by Marion Nestle

Currently browsing posts about: Marketing to kids

Feb 9 2012

Should the First Amendment protect the marketing of junk foods to kids?

For some time now, I’ve been arguing that legal scholars ought to be challenging the contention of food corporations that the First Amendment gives them the right to market foods any way they like, even to kids.

I simply cannot believe that the Founding Fathers of the United States intended the First Amendment for this purpose.

In December 2010, I urged public interest lawyers to examine current food marketing practices in the light of the First Amendment.  I am pleased to see that they are now doing so.

Samantha Graff of the National Policy & Legal Analysis Network to Prevent Childhood Obesity (NPLAN) forwards two co-authored articles published this month:

Health AffairsGovernment Can Regulate Food Advertising to Children Because Cognitive Research Shows It Is Inherently Misleading, by Samantha Graff, Dale Kunkel, and Seth E. Mermin.

The childhood obesity crisis has prompted repeated calls for government action to curb the marketing of unhealthy food to children. Food and entertainment industry groups have asserted that the First Amendment prohibits such regulation.

However, case law establishes that the First Amendment does not protect “inherently misleading” commercial speech. Cognitive research indicates that young children cannot effectively recognize the persuasive intent of advertising or apply the critical evaluation required to comprehend commercial messages.

Given this combination—that government can prohibit “inherently misleading” advertising and that children cannot adequately understand commercial messages—advertising to children younger than age twelve should be considered beyond the scope of constitutional protection.

American Journal of Public Health: Protecting Young People from Junk Food Advertising: Implications of Psychological Research for First Amendment Law, by Jennifer L. Harris and Samantha K. Graff.

In the United States, one third of children and adolescents are overweight or obese, yet food and beverage companies continue to target them with advertising for products that contribute to this obesity crisis.

When government restrictions on such advertising are proposed, the constitutional commercial speech doctrine is often invoked as a barrier to action. We explore incongruities between the legal justifications for the commercial speech doctrine and the psychological research on how food advertising affects young people.

These papers are a great start to the conversation, as was a previous contribution from these authors: A Legal Primer for the Obesity Prevention Movement, American Journal of Public Health, 2009.

First Amendment scholars: weigh in, please.

And while pondering these questions, take a look at Raj Patel’s piece in The Atlantic, “Abolish the food industry.”  In his view, the First Amendment issue is a no brainer:

I side with the American Psychological Association in thinking that advertising to children is unconscionable. Rather than dwell on the First Amendment issue, which strikes me as an easy case to make, I think it’s worth addressing a deeper question underlying the San Francisco cigarette-in-pharmacy ban: Why allow an industry that profits from the sale of unhealthy food at all?

Additions, February 14: Michele Simon sends links to additional information about this issue:

http://events.lls.edu/past/food-marketing-lr.html

http://www.appetiteforprofit.com/2011/01/27/why-the-happy-meal-is-already-illegal/

http://www.yaleruddcenter.org/resources/upload/docs/what/law/FTCFoodMarketingTV_JLME_3.10.pdf

 

Jan 23 2012

Catching up with items about beverage marketing

I’ve been saving up items about beverages, mostly having to do with marketing:

Soda companies vs. civic public health campaigns: In strategies reminiscent of those used by tobacco companies, soda companies are filing suit to obtain documents from public agencies all over the country.  Digging them up takes staff time and effort and slows down the real work of these agencies—the point of this approach.

Sonic’s marketing campaign, Limeades for Learning (“when you sip, kids learn”) encourages purchasers of its high-calorie drinks (620 for a medium, 950 for a large) to vote for school projects.

Dr Pepper Snapple’s diet—oops, low-calorie—10-calorie Dr Pepper Ten is aimed at men.  Men, it seems, like low-calorie sodas but squirm at the notion of diet sodas.

