Public Policy Issues in Food and Beverage Marketing to Children and Youth*
Public policies at the federal, state, and local levels are central to the promotion, protection, and enhancement of the diets and health of U.S. children and youth. Public policy and activities that shape dietary guidance, nutrition education, food labeling, regulation of food marketing, food services, and food production and distribution, are all important determinants of the nutritional environments of children and youth. This chapter begins with an overview of education and information-related policies, including dietary guidelines, nutrition education programs and campaigns, and food labeling to guide healthful choices for children, youth, and their families. It then reviews several of the policies related to the role of schools in children’s diets, and follows with the description of the experience to date with social marketing campaigns to improve health-related behaviors. The chapter devotes substantial attention to legal considerations in regulation of advertising and marketing, including the constitutional protection of commercial free speech in the United States. The chapter also examines other potential legislative actions that may create industry incentives or support agricultural subsidies to produce and market more healthful foods, as well as taxation to reduce the demand for less healthful foods. The chapter con-
cludes with a review of the international policy environment for policies relevant to food and beverage marketing to children and youth.
EDUCATION AND INFORMATION PROGRAMS AND POLICIES
Numerous education and information programs and policies are sponsored by government at every level and in many venues. At the federal level, these efforts are anchored in the principles set out in the Dietary Guidelines for Americans, previously introduced in Chapter 2. This section describes several nutrition education and promotion efforts offered through the U.S. Department of Agriculture (USDA), Department of Education, and the Department of Health and Human Services (DHHS). It also describes federal nutrition labeling policies designed to facilitate healthful food choices at the point of purchase.
Dietary Guidelines for Americans and MyPyramid
The policy touchstones for federal education and information programs on nutrition are the Dietary Guidelines for Americans and its graphic representation, MyPyramid. Jointly developed by the DHHS and USDA, the Guidelines were designed to move federal nutrition policy to a more explicit focus on chronic disease prevention. They are now legislatively mandated, revised every 5 years, and draw from the recommendations of a nonfederal Dietary Guidelines Advisory Committee, constituted to review the most current scientific evidence and medical knowledge. The sixth edition of the Dietary Guidelines for Americans was released in 2005 and provide specific recommendations for physical activity, consumption of food groups, fats, carbohydrates, sodium and potassium, alcoholic beverages, and food safety (DHHS and USDA, 2005). Described in Chapter 2, the Dietary Guidelines provide the basis for the educational components of all 15 federal nutrition programs administered by the USDA. The USDA introduced the Food Guide Pyramid in 1992, in cooperation with the DHHS, as a graphic representation of selected Dietary Guidelines to help consumers better understand and select a balanced diet that promoted health and prevented chronic diseases. In 2005, the USDA took an additional step to personalize the guidance through an interactive food guidance system, MyPyramid, released to replace the existing Food Guide Pyramid (USDA, 2005f). MyPyramid offers recommendations tailored to the age and needs of the individual. This initiative includes an online educational tool to obtain information on an individual’s diet quality, related nutrition messages, and links to nutrition information (USDA, 2005f). A child-friendly version of MyPyramid was released to reach children ages 6–11 years with targeted messages about the importance of healthful eating
Federal Nutrition Education and Promotion Programs
A number of federal programs include important efforts to educate consumers of various ages about improving nutritional practices. Many target children, youth, or their care providers about the importance of a nutritionally balanced diet and regular physical activity. They can be found in agencies ranging from the DHHS and USDA, to the Departments of Education, Defense, and Interior. Some examples are described here.
The federal government’s largest nutrition education work is sponsored by the USDA, which embeds education throughout its various food programs, and overall, devoted approximately $715 million to nutrition education and promotion in FY2005 (personal communication, Sid Clemens, Office of Budget and Program Analysis, USDA, November 1, 2005). The USDA Center for Nutrition Policy and Promotion is the focal point for leadership within the USDA on nutrition policy and dietary guidance in programs throughout the agency. The USDA administers 15 nutrition assistance programs that totaled $46 billion in 2004, including the Food Stamp Program (FSP), the Special Supplemental Program for Women, Infants, and Children (WIC), and the Child Nutrition Programs (USDA, 2005i). All have nutrition education components. For example, the WIC program, serving 8 million participants, provides both individualized and group nutrition education. Many state WIC agencies include nutrition education classes, fact sheets, newsletters, individual counseling guides, and lesson plans for schools (IOM, 2005c).
