• by Karlene Lukovitz , November 30, 2009

Despite the "very impressive strides" made in the children's arena since the Council of Better Business Bureaus' (CBBB) Children's Food & Beverage Advertising Initiative (CFBAI) was established in late 2006, food marketers have a lot to be concerned about, warned John P. Feldman, a Washington, D.C.-based partner in the law firm of Reed Smith, during a recent Food Institute Webinar on issues related to advertising to children.

The Webinar, moderated by Tufts University professor James Tillotson, also featured Elaine Kolish, VP/director of CFBAI, and Christina Poturica-O'Neill, senior advertising review specialist for the CBBB's Children's Advertising Review Unit (CARU).

Feldman -- who frequently represents clients before CARU and the National Advertising Division (NAD), the leading advertising self-regulatory body -- pointed to a speech by new Federal Trade Commission Bureau of Consumer Protection director David Vladeck at the recent NAD conference as evidence of the FTC's "ambivalence" when it comes to food marketing self regulation.

Vladeck said that, while controversy surrounds the question of whether food marketing directly contributes to unhealthy eating habits and childhood obesity, "certainly no one would argue that children should be actively encouraged to consume foods high in fat, sugar, and sodium." Therefore, "changing the landscape of food marketing to kids is an important goal" for the FTC, he confirmed. And while acknowledging the progress made through CFBAI, Vladeck stressed that "much more needs to be done."

"What I read from [Vladeck's] speech is that there is some ambivalence as to whether self-regulation by itself can be relied upon to get the commission where it wants to go," observed Feldman. "Where does it want to go? It's unclear, but it sounds like they want to go in a direction that would put them back to the 1970's, when the commission was a national nanny," making decisions that children should not be encouraged to eat "perfectly legitimate" products being created and sold by marketers, he said.

"The idea of 'better-for-you' foods has been and is going to be called into question by a vociferous group of critics, and these critics will be heard even more distinctly now," Feldman predicted. During an FTC-hosted public forum on food marketing and childhood obesity to be held on Dec. 15, "we're likely to hear the refrain that better-for-you foods aren't good-for-you foods" and "statements that are largely out of context and often completely unsubstantiated -- oftentimes misreading some of the so-called 'scientific studies' out there that draw a relationship between marketing and obesity," he charged. Feldman specifically cited new research being used to support the concept of "junk food addiction."

He also said that it is "often politically impossible for the food industry to step up and say, 'No, we are not selling cigarettes; we are not selling dangerous things. Sugared cereal, like any other food in moderation, is fine.'" However, he added that, "to a certain degree, if you don't take a stand ... it's not going to be just children under 12, it's going to be teenagers, young adults" -- and possibly even adults. If the FTC's position is, "This is bad for you, we want healthy foods as opposed to better-for-you foods, then why shouldn't [this] apply to a 19-year-old as much as a 17-year-old?," Feldman asked, calling the scenario "a slippery slope."

Actually, Vladeck straightforwardly stated at NAD that the FTC's focus on food marketing "is not limited to kids." He noted that the improved kids' attentiveness claims that Kellogg attributed to eating Frosted Mini-Wheats, which were challenged by the FTC, "were clearly directed to parents." He also said that the commission is concerned about health benefit claims made for "so-called 'functional foods.'"

The heat is building from many directions. Congress has charged the new Interagency Task Force on Nutritional Standards -- comprising representatives of the FTC, Food and Drug Administration, Centers for Disease Control and Prevention, and the Department of Agriculture (already dubbed the "SNAC PAC") -- with developing recommended nutritional standards for foods marketed to consumers 17 and younger by July. A Federal Register notice seeking public comment on such standards is expected to be published before year's end.

Separately, a newly proposed "Healthy Kids Act" would empower the Federal Communications Commission to limit the amount of kid-targeted advertising for food and beverage products with certain levels of trans fat, sugars and sodium and outright ban ads for some products. In addition, the major food companies participating in "Smart Choices" recently suspended the program after the FTC announced that it is investigating the validity of manufacturer-created nutritional labeling standards.

Moreover, having made several recommendations in its 2008 report on food marketing for kids and adolescents (based on studying 2006 marketing data from food companies), the FTC has now initiated a follow-up study expected to be released in 2011. This spring, major food companies are again expected to receive "compulsory process orders" for a wide range of data about their marketing-to-kids practices (media used, frequency, costs etc.). The FTC will also seek "company research exploring the psychological and other factors that may contribute to food advertising appeal among children and teens," according to Vladeck.

Feldman advised companies likely to be queried to begin preparing now. Among other steps, they should determine which businesses within the company will be affected, assign responsibilities for compliance functions, and keep careful records of what is being done to comply, he said. The FTC has estimated that it should take between 400 and 600 hours at a cost of about $300 per hour for attorney time to comply, according to Feldman -- who cautioned that the costs could be higher in some decentralized companies.

CFBAI's Kolish reported on the progress of the now-16 CFBAI food company participants. She noted that the initiative's goal "is not to decrease the amount of child-directed F&B advertising," but to "change the mix, so that at least half the time or more, the ads are for healthier products" -- a goal to which the participants have adhered, along with reducing fat, sugar and calories in many products.

However, she said that it was also "worth noting" that 12 participants have now agreed that 100% (rather than the minimum requirement of 50%) of children's advertising in measured media will be for "healthier" foods, and that four have decided to stop engaging in child-directed advertising.

Kolish also said that both a 2007 Bureau of Economics study for the FTC spanning 1977 to 2004 and a follow-up study commissioned by Grocery Manufacturers of America spanning 2004 to 2007 showed the amount of F&B advertising to kids to be in decline. She added that in 2008, about 70% of F&B products advertised to kids were from CFBAI participants, meaning that presumably half of the ads were for "better-for-you" foods as defined in the companies' pledges.

Just last week, however, the Center for Science in the Public Interest lobbed its latest criticism, announcing that nearly 80% of foods advertised on Nickelodeon (versus 90% in 2005) are for foods of "poor nutritional quality" according to CSPI's own recommended kids' nutrition standards. "While industry self-regulation is providing some useful benchmarks, it's clearly not shielding children from junk food advertising, on Nick and elsewhere," said CSPI nutrition policy director Margo G. Wootan. "It's a modest start, but not sufficient to address children's poor eating habits and the sky-high rates of childhood obesity."

"I think that no one wants a return of the national nanny for children or adults," summed up Kolish, during the Webinar. "We hope that self-regulation will be given a chance to grow and innovate and continue the good work that [CFBAI] has begun."