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On October
21, leading experts from around the nation gathered at
Loyola Law School in Los Angeles to share cutting-edge
strategies to address one of the most hotly debated topics
of our time: curbing junk food marketing to kids. The legal
symposium co-sponsored by the Center for Informed Food
Choices (publisher of Informed Eating) and entitled,
“Food Marketing to Children and the Law” aimed to fill in
the enormous void left by the federal government. What the
Federal Trade Commission and Department of Health and Human
Services could not (or would not) accomplish in its lame
“workshop” held over two days this summer (see Informed
Eating, August 2005), we were able to in just a few
invaluable hours.
Here is what
one satisfied attendee, Debora Pinkas of the Public Health
Law Program in Oakland, had to say: “The conference was
extremely stimulating and well organized. I
appreciated appreciated the broad spectrum of
information presented and thought there was a good
balance between the theoretical and the practical. Every
single speaker brought something of importance to the
table.” Panelist Stephen Gardner called it "the best
conference I've been to in quite a while." The event kicked
off with introductory remarks by Professor Katie Pratt of
Loyola Law School (who was instrumental in helping to
organize this event) and CIFC’s Michele Simon, the Symposium
Coordinator. (To view the presentations linked below
requires Real Player, available free at
www.real.com)
Beyond Commercials: Food Marketing to
Children in the 21st Century
Our
keynote address was by Susan Linn, author of the disturbing
and excellent book, Consuming Kids (now out in
paperback). Linn starkly reminded us all why we were there
with endless images of popular children’s characters
adorning all manner of unhealthy food products, along with
new forms of technology such as cell phones, all designed to
reach children by undermining parental authority. “It’s not
the same as when you were a kid,” she said. “We have to stop
thinking about marketing and advertising as commercials,
because marketers and advertisers stopped thinking of them
that way a long time ago. What marketers want to do is
insinuate their brands into the hearts and minds of
children. They talk about branding children in the
interstitial moments of their lives.”
View Susan Linn’s
presentation
Historical Perspective on FTC Rulemaking and
Why it Failed
The panel on
“Public and Private Responses” began with a talk by Tracy
Westen, former deputy director of the Bureau of Consumer
Protection at the Federal Trade Commission. Westen was
charged with initiating the FTC rulemaking procedure back in
the late 1970s known as “Kid-Vid,” which aimed to address
the problem of junk food marketing to children. Westen
explained how that effort ultimately failed due to a lethal
combination of political wind-shifting, corporate lobbying,
and definitional challenges. Westen thinks the problem is
even worse today with more forms of marketing, and
that the evidence of a connection to harm is
even stronger. He also does not believe the First Amendment
is a barrier to regulation because deceptive ads are not
protected free speech and he said that ads aimed at young
children are inherently deceptive.
View Tracy Westen's
presentation
Assessing Effectiveness of Self-Regulation: A
Case Study of the Children's Advertising Review Unit
Next, Ellen
Fried, of the Rudd Center for Food Policy and Obesity at
Yale University, presented a case study to evaluate the
effectiveness of self-regulation. Taking the place of
federal guidelines is the self-regulatory body called the
Children’s Advertising Review Unit or CARU, which is funded
and partially directed by industry members. While Fried was
working for the Center for Science in the Public Interest
(CSPI), she filed several complaints with CARU, citing
specific Kraft ads that were inconsistent with CARU
guidelines. Although CARU agreed with CSPI’s allegations,
Kraft and other companies kept running similar ads (and
still do). In view of the frequent, continued violation of
CARU guidelines without meaningful consequence, Fried
concluded that industry self-regulation has not been and
will not be an effective tool for regulating junk food
advertising aimed at children.
View Ellen Fried’s presentation
Can Food Companies be Trusted to
Self-Regulate? An Analysis of Corporate Deception and
Lobbying to Undermine Children’s Health
Next,
Informed Eating’s Michele Simon presented on whether the
food industry can be trusted to self-regulate, given its
track record in undermining children’s health. Her talk
highlighted the numerous states where trade groups such as
the Grocery Manufacturer’s Association and companies such as
Coca-Cola have lobbied hard to prevent legislation from
passing that would remove junk food and soda from schools.
While on the one hand, we should be encouraged by the
tremendous amount of activity at the state level and can
look to legislation as an important legal tool to address
the problem of targeting children in schools, Simon also
asks the hard question: is this a viable strategy given the
huge resources required to overcome corporate opposition?
Simon also discussed the myriad ways that food companies
make misleading statements about “being part of the
solution,” in order to deflect government regulation. For
example, Coca-Cola is fond of saying how they don’t market
to children under age 12, but Coke is sold in elementary
schools. Simon concludes that the food industry cannot be
trusted to self-regulate and cautions advocates to be wary
of industry claims of responsible practices because a
corporation’s fundamental drive for profit will always trump
children’s health.
View Michele Simon’s presentation
Litigation as a Tool in Food Advertising to
Children
Next,
Stephen Gardner, litigation director for the Center for
Science in the Public Interest, explained how one might sue
SpongeBob SquarePants for targeting children with junk food
ads. (Or rather, sue Nickelodeon, the character’s “owner”
for deceiving kids.) Gardner showed several video clips of
SpongeBob hawking products that clearly blurred the line
between program and promotion. It is illegal to engage is
such “host selling” aimed at kids. Gardner explained how
state consumer protection laws may be utilized to stop this
practice. Gardner concludes that ads using children’s
favorite characters and other techniques such as product
placement in children’s movies such as Shark Tales and
Scooby Doo are
potentially “actionable” (as trial lawyers say)
through litigation.