The FSP also offers a nutrition education component through selected states, although it operates on a smaller scale and reaches fewer low-income audiences than the WIC program. The activities of the Food Stamp Nutrition Education Program vary by state and provide practical nutrition information to low-income families and children. Some of these programs are developed and implemented in cooperative relationships between local FSP and state land-grant universities or nonprofit organizations (USDA, 2005d). The USDA Expanded Food and Nutrition Education Program (EFNEP) works collaboratively with county services and other local agencies to reach low-income families, children, and youth (Cooperative State Research, Education, and Extension Service, 2005). Additionally, the USDA Food and Nutrition Service has developed the Eat Smart, Play Hard™ Campaign that provides practical suggestions based on the Dietary Guidelines for Americans to motivate children and their care providers to eat healthful foods and be physically active every day (USDA, 2005a).
There are several federal partnerships that promote nutrition and healthful diets. In 2004, the USDA Food and Nutrition Service partnered with the Department of Education to launch the HealthierUS School Challenge that encourages schools and parents to promote healthful lifestyles for children. The school challenge is an extension of the DHHS-coordinated Steps to a HealthierUS initiative, and is designed to build upon and expand the USDA Team Nutrition program that provides schools with nutrition education materials for children and families; technical assistance for school food service directors, managers, and staff; and materials to build community-based support for healthful eating and physical activity. The initiative also enhances the USDA’s effort to improve the nutritional quality of school food service through the School Meals Initiative that establishes nutritional requirements for federally reimbursed school meals (USDA, 2004a).
The national Steps to a HealthierUS initiative focuses on lowering the incidence of obesity and type 2 diabetes in disproportionately affected at-risk populations, especially African Americans, Hispanics/Latinos, American Indians, Alaska Natives, Asian Americans, and Pacific Islanders (DHHS, 2005e). As a component of this initiative, the DHHS partnered with the Ad Council to create Small Step (DHHS, 2005c) and Small Step Kids! (DHHS, 2005d), which target parents, teens, and children and include public service announcements (PSAs), a public relations campaign, a health care provider’s toolkit, and consumer materials. The child-targeted component includes games and activities, television advertisements, and links to other materials.
The DHHS Centers for Disease Control and Prevention (CDC), through its Division of Nutrition and Physical Activity (DNPA), currently sponsors the national 5 a Day for Better Health program (previously administered by the National Cancer Institute [NCI]) (DHHS, NIH, NCI, 2005), which encourages consumers to eat a variety of fruits and vegetables every day (CDC, 2005a). The DNPA also sponsors the national Powerful Bones, Powerful Girls™ Campaign to promote awareness of bone health (CDC, 2005e), and the national Youth Media Campaign, VERB™, a social marketing effort to encourage tweens, ages 9–13 years, to be physically active every day (CDC, 2005g). In 2005, CDC created a National Center for Health Marketing to provide national leadership in health marketing science and its application for public health improvement (CDC, 2005b).
Also in the DHHS, the National Institute of Child Health and Human Development (NICHD) sponsors the Milk Matters Calcium Education Campaign targeted to tweens and teens ages 11–15 years to promote the daily consumption of low-fat or fat-free milk along with calcium-rich foods (NIH, 2005a). Other institutes of the National Institutes of Health (NIH) also partner with national organizations and local communities in the national education initiative, We Can! (Ways to Enhance Children’s Activity
& Nutrition), which is a collaboration among four institutes: the National Heart, Lung, Blood Institute; the National Institute of Diabetes and Digestive and Kidney Diseases; the NICHD; and the NCI. We Can! is designed to prevent obesity in children and tweens, ages 8–13 years, by providing resources and community-based programs to parents, caregivers, children, and youth that encourage healthful dietary choices, increasing physical activity, and reducing sedentary behaviors (NIH, 2005b).
