “The Impact of Self-Regulation on the Nutritional Quality of Foods Advertising on Television to Children,” which used the “Go-Slow-Whoa” food rating system developed by HHS to determine that “the majority of advertisements from companies participating in the Children’s Food and Beverage Advertising Initiative are for nutritionally poor Whoa products, which should only be consumed on special occasions.” Commissioned by Children Now, the study also alleged that “more than one-quarter of all food and beverage advertising to children originates from companies that do not participate in the initiative.” Thus, the report concluded, “the Children’s Food and Beverage Advertising Initiative has not improved the overall nutritional quality of ads targeting children,” while this “advertising environment… continues to expose them to nutritionally poor food products, contributing to the current obesity epidemic.” See Children Now Press Release, December 14, 2009.-

The vice president and director of the Better Business Bureau’s Children’s Food and Beverage Advertising Initiative, Elaine Kolish, however, has reportedly disputed these findings. “[Dozens] and dozens of products have been meaningfully reformulated or newly introduced to meet nutrition standards,” Kolish was quoted as saying. “Because of these reformulations, involving reductions in calories, fats, sodium or sugars, the nutritional profile of foods in child-directed advertising has improved significantly… While we understand and appreciate exhortations for companies to keep improving the products they advertise to kids, that’s exactly what they’ve been doing.” See,
December 15, 2009.

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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.