FTC Sharpening Focus on Ads Marketing Food to Children

by Justin Prochnow

The Centers for Disease Control and Prevention (CDC) declared American society has become obesogenic. Obesity rates continue to climb and the outcry has increased similarly from public interest groups, such as the Center for Science in the Public Interest (CSPI) and others, for government solutions to the obesity problem. Whether as a result of recommendations made by President Obamas White House Task Force on Childhood Obesity or through nutritional standards proposed by the Interagency Taskforce on Food Marketed to Children, the marketing of food to children is an area that has received increased consideration in the quest to solve the obesity dilemma. Such attention has placed additional pressure on FTC, the governmental agency tasked with regulating advertising, to further intensify its regulation of advertisements marketing food to children. For companies in the food and beverage industries, this heightened scrutiny means all claims made for products marketed to children must be carefully evaluated to ensure strict compliance, and to avoid FTC enforcement action.

Movement at the White House

While FTC and other organizations have been increasing their focus on advertisements marketing food to children over the past year or two, the marketing of food products to children garnered special attention at the highest levels of the federal government in 2010. In February, first lady Michelle Obama launched her effort to address the childhood obesity epidemic with the Lets Move! campaign. Its goal is to solve the problem of childhood obesity within a generation so children born today will reach adulthood at a healthy weight. After the launch of the Lets Move! campaign, President Obama complemented the campaign by creating the first-ever Task Force on Childhood Obesity to help develop a national action plan to maximize federal resources and assist the Lets Move! campaign in reaching its goal.

In May 2010, the Task Force released its report outlining an action plan for combating childhood obesity. The Task Force Report presented a series of 70 recommendations for addressing the problems of childhood obesity, including providing healthy food in schools, motivating children to be more physically active and imploring federal agencies to implement additional programs. Specifically, pages 28 to 32 of the Task Force Report address the issue of food marketing, declaring the marketing of food to children and adolescents to be big business and emphasizing, the marketing of food products can also be a powerful tool to drive the purchase of healthy products, and to communicate important information about healthy eating choices. While FTC is charged with monitoring and evaluating the progress made in marketing efforts that are meant to help reduce childhood obesity, the Task Force Report also includes a handful of recommendations for industry companies, such as extending self-regulation programs to cover all forms of marketing, and limiting the licensing of popular characters to food and beverage products that are healthy. The Task Force Report makes it clear that, moving forward, an increased emphasis will be placed on the need for the food and beverage industry to assist federal agencies, such as FTC, in policing the marketing of food to children.

Interagency Working Group

In addition to the efforts of the president and the first lady in fighting childhood obesity, a joint taskforce of governmental agencies has been developing nutritional standards for food marketed to children. The Interagency Working Group on Food Marketed to Children, formed in Spring 2009, is a task force comprised of four governmental agencies, including FTC, the CDC, FDA and USDA. Late last year, FTC hosted a workshop, Sizing Up: Food Marketing and Childhood Obesity, which brought together industry representatives, academics, governmental officials and consumer advocates to discuss issues related to marketing food to children. The workshop culminated with the presentation of Tentative Proposed Nutrition Standards from the Interagency Working Group.

Essentially, the Tentative Proposed Nutrition Standards contain three proposed standards. Standard I classifies certain foods as part of a healthful diet and may be marketed to children without meeting the requirements of Standards II and III. These foods include 100-percent fruit and fruit juices, 100-percent vegetables and vegetable juices with low-sodium content, 100-percent non-fat and low-fat milk and yogurt, 100-percent whole grains, and 100-percent water. Standard II requires food marketed to children must provide a meaningful contribution to a healthful diet. In order to comply with Standard II, food must contain significant amounts of fruits, vegetables, low-fat dairy, lean protein or whole grains, measured either by weight standards or serving size standards. Standard III mandates foods marketed to children must not contain more than limited identified amounts of saturated fat, trans fat, sugar and sodium.

The Tentative Proposed Nutrition Standards will not actually be codified into official regulations, although they reflect the collective thinking of the four governmental agencies and provide clear insight as to how agencies, such as FTC, will likely regulate the marketing of food to children. These Tentative Proposed Nutrition Standards were released in December 2009 so industry and the public could submit comments before the Interagency Working Group submitted its final report to Congress. Pursuant to the FY 2009 Omnibus Appropriations Act (H.R. 1105), the final report was to be made to Congress no later than July 15, 2010; however, the deadline came and went without any report being made to Congress and without any explanation for the failure to produce such a report. Thus, industry and the public together await the final report and any changes to the Tentative Proposed Nutrition Standards.

FTC Regulation

While various groups have suggested a tightening of the reins on the marketing and advertising of food to children is not only prudent, but necessary to help stem obesity rates, the enforcement direction of FTC is ultimately what serves to help shape the marketing campaigns of companies in the food and beverage industry. FTC demonstrated, through both words and actions, that it will review advertisements of food to children more carefully. In one of her first speeches earlier this year, new FTC Commissioner Julie Brill identified childhood obesity as a real threat to the health of our children and named food marketed to children as an the important area to address. In that speech, she called for industry to take the lead and do more to change the landscape. She indicated FTC will look closely at advertising that tries to be cute, noting claims such as less sugar or reduced calories dont necessarily mean products are a smart choice for children or better for you. Additionally, Brill commented on the advertising methods outside of the traditional advertising techniques will be more closely monitored, such as product placement, video games, contests, character licensing, tie-ins with sports teams, etc.

This increased focus stretches to all advertising claims made for food marketed to children, not just those that seem to be related to obesity issues. In January 2010, FTC sent out warning letters to 11 different companies regarding claims promoting omega-3 fatty acids and the benefits to childrens brain, and visual function and development. On June 3, 2010, in a joint statement from Brill and FTC Chairman Jon Leibowitz, FTC announced it was modifying the previous order entered against the Kellogg Co. for making unsubstantiated or misleading claims, this time focusing on health claims made regarding the ability of Rice Krispies cereal to boost childrens immunity. In each of these actions, FTC reiterated the fundamental principles for complying with the FTCs truth-in-advertising laws, namely that claims must be truthful, not misleading and supported by adequate substantiation.

All of this attention should put food and beverage companies, including dietary supplement companies, on notice that claims made in advertisements for products marketed to children will be reviewed with special scrutiny for the foreseeable future. Experienced personnel familiar with the applicable regulations pertaining to labeling and advertising should review claims to determine each statement is carefully crafted to ensure it is accurate and not misleading, and  each statement is supported by competent and reliable scientific evidence to support the claims. In their June 3, 2010 joint statement, Brill and Leibowitz succinctly characterized FTCs commitment to regulating advertisements marketing food to children, stating, FTC will act swiftly to challenge questionable health claims about childrens food products. Our kids and parents deserve no less.

Justin J. Prochnow is an Of Counsel lawyer in the Denver office of the international law firm of Greenberg Traurig LLP. His practice concentrates on legal issues affecting the food and beverage, dietary supplement and cosmetic industries. He can be reached at (303) 572-6562 or [email protected] .