Other nutrition-related education programs at the DHHS include work of the Surgeon General and of the Head Start program. The Surgeon General has launched an initiative called, Children and Healthy Choices—50 Schools in 50 States, taking him to at least one school in each of the 50 states, the District of Columbia, and Puerto Rico to discuss the benefits of healthy choices with school-aged students, including the importance of a nutritious diet and regular physical activity (DHHS, 2005b). In addition, through the Administration for Children and Families, the Head Start program grantees deliver a range of services related to comprehensive nutrition and nutrition education that foster healthy development and school readiness in low-income preschool children, ages 3–5 years, across the nation (DHHS, 2005a).
An important means of conveying nutrition information—and of educating about nutrition—is the food label itself. Both the USDA and DHHS have responsibilities for food labeling, but most of the food supply is overseen by the DHHS’s Food and Drug Administration (FDA). Information on the food label is intended to enable consumers to compare products and make informed choices about foods and beverages that best meet their nutritional needs. Standards for the implementation of the labeling guidelines were established by the Nutrition Labeling and Education Act of 1990 (NLEA) (P.L. 101–535, 1990), which mandated that labeling information should be communicated so that consumers could readily observe and comprehend such information and understand its relative significance in the context of a total daily diet (FDA, 1993). The NLEA requires nutritional information to be displayed on nearly all packaged foods as to serving size, the number of servings per container, the total number of calories derived from any source and derived from fat, and the amount of total fat, saturated fat, cholesterol, sodium, total carbohydrates, complex carbohydrates, sugars, dietary fiber, total protein, vitamins A, C, E, and iron per serving (21 U.S.C. 343(q)(1)(A)-(E), 2004).
Full serve and quick serve restaurants are currently exempt from the general nutritional labeling standards and requirements of the NLEA (FDA, 1993; 21 U.S.C 343 (q)(5)(A)(i), 2004). However, they are required to meet
some nutritional labeling requirements if they identify an item on their menu as “healthy” (Food Labeling Rule, 21 C.F.R. § 101.65, 2004).
The Nutrition Facts panel was developed to provide a set of consistently formatted information items that are displayed on food product labels to help consumers better understand how various foods could be integrated into a healthful diet (IOM, 2005a). Additionally, the NLEA mandates the FDA to enforce food manufacturers’ compliance with established guidelines for nutrient and health claims on a product package indicating that a relationship exists between a food and a protection from a disease or health-related condition (IOM, 2003). The FDA’s Calories Count campaign is an example of an initiative to encourage better industry use of the food label for nutrition education to consumers. In addition to the Calories Count campaign, the FDA is proposing to target the prominence of calories on the product label, address the issue of serving size for products that can be reasonably consumed at one time, update the reference amounts to reflect those that are customarily consumed, and examine approaches for recommending smaller portion sizes. These changes derive from extensive stakeholder consultation and consumer research that are intended to help consumers to purchase foods that may be integrated into a healthful diet and to highlight the importance of total calorie intake as a prime factor of concern (FDA, 2005c).
Research conducted by the FDA and the Food Marketing Institute has shown that about half of U.S. adult consumers use food labels when purchasing a food item for the first time (FMI, 1993, 2001), in particular to assess whether a product is high or low in a nutrient, especially fat, and to determine total calories (IOM, 2003). On the other hand, there is little evidence that the information on food labels, at least as currently structured, has a significant impact overall on eating or food purchasing behaviors (Wansink and Huckabee, 2005; Chapter 3). There are ample prospects for enhancing the utility of the label information as a guide to healthier food choices, including choices made by and for children and youth. In its report on preventing childhood obesity, the Institute of Medicine (IOM) recommended that the FDA and other groups conduct consumer research on the use of the nutrition label, on restaurant menu labeling, and on how to revise the Nutrition Facts panel to better design and display the total calorie content for products such as vending machine items, single-serve snack foods, and ready-to-eat (RTE) foods that are typically consumed at one eating occasion (FDA, 2005a,b; IOM, 2005a).