View Stephen Gardner’s
presentation
The Commercial Speech Doctrine and Junk Food
Advertising to Children
Next, the
panel on the First Amendment offered four experts’ views of
the “commercial speech doctrine,” which is that legal aspect
of free speech that specifically relates to advertising.
First up, David Yosifon, visiting professor at Rutgers
University School of Law, laid the groundwork by explaining
the history of jurisprudence related to advertising as well
as the Supreme Court’s current approach to commercial
speech. Yosifon explained: “Commercial speech is entitled to
First Amendment protection, but not as much protection as
social and political speech.” Next, Yosifon explained how in
the past ten years, the Supreme Court has tended toward a
more strict interpretation of this doctrine, most notably in
2001, when a Massachusetts law was struck down as
unconstitutional. That state law would have banned, among
other things, tobacco advertising on billboards or on store
fronts within 1,000 yards of schools. The Court’s reasoning
was that the law as drafted was too broad because it would
also limit information intended for adults. Finally, Yosifon
also briefly discussed his own paper in which he questions
the Supreme Court’s assumptions about free agency and
paternalism and argues that a ban on junk food marketing to
kids could and should withstand constitutional scrutiny.
View David Yosifon’s presentation
A Public Health Approach to the Commercial
Speech Doctrine
Next, Jason
Smith, of the Public Health Advocacy Institute, spoke about
the historical context of a public health approach to the
law, as well as the political origins of the First
Amendment. Smith argued
that limiting harmful advertising directed at children
implicates none of the political dimensions of the First
Amendment. “Instead, it is a reasonable, rational, and
necessary part of the police power, and is justifiable under
current commercial speech jurisprudence,” Smith said. He
argued
that by applying a population-based perspective that
recognizes the value of public health protection, the
significance and agency of populations, and the utility of
empirical evidence, courts can provide significant and
robust protection for speech while granting government the
room required to protect population health.
View Jason Smith’s presentation
Prohibiting Product Placement and the Use of
Characters to Market Junk Food to Children
Next, Angela
Campbell, of the Georgetown University Law Center, argued
that two particular forms of junk food marketing to
children, the use of characters and product placement are
deceptive and therefore Congress should pass legislation
that would prohibit them. Product placements have increased
dramatically in recent years. For example, in 2003, there
were more than 2,000 branded appearances of Coke on American
Idol, the top-rated show for kids aged 2-11. While federal
rules do not allow product placements on programs primarily
designed for kids under age 12, programs like American Idol
also targets adults, so doesn’t come under the ban. Campbell
then discussed how her proposal would be consistent with the
First Amendment because such a ban would only apply to
deceptive ads aimed at children. With this simple yet
elegant analysis, Campbell laid to rest the myth that the
First Amendment serves as a barrier to federal regulation of
junk food marketing to kids.
View Angela Campbell’s presentation
Commercial Speech and Advertising: Lessons
Learned from the Tobacco Wars
Next, Randolph Kline, of the
Public Health Law Program, spoke about lessons learned from
tobacco control that can be applied to junk food marketing.
He recommended focusing more on regulating the product, as
opposed to restricting the advertising for the product,
because doing so does not implicate the First Amendment at
all. For example, banning soda in schools is perfectly
legal. Another idea that has not yet been tried is to ban
the use of toys to sell meals, “so no more Happy Meals, only
unhappy meals,” Kline said. He also explained a side benefit
to banning the product is that you no longer have the
related advertising. Another idea is land use restrictions,
which Kline called a “stealth policy that is underused by
public health.” For example, you can limit the location and
the number of fast food outlets that are allowed in an area.
While most people think it’s harder to regulate food as
opposed to tobacco, Kline pointed out that because there are
many more ways that food is marketed to kids, we actually
have more regulatory options. For example, Kline proposed
banning junk food ads in schools, especially if you’ve
already banned the products, since there’s really no
justification for the ads. Kline concluded that there are
still many ways that food ads can be constitutionally
regulated.
View Randolph Kline’s presentation
Changing the Food Environment: Community
Engagement Strategies and Policy Tools that Address the
Influence of Marketing to Kids
Finally,
Amanda Shaffer, of the Urban and Environmental Policy
Institute at Occidental College, discussed the importance of
garnering grassroots support and engagement at the community
level. She described a current project in Los Angeles called
Project CAFÉ, which stands for Community Action on Food
Environments, and is a collaboration with three
community-based organizations. The goals include
understanding the barriers to healthy food in schools and
neighborhoods in order to overcome those challenges. Shaffer
also described “commercialism walk-throughs” designed to
assess how much advertising is in public schools. Such a
project was taken up in Seattle several years ago, which led
to the removal of Channel One and the banning of soda
advertising in schools in 2001. This in turn led the school
board to restrict the sale of soda and junk food in schools
and to eliminate exclusive soda contracts altogether. So
sometimes even just conducting an assessment of the
advertising environment can raise enough awareness and
concern to lead to positive policy interventions. Finally,
all of the panelists engaged in a lively discussion with
audience members who shared their ideas and challenges.
View Amanda Shaffer’s presentation
The
Beginning of a New Dialogue
The entire
event was extremely enlightening and stimulating and we
certainly achieved our goal of expanding the dialogue beyond
its previous parameters. Hopefully, this symposium was just
the beginning of a conversation that continues to question
the status quo, a dialogue that says it’s not acceptable for
the government to allow corporations unfettered access to
children’s minds just for the sake of profits, at the very
real cost of their health and well-being. The full text of
the ten speakers’ and five additional authors’ papers will
be available in print sometime early next year. Stay tuned
to Informed Eating to learn exactly when. If you
would like additional information about the event or would
like to contact any of the speakers, please email Michele
Simon at: Michele@informedeating.org.
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