• by Karlene Lukovitz  @KLmarketdaily, December 17, 2009

During the Federal Trade Commission's public forum on food marketing and childhood obesity this week, Association of National Advertisers EVP Dan Jaffe laid out multiple arguments against any new, government-imposed restrictions on advertising -- and also maintained that an overemphasis on advertising is distracting attention and resources from broader efforts needed to address the obesity problem effectively.

Jaffe praised the FTC for upholding First Amendment protections in recent decades, and urged the commission to continue that policy despite "a growing chorus of consumer activists who claim that the most effective and efficient way to combat childhood obesity is through broad advertising suppression."

"The types of non-voluntary [advertising] restrictions currently being advocated" -- including restricting ads to "tombstone" formats -- "are both unconstitutional and will do real harm to children by unnecessarily restricting truthful and non-deceptive food advertising," Jaffe contended. "The government can protect children and effectively combat childhood obesity without trampling on the First Amendment."

He pointed out that in 1981, after a three-year FTC rulemaking review of constitutional and other issues, the commission itself recommended dropping consideration of banning children's food advertising because it could not identify "workable solutions" that could be implemented by the FTC. He also cited a 2004 paper by Howard Beales, then director of the FTC's Bureau of Competition, that concluded that "restricting truthful advertising is not the way to address the health concerns regarding obesity."

Jaffe challenged the government's "overwhelming weight of attention" on proposals to restrict advertising, "rather than on seeking non-speech restriction-related solutions" to childhood obesity. Citing research that has found no causal links between advertising and childhood obesity, such as a 2005 Institute of Medicine study, he characterized the current focus on food advertising as "a substantial distraction" from a "more searching analysis and more effective approach" to dealing with the "real contributors" to the problem.

"Only a comprehensive and coordinated effort involving the local, state and federal governments, with substantial federal funding, will have any chance to reverse these trends" -- but the government has instead been reducing funding for various initiatives aimed at addressing the problem, Jaffe said.

In contrast, he pointed to progress being realized through voluntary initiatives by the food marketing industry, including the Council of Better Business Bureaus' Children's Food and Beverage Advertising Initiative, updating and expansion of the Children's Advertising Review Unit guidelines, and the Healthy Schools Partnership.

Jaffe also took issue with arguments presented by two legal professors as part of a panel discussion of First Amendment issues.

David Yosifon, assistant professor, Santa Clara University Law School, argued that the "rational conception of human behavior" that underlies legal and societal assumptions about how a competitive marketplace works is no longer valid in an environment in which marketers can "exploit behavioral and neural techniques" to induce hunger, rather than simply offering products in response to consumer desires and behaviors. At minimum, a "more robust understanding" of what types of information are deemed "false and misleading" is needed, he maintained.

Santa Clara University Law School and Tamara Piety, associate professor of law, University of Tulsa, cited legal precedents -- including Supreme Court rulings against the tobacco industry -- as evidence that fraudulent commercial messages are exempt from First Amendment protection.

Jaffe said such arguments ignore the Supreme Court's "clear increasing protection for commercial speech" in recent rulings. He also dismissed the "notion" that "corporate America has the ability to impose overpowering thought control and to consistently manipulate the public at large," and warned that an assumption that consumers are incapable of making informed decisions in the marketplace "has implications far beyond the commercial advertising arena to the whole efficacy of individual choice in a democratic society."