The importance of integrating and improving strategies for using the food label as an educational tool is underscored by the recent food company initiatives described in Chapter 4 to use proprietary logos or icons that communicate the nutritional qualities of their branded products. While representing an important step to draw attention to more nutritious prod-
ucts, the array of categories, icons, and other graphics, as well as the different standards employed by these companies may introduce some confusion, particularly for young consumers, thereby raising the need for developing and regulating standard and consistent approaches. The FDA has not yet fully explored its potential role for providing leadership and expertise to food companies in order to develop and enforce an industrywide rating system and graphic representation on food labels that is appealing to children and youth to convey the nutritional quality of foods and beverages.
Finding: A number of positive steps have been taken by the Food and Drug Administration to improve food and beverage labeling as a means of conveying helpful information to enable healthier choices, including exploration of ways to expand the provision of such information on menus and packaging in quick serve and full serve family restaurants. Still, the reach and effectiveness of such efforts—by FDA, industry, and the two together—are far short of what they could or should be to provide children, youth, and their parents with the information they need, using consistent standards and graphics that are easily understood and engaging.
NUTRITION IN SCHOOLS
Schools present an important means of reaching the nation’s children and youth with programs and approaches for healthier diets. School-based interventions seek to provide the more than 50 million elementary and secondary students in the United States with nutrition education, healthy food services, food environments that support healthy choices, and family involvement for healthier lives. The CDC’s Division of Adolescent and School Health collaborates with the Department of Education, the USDA, and other federal and state agencies to provide leadership on school health and environments, including nutrition education (with the CDC DNPA) and the nutrition environment of schools.
Nutrition Education in Schools
A beginning point for addressing nutrition in schools is the way it is engaged in the curriculum. A comprehensive survey conducted by the Department of Education among 1,000 school principals in a nationally representative sample of U.S. public elementary, secondary, and high schools showed that nearly all public schools provide nutrition education in the curriculum, primarily concentrated in the health curriculum (84 percent), science classes (72 percent), and school health programs (68 percent) (NCES, 1996). The topics covered in more than 90 percent of all schools surveyed included the relationship between diet and health, identi-
fying and selecting healthful foods, nutrients and their food sources, the Dietary Guidelines for Americans, and the Food Guide Pyramid. The survey found that 97 percent of schools reported receiving nutrition materials for lesson plans from at least one source outside of the school, most often from a professional or trade association (87 percent) and the food industry (86 percent). Of the materials from sources outside the school, schools reported the highest classroom usage for those received from the food industry or commodity groups, professional or trade associations, the USDA, and state education agencies. The survey also found that the school curriculum focused primarily on increasing students’ knowledge about nutrition, with less emphasis on influencing students’ motivation, attitudes, and eating behaviors (NCES, 1996).
Although this survey showed that school-based nutrition education has been an active area, the quality of the nutritional messages received by students had not been evaluated (NCES, 1996). One evaluation found that behavior change in students is more likely if a comprehensive approach to nutrition education provides messages by multiple persons through a variety of communication channels, including the classroom, school cafeteria, home, and community (USDA, 2004b). Building on this insight, the Child Nutrition and WIC Reauthorization Act of 2004 (P.L. 108–265), requires school districts participating in the National School Lunch Program (NSLP) or School Breakfast Program (SBP) to establish a local school wellness policy by 2006 (USDA, 2004c,d). USDA’s Team Nutrition has developed implementation guidance that emphasizes overall goals designed to promote student wellness for nutrition education, physical activity, and other school-based activities; nutrition guidelines for all foods available on every school campus during the school day; guidelines for reimbursable school meals that are no less restrictive than regulations and guidance issued by the USDA Secretary under the Child Nutrition Act; designation of a responsible person to ensure that school meals meet the local school wellness policy criteria; and broadly involving key stakeholders in the development of the school wellness policy (USDA, 2004c).