Coke covers both bases.  Diet Coke targets women and Coke Zero targets men in an “it’s not for women” campaign.   Is this ad offensive?  It not only excludes half the market, says Food Navigator’s Carolyn Scott-Thomas, but is

patronizing to both men and women in its reinforcement of what I had (perhaps naively) hoped were outdated stereotypes….It deliberately picks at the edges of our comfort zones.  Is it OK to be sexist if it’s done with irony?…Provocation is a blunt instrument.  It may prove effective for sales—perhaps as effective as sexually explicit marketing—but it is still crude and obtuse.”

She asks: “Would this ad be offensive if it involved a bunch of redneck clichés and proclaimed ‘it’s not for blacks’?  You bet it would.”

Coca-Cola has launched a global music effort to connect with teens.  Coke CEO Muhtar Kent says:

Our success in growing our sparkling category today depends on our ability to grow and connect with teens, the generation of tomorrow.

Pepsi, not to be outdone, has invented a social marketing vending machine for the digital age.  Buy a drink and you now have the opportunity to send one as a gift to a friend or a random stranger.

The Committee on Nutrition, American Academy of Pediatrics weighs in on sports and energy drinks.  Its tough report begins with the statement that “Sports and energy drinks are being marketed to children and adolescents for a variety of inappropriate uses.”

Sports drinks…may contain carbohydrates, minerals, electrolytes, and flavoring and are intended to replenish water and electrolytes lost through sweating during exercise.

In contrast…energy drinks also contain substances that act as nonnutritive stimulants, such as caffeine, guarana, taurine, ginseng, l-carnitine, creatine, and/or glucuronolactone, with purported ergogenic or performance-enhancing effects.

The report ends with this unambiguous conclusion:

the use of sports drinks in place of water on the sports field or in the school lunchroom is generally unnecessary. Stimulant containing energy drinks have no place in the diets of children or adolescents.

In response, Red Bull says it is not marketing to children.  Instead, it says, the company totally follows the “agreed codes of practice for the marketing and labelling of energy drinks.”

Just for fun I looked up some advertising budgets reported in Advertising Age. For 2010, Coca-Cola spent $267 million just to advertise Coke, Pepsi spent $154 million just to advertise Pepsi and another $113 million for Gatorade, and Dr. Pepper spent a mere $22 million for Snapple.

These expenses are just for those individual products and just for campaigns run through advertising agencies.  Pepsi’s total advertising budget that year was $1.01 billion.

Water, anyone?

 

 

 

Jan 13 2012

Another pet peeve: can’t kids just eat?

Yes, I know getting kids to eat their veggies can be challenging. 

Cornell researchers wondered this is because kids like different ways of presenting foods than adults.  They tested this idea in a study just published in Acta Pædiatrica.   

Contrary to the default assumption that parents and children share preferences for the ways in which food is presented on plates, we find that children have notably different preferences than adults. 

Most remarkably, we show that children tended to prefer seven different items and six different colours on their ideal plates, while adults tended to prefer three different colours and three different items….Given that adults often prepare plates of food for children to eat, these findings suggest new windows for encouraging diverse childhood nutrition.

I suppose this is the rationale behind the latest approach to getting kids to eat better diets: My Fruity Faces.  These are edible stickers that kids can stick on whatever fruits, vegetables and, presumably, any other food that happens to be handy.

 

The stickers are less interactive and creative than the old Mr. Potato Head toy, but kids can eat them.

And they ought to like eating them: Sugar is the first ingredient. 

Sugar is followed by Hydroxypropyl methylcellulose(Modified Cellulose), Water, Natural flavor, Modified corn starch, Glycerin, Polyglycerol esters of fatty acids, Citric acid, Red beet concentrate, Turmeric, Red cabbage extract, Caramel color, Sodium Bicarbonate.

Yum.

Will something like this reallyget kids to eat more fruits and vegetables?  Cornell researchers: get to work.

Dec 31 2011

Looking ahead: food politics in 2012

My monthly Food Matters (first Sunday) column in the San Francisco Chronicle takes out a crystal ball…

Q: What’s on the food politics agenda for 2012? Can we expect anything good to happen?

A: By “good,” I assume you mean actions that make our food system safer and healthier for consumers, farmers, farm workers and the planet.