Media Literacy in Schools
Education in media literacy is another type of school-based educational initiative with potential to help improve the diets of children and youth. Media literacy refers to the ability of children and youth to develop an informed and critical understanding of the nature, technique, and impact of what they see, hear, and read in print, broadcast, and electronic media including books, newspapers, magazines, television, radio, movies, music, advertising, video games, the Internet, and emerging technologies. The goals of media literacy education are to (1) assist students to be critical media
consumers, (2) enhance their media experiences, (3) reduce the potential adverse effects of media, and (4) promote potential benefits of media use (Brown, 2001; Buckingham, 2005; KFF, 2003). One of the challenges to developing a program of media literacy education lies in its timing across the kindergarten through 12 spectrum, as a result of the fact that most children ages 8 years and younger do not effectively comprehend the persuasive intent of marketing messages, and most children ages 4 years and younger cannot consistently discern between television advertising and informational content—hence training in the use of those powers of discernment requires that students have reached a certain developmental stage (Chapter 5).
The first large-scale experimental study measuring the acquisition of media literacy skills in the United States found that incorporating an analysis of media messages into the school curriculum could enhance the development of media literacy skills (Hobbs and Frost, 2003; KFF, 2003). On the other hand, since no national media literacy campaign has yet been implemented through a school-wide curriculum in the United States, systematic evaluations are not currently available to assess the effectiveness of a broad program of media literacy education, including whether media literacy skills learned in the classroom might transfer to media exposure outside the school setting. Additionally, there is a need to incorporate skills that move beyond the critical evaluation of television programming into emerging forms of media such as the Internet and mobile marketing; viral marketing; product placement across print, broadcast, electronic media and music; and marketing venues such as schools (Chapter 4).
School Food Services
Ensuring that school food services, including what is offered in school cafeterias, reflect sound nutrition principles, is key. These services are designed and implemented at the school district level, but many fall within the purview of the federal Child Nutrition Programs. The Child Nutrition Programs, which include the NSLP, SBP, Child and Adult Care Food Program (CACFP), and the Summer Food Programs, target low-income children enrolled in public and nonprofit private schools, child-care institutions, and summer recreation programs (Chapter 3). The NSLP is intended to provide nutritionally balanced, reduced-cost or free meals to nearly 29 million children enrolled in public and nonprivate schools every school day (USDA, 2005b). Nearly half (49 percent) of the school lunches served through the NSLP are provided free to students and another 10 percent are provided at a reduced price (USDA, 2005i). The program also provides reimbursements for snacks given to children in after-school educational and enrichment programs.
Participating school districts, independent schools, and institutions receive cash subsidies and donated commodities from the USDA in exchange for serving reduced-cost or free lunches to eligible children that adhere to the guidelines of the NSLP (7 C.F.R. § 210.10, 2005): no more than 30 percent of calories from fat, no more than 10 percent from saturated fat. Federal regulations also require that school lunches provide one-third of the Recommended Daily Allowance (RDA) for protein, calcium, iron, vitamin A, vitamin C, and calories. While the lunches at participating schools must satisfy these federal requirements, local school authorities have discretion to choose what specific foods are served and how they are prepared (USDA, 2005b). A U.S. General Accountability Office report found that dietary fat accounted for 34 percent of calories in the lunches served in the NSLP during the 1998–1999 school year. Although this represents a 4 percent decline from 1991–1992, it still exceeds the USDA-mandated 30 percent (GAO, 2003). The SBP has similar nutritional requirements as the NSLP. In addition to the limits on calories that must be obtained from fat, the SBP must provide children with one-fourth of the RDA for protein, calcium, iron, vitamin A, vitamin C, and calories (USDA, 2005c).
The CACFP is a federal nutrition program providing meals and snacks to low-income children in child-care centers, Head Start programs, family child-care homes, and after-school programs. Child- and adult-care providers who participate in CACFP are reimbursed at fixed rates for each meal and snack served. The USDA has established minimum requirements for the meals and snacks offered by participating child-care providers, but they are not required to meet specific nutrient-based standards such as those required for the NSLP and SBP (USDA, 2002a; Chapter 3).
USDA has also developed the Child Nutrition Labeling Program (CNLP) which is a voluntary technical assistance program designed to assist schools and institutions participating in the NSLP, SBP, and the CACFP by determining the contribution a commercial product makes toward the meal pattern requirements (USDA, 2005g). The CNLP requires an evaluation of product formulation of those products sold and used in these programs, and in order to carry the Child Nutrition label, it must be produced under federal inspection by the USDA (USDA, 2005g,h).
Promoting Fruits and Vegetables in Schools
Increasing the availability of fruits and vegetables to children in schools has been a priority and an important means of improving the quality of foods served in the federal nutrition assistance programs. Several pilot programs have been developed at the school, district, state, and federal level to explore strategies to increase fruit and vegetable consumption among students in schools. The 2002 Farm Bill provided $6 million for the Fruit
and Vegetable Pilot Program to distribute fresh and dried fruits and fresh vegetables to elementary and secondary school children in four states and one Indian reservation (Branaman, 2003; ERS, 2002). One hundred schools in four states (e.g., Indiana, Iowa, Michigan, and Ohio) and seven schools in New Mexico’s Zuni Indian Tribal Organization participated in the pilot during the 2002–2003 school year (Buzby et al., 2003). The participating schools could choose when and how to distribute the fresh produce to students, but the program requested that the fruits and vegetables be made available to students outside the regular school meal periods. Quantitative outcome data were not collected, but a qualitative process evaluation suggested satisfaction in many schools and food service staff (Buzby et al., 2003). The recent Child Nutrition and WIC Reauthorization Act expanded the program to four more states and two additional Indian reservations (Committee on Education and the Workforce, 2004; Chapter 3).
The Department of Defense’s Fresh Produce Program has been working with schools in several states to provide fresh fruits and vegetables for the school meal programs. Schools have also begun to incorporate produce from school gardens (Morris and Zidenberg-Cherr, 2002), school salad bars (USDA, 2002b), and farmers’ markets (Azuma and Fisher, 2001) into the school meals programs in an effort to increase student participation and specifically to increase their fruit and vegetable consumption. Evaluations of these programs are essential to assess the effects of these changes on students’ dietary behaviors.
Competitive Foods in Schools
School food services, and special fruit and vegetable programs are not the only food and beverage products available to students. Recent attention has been drawn to other sources of “competitive” foods that are often high calorie and low nutrient and viewed as potentially displacing more healthful foods. Competitive foods include items sold through snack shops, student stores, vending machines, a la carte lines, and school fundraisers.
The sale of competitive foods in schools is often used to support academic or other types of programs. Public schools that are under financial pressure are more likely to make competitive foods available to their students through exclusive “pouring rights” contracts and snack food sales (Anderson and Butcher, 2005). Competitive foods are widely available in schools and generate substantial revenues, especially for middle and high schools throughout the United States (GAO, 2005). In 2003–2004, an estimated 30 percent of high schools generating the most revenue from competitive foods raised more than $125,000 per school (GAO, 2005; Chapter 3). An analysis of a sample of schools in 27 states and 11 large urban areas found that the 80 to 90 percent of secondary schools allowed
students to purchase snack foods or beverages from vending machines, snack bars, cafeterias, or school stores (CDC, 2005c).
There are presently no comprehensive federal competitive foods standards to guide the type of products that are available and marketed in U.S. schools and other venues (e.g., child-care settings), and in the FY2005 Consolidated Appropriations, Congress directed the Institute of Medicine to conduct a study that is currently underway to develop comprehensive recommendations for appropriate nutritional standards for competitive foods (Hartwig, 2004; IOM, 2005b). Some foods have been designated foods of minimal nutritional value (FMNV) that are precluded from being sold in cafeterias or food service areas during school meal times. Under the competitive foods regulations, any non-FMNV sold outside of the NSLP may be sold anywhere on the school grounds at any time, although individual local-, district-, and state-level governments can establish their own local policies for competitive foods (USDA, 2002c). Because most competitive foods tend to be lower in nutritional value and higher in calories, fat, salt, and added sugars such as carbonated soft drinks, salty snacks, and candy (GAO, 2005), they are increasingly facing closer scrutiny at the state and local levels.