Ordinarily, I am optimistic about such things. This year? Not so much. The crystal ball is cloudy, but seems to suggest:

Political leaders will avoid or postpone taking action on food issues that threaten corporate interests. Sometimes Congress acts in favor of public health, but 2012 is an election year. Expect calls for corporate freedom to take precedence over those for responsible regulations. Maybe next year.

Something will happen on the farm bill, but what? Last fall’s secret draft bill included at least some support for producing and marketing fruits and vegetables, and only minimal cuts to SNAP (food stamps). Once that process failed, Congress must now adopt that draft, start over from scratch or postpone the whole mess until after the election.

SNAP participation will increase, but so will pressure to cut benefits. With the economy depressed, wages low and unemployment high, demands on SNAP keep rising. In 2011, SNAP benefits cost $72 billion, by far the largest farm bill expenditure and a tempting target for budget cutters. While some advocates will be struggling to keep the program’s benefits intact, others will try to transform SNAP so it promotes purchases of more healthful foods. Both groups should expect strong opposition.

Childhood obesity will be the flash point for fights about limits on food marketing. The Lancet recently summarized the state of the science on successful obesity interventions: taxes on unhealthy foods and beverages, restrictions on marketing such items, traffic-light front-of-package food labels, and programs to discourage consumption of sugar-sweetened drinks and television viewing. Expect the food industry to continue to get Congress to block such measures, as it did with U.S. Department of Agriculture school nutrition standards (hence: pizza counts as a vegetable).

The Federal Trade Commission will postpone release of nutrition standards for marketing to children. Although Congress asked for such standards in the first place – and the standards are entirely voluntary – it just inserted a section in the appropriations bill requiring a cost-benefit analysis before the FTC can release them. Why does the food industry care about voluntary restrictions? Because they might work (see previous prediction).

The Food and Drug Administration will delay issuing front-of-package labeling guidelines as long as it can. The FDA asked the Institute of Medicine for advice about such labels. The institute recommended labels listing only calories, saturated and trans fat, sodium and sugars – all nutrients to avoid. Although the institute did not mention traffic-light labels, it did recommend check marks or stars, which come close. The food industry much prefers its own method, Facts Up Front, which emphasizes “good-for-you” nutrients. It is already using this system. Will the FDA try to turn the institute recommendations into regulations? Maybe later.

The FDA will (still) be playing catch-up on food safety. The FDA got through the 2011 appropriations process with an increase of about $50 million for its inspection needs. This is better than nothing but nowhere near what it needs to carry out its food safety mandates. The FDA currently inspects less than 2 percent of imported food shipments and 5 percent of domestic production facilities. The overwhelming nature of the task requires FDA to set priorities. Small producers think these priorities are misplaced. Is the FDA going after them because they are easier targets than industrial producers whose products have been responsible for some of the more deadly outbreaks? Time will tell.

On the bright side, the food movement will gather even more momentum. While the food industry digs in to fight public health regulations, the food movement will continue to attract support from those willing to promote a healthier and more sustainable food system. Watch for more young people going into farming (see Chronicle staff writer Amanda Gold’s Dec. 25 article) and more farmers’ markets, farm-to-school programs, school meal initiatives, and grassroots community efforts to implement food programs and legislate local reforms. There is plenty of hope for the future in local efforts to improve school meals, reduce childhood obesity, and make healthier food more available and affordable for all.

And on a personal note: In April, University of California Press will publish my co-authored book, “Why Calories Count: From Science to Politics.” I’m hoping it will inspire more thinking and action on how we can change our food system to one that is better for people and the planet.

Happy new year!

 

Dec 26 2011

Lobbying in action: PepsiCo vs. kids’ marketing guidelines

Lobbyists are supposed to report what they do and how much money they spend doing it, but this information is not easily available to the public.

CBS News reports that PepsiCo spent $750,000 to lobby government last quarter.  This comes to roughly $3 million annually, a drop in PepsiCo’s annual $30.6 billion sales in the U.S.—$57.8 billion worldwide.

What is Pepsi lobbying about?  Open Secrets publishes the filing information on its website.