A variety of legislative initiatives pertaining to the availability, marketing, and sales of foods and beverages in schools have been enacted or proposed at the state, district, and local levels. Examples are numerous. Three large school districts in California (e.g., Berkeley, Oakland, and Los Angeles) have passed statutes for creating nutritional standards. The Los Angeles Unified School District enacted a comprehensive act mandating nonfood fundraising activities, prohibiting the sale of FMNV in vending machines after the end of the school day, and eliminating branded fast food product contracts (Vallianatos, 2005). Statewide legislation was passed in California that will enact several restrictions to raise nutritional standards for competitive foods sold in all California schools by 2007 and ban the sale of carbonated soft drinks on all California school campuses by 2009 (Gledhill, 2005).
Seattle Public Schools in Washington State have created guidelines for competitive food portion sizes and required that all beverages except milk be priced higher than water for the same serving size (Vallianatos, 2005). Other school districts have also enacted statutes calling for the prohibition of candy sales during the school day (Olympia, WA) and prohibiting certain foods during school hours and for fundraising (New York City Department of Education) (Vallianatos, 2005). The Flagstaff Unified School District in Arizona improved school meals in elementary and secondary schools by adding more fruit, vegetables, and salad bars (CSPI, 2003). In the Shrewsbury School District in Massachusetts, high schools now close their snack bars which sell candy and snacks of minimal nutritional value
during the lunch periods (CSPI, 2005). More than half of the 10 largest school districts in the United States have policies that are more restrictive toward competitive foods in schools than federal and state regulations (GAO, 2004).
In 2003, only two states (e.g., Arkansas and California) enacted laws regarding vending machines in schools, the following year four additional states (e.g., Colorado, Louisiana, Tennessee, and Washington) followed with their own legislation (NCSL, 2005). As of mid-2005, 19 states had limited the availability of competitive foods beyond federal requirements, 11 states had nutritional standards for competitive foods in schools, and 6 states (e.g., Arkansas, Kentucky, South Carolina, South Dakota, Tennessee, and Texas) had established nutritional standards for school lunches, breakfasts, and snacks that are stricter than the USDA requirements (TFAH, 2005). Most include criteria for nutritional standards for foods and beverages sold on school grounds before, during, or after school hours, and regulations for vending machine sales, competitive foods sales, fundraising food sales, and availability of foods and beverages during school events or activities. Most also restrict the availability of competitive foods by either limiting their access during school meal periods, the entire day, or certain times. Examples of specific provisions include banning carbonated soft drinks from elementary or middle schools; requiring elementary schools to only serve food and beverages that meet certain nutrition standards; requiring middle schools to turn off vending machines not meeting nutritional standards until after the lunch period is over; banning the sales of FMNV in schools; and banning the sale of all competitive foods in elementary schools and limiting them in secondary schools (CSPI, 2003; TFAH, 2005).
In addition to statutes already passed, legislation is pending in other states that would address certain of these provisions, as well as others, including those such as setting standards for portion sizes of foods sold in schools; requiring healthy choices at all school activities; eliminating fried foods from cafeterias; requiring nutritional standards for foods sold at fundraising events; requiring school cafeterias to serve more fresh fruits and vegetables; and financially penalizing schools for each meal lost to competitive food sales.
The prospects for such legislation are uncertain, but the proposals reflect growing public sentiment for action. A Wall Street Journal Online and Harris Interactive (2005) poll found that 84 percent of respondents favored stricter public school regulation of less healthful foods and beverages. Many local school districts seem to prefer to develop their own policies, in advance of state or federal initiatives (RWJF, 2003), encouraged in part, not only by the public concern, but by findings from some sites that many schools have been able to implement healthful food and beverage policies without losing revenue (CSPI, 2005). Traditional competitive foods
have been replaced with more healthful and low-calorie choices including water, low-fat milk, 100 percent fruit juices, soy drinks, cereal bars, and yogurt products (GAO, 2004; NCSL, 2005).
In an effort to educate and guide parents, school administrators, and legislators through the policy change and implementation process, the USDA has developed the Changing the Scene—Improving the School Nutrition Environment tool kit that seeks to help decision makers take a broad approach, addressing the entire school nutrition environment from a commitment to nutrition and physical activity, pleasant eating experiences, quality school meals, other healthful food options, nutrition education, and marketing the issue to the public (USDA, 2000). Other nonprofit groups have also developed resource materials for school districts and states to assist in the development of child nutrition legislation (CSPI, 2004).
Finding: National standards do not exist for the use or marketing of competitive foods and beverages in school settings or after-school venues such as child-care settings. Cooperative initiatives by the U.S. Department of Agriculture and the Department of Education has been limited in shaping policies and approaches related to healthier food and beverage promotion in schools.
One charge to the committee was assessing the lessons learned from various social marketing efforts that might be applied in the adoption of a social marketing strategy to improve the nutritional status of children and youth. Public health practitioners have used social marketing programs to influence a range of consumer behaviors such as reducing fat intake, increasing fruit and vegetable consumption, increasing physical activity, and promoting breastfeeding (Grier and Bryant, 2005; Ngo, 1993). To assist in this work, the committee commissioned a review of the application of the social marketing approach.
Social marketing applies commercial marketing concepts and techniques—exchange theory, audience segmentation, consumer orientation, competition, and an integrated marketing mix—to promote voluntary behavior change in specific groups or target audiences based on their sociodemographic, behavioral, and psychological characteristics (Grier and Bryant, 2005; Lefebvre, 1992; Lefebvre et al., 1995). The basic elements that influence a commercial marketing strategy include defining the target market, determining the marketing mix to meet the needs of the target
market, and assessing the environmental factors that influence the marketing mix and the target market (Boone and Kurtz, 1998; Chapter 4). Social marketing engages a similar approach.
Media can be a key element to increase awareness and motivation in a social mobility effort (Contento et al., 1995), and PSAs offer a good example of the media component of social marketing. The concept of PSAs as a form of advertising was first introduced by The Advertising Council, the nonprofit arm of the advertising industry. The Advertising Council has developed a specific set of criteria for PSAs that has been used in social marketing promotional activities (Ad Council, 2005) including sponsorship by nonprofit organizations or government agencies; noncommercial, nonpartisan, and nondenominational; of national importance; and aired using donated advertising time and space.
But social marketing is more than a communication activity. Effective social marketing programs utilize multiple reinforcing communication channels along with public policy and environmental changes to influence consumer behaviors (Andreasen, 1995). The combined strategies used in social marketing programs include mass media campaigns, school-based interventions, community-based programs, interpersonal communications, and public policy. Such programs encompass a variety of activities including PSAs, posters, pamphlets, promotions, and legislation (Lefebvre et al.,1995).
The notion of “exchange” is important in social marketing, as it is in any marketing effort that seeks to offer a behavior or choice for something that offers more value. Social marketers recognize that consumers have tangible and intangible costs associated with changing behaviors, such as trade-offs with time and inconvenience, and understand that all individuals involved in an exchange must receive valued benefits in return for behavioral changes. Thus, an effective social marketing program identifies the motives or drivers of behavior, structures these motives as part of the benefits offered, and develops choices for consumers that provide a comparative advantage (Andreason, 2002).
Just as commercial marketers distinguish target audiences based on different features such as age and race/ethnicity, social marketing differentiates populations into subgroups, segments, or target audiences of individuals who share lifestyle orientations, desires, behaviors, and values that make them likely to respond similarly to public health interventions. Social marketers also distinguish target audiences based on current behaviors (e.g., dietary, physical activity, sedentary, smoking habits), future intentions, readiness to change, product or brand loyalty, and personal characteristics (Grier and Bryant, 2005).
Commercial marketers regard the competition as products and companies that strive to satisfy similar desires and needs among consumers in the marketplace (Chapter 4). Social marketers view competition as the behav-
ioral options that compete with public health recommendations, messages, and services. A commercial marketing framework explores how the benefits of a product compare with the product of other companies; whereas a social marketing framework offers a trade-off that characterizes advantage in terms of better health, wellness, productivity, and psychological outlook (Grier and Bryant, 2005).
Marketing mix is another central concept used