PepsiCo lobbied the House, Senate, Executive Office of the President, FTC, FDA, and USDA, focusing on these issues, among others:

  • Childhood Obesity (generally, no specific legislation)
  • Food and beverage labeling (generally, no specific legislation)
  • Marketing and advertising issues in response to Interagency Working Group on Food Marketed to Children (IWG) (see previous posts)
  • Restrictions on use of supplemental nutrition assistance program (no specific legislation)
  • Implementation of S. 3307-healthy, Hunger-Free Kids Act of 2010
  • Biofuels policy generally

I’m especially interested in lobbying against the IWG guidelines.  Pepsi, of course, was not alone in opposing them.  As I noted in a previous post, the the Sunlight Foundation reported on food companies lobbying against them.

Media companies also opposed the IWG guidelines, as shown by Viacom’s annual filing with the Security and Exchange Commission, a document forwarded to me by Jeffrey Chester of the Center for Digital Democracy:

…some U.S. policymakers have sought limitations on food and beverage marketing in media popular with children and teens. In April 2011, the Interagency Working Group on Food Marketed to Children (the “IWG”)…requested comment on proposed nutritional restrictions for food and beverage marketing directed to children and teens aged 17 years and under.

Although the guidelines are nominally voluntary, if implemented by food and beverage marketers, they could have a negative impact on our Media Networks advertising revenues, particularly for our networks with programming targeted to children and teens.

Congress asked the FTC to set up the Interagency Working Group to propose guidelines on marketing foods to kids.  Did it really think food companies would accept such guidelines, voluntarily at that?

As I keep pointing out, food companies have to market to kids to sell products and grow sales every quarter.

If they don’t sell products to kids in the U.S., they will intensify efforts to sell products to kids in developing countries, thereby outsourcing childhood obesity.

Surely it’s time for mandatory rules about marketing junk foods to kids?  If not now, how about soon?

Dec 14 2011

Update on marketing to kids

I subscribe to The Lancet, and always enjoy reading its editor’s weekly Offline column.  In October, editor Richard Horton wrote about how  government obesity policy needs to be based firmly on scientific evidence.

And what is that evidence?

On this question, the evidence is utterly clear.  Thanks to the work of the best scientific minds in obesity research, the most reliable evidence shows that the government’s plan should include taxes on unhealthy foods and beverages, front-of-pack traffic-light nutrition labeling, reductions of junk food and drink advertising to children, and school-based programmes to reduce television viewing and sugar-sweetened beverage consumption (Lancet, 2011;378:1451).

If you care about public health evidence, that’s what it shows.  But doing these things goes against the business interests of food companies and they are doing everything they can to oppose such science-based measures.

In the U.S., the Sunlight Foundation has just released a report detailing the amounts of money food companies have spent on lobbying to block federal attempts to set nutritional standards for marketing foods to children (see previous posts).

Big companies such as Nestle, Kellogg, Viacom, McDonalds, General Mills, and Time Warner have indicated on official reports that they have lobbied on the controversial proposed guidelines; all together such companies have reported spending more than $37 million on lobbying this year.

The Sunlight report lists reported lobbying expenses (for example, Coca-Cola $4.7 million, General Mills $660,000).  It also points out that

…Over all public relations were handled by Anita Dunn, formerly communications director at the Obama White House, at the firm SKDKnickerbocker Consulting.

Anita Dunn is of special interest because of her previous position at the White House.  Now she’s working for the not-so-loyal opposition.  Marian Burros reported on this switch for Politico:

Dunn, who served as White House communications director, is a senior partner at SKDKnickerbocker Consulting, which is handling public relations for the food industry’s campaign. Switching sides isn’t uncommon in the incestuous world of Washington consulting and lobbying, and the food industry coalition seeking to scuttle the voluntary guidelines argues that they are actually enforceable regulations in disguise that could lead to billions in lost sales.

Dr. Horton’s comments in Lancet imply that the British government isn’t doing much better.

As for the European Union (EU),  Food Chemical News reported on December 8 that major food companies— McDonald’s, Burger King, Coca-Cola, Danone, Kellogg, Mars, Nestlé, PepsiCo, Procter & Gamble and Unilever, as well as the European Snacks Associations—have just pledged to promote only healthful products on their websites aimed at children under age 12.

By “healthful,” they mean products that meet “better-for-you” criteria.  Food Chemical News cites a study suggesting that European children now see 79% less advertising of really bad junk foods on kids’ TV than they did in 2005, and 29% less across all TV programs.

The study did not say whether sales of those products were down too. If not, this could explain the willingness of companies to extend the voluntary restriction to websites aimed at very young children.

All of this would be much simpler for parents if governments paid attention to the research.  If they did, they would:

  • Tax unhealthy foods and beverages
  • Require traffic-light front-of-pack labels
  • Stop junk food and drink advertising to children
  • Institute programs to reduce television viewing
  • Institute programs to reduce sugar-sweetened beverage consumption

Taken together, these might actually make some progress in reducing childhood obesity.

Dec 9 2011

EWG says kids’ cereals have too much sugar

The Environmental Working Group (EWG) is getting interested in childhood obesity.  It released a report on sugars in kids’ breakfast cereals.

The report shows—no surprise—that kids’ cereals are really cookies in disguise, typically 40% -50% sugars by weight.   Kellogg’s Honey Smacks topped the list at 55%.

Michele Simon’s analysis of the report notes that these levels don’t even meet Kellogg’s commitment to responsible marketing, a pledge to “apply science-based Kellogg Global Nutrient Criteria to all products currently marketed to children.”

I’ve been reading reports like this since the 1970s when Center for Science in the Public Interest published them at regular intervals.  Not much has changed.

Courtesy of Kellogg, I have a collection of copies of Froot Loop boxes dating back to the year in which this cereal was first introduced.  I thought it would be interesting to check the sugar content.

Froot Loops, Sugar content, grams per ounce

YEAR GRAMS SUGARS PER OUNCE LABEL
1963-71 Lists calories: range 110-114
1972-75 Lists carbohydrate, not sugars
1976-78 14 Lists sucrose and other sugars
1979-92 13
1993-95 14 Nutrition Facts: sugars
1996-2006 15
2007 13
2008-11 12

In 2005, Kellogg tried a version with 1/3 the sugar—10 grams—but it didn’t sell and quickly disappeared.

Companies are trying to reduce the sugars by a little, but this seems to be the best they can do.  It’s not enough.

As the EWG press release explains, some cereals are better than others.   It notes that I recommend:

  • Cereals with a short ingredient list (of additives other than vitamins and minerals).
  • Cereals high in fiber.
  • Cereals with little or no added sugars (added sugars are ingredients such as honey, molasses, fruit juice concentrate, brown sugar, corn sweetener, sucrose, lactose, glucose, high-fructose corn syrup and malt syrup).
  • Even better, try fresh fruit and homemade oatmeal.
Oct 19 2011

Consumer groups complain to FTC about PepsiCo’s digital marketing to kids

This morning, the Center for Digital Democracy announced that consumer groups have filed a complaint (and see the appendices) with the Federal Trade Commission against PepsiCo.

Why?  Because of the ways PepsiCo uses digital marketing techniques to push its products to children and adolescents.

These include:

  • Disguising marketing as video games, concerts, and other “immersive” experiences
  • Claiming to protect teen privacy while collecting a wide range of personal information
  • Using viral techniques that violate FTC guidelines

The report points to Pepsi’s Hotel 626 video game as a particularly egregious example.

Also this morning, Public Health Law & Policy released a comprehensive report on the kinds of digital marketing tactics that are now used routinely by fast food, snack food, and soft drink companies. The report identifies specific marketing campaigns from PepsiCo, McDonald’s, and others that exploit kids’ use of digital media.

I can’t wait to see what the FTC does with this.

In the meantime, here’s Michele Simon’s enlightening report on what it’s like to play Hotel 626.

And Lori Dorfman of the Berkeley Media Studies Group sends these case studies on digital marketing to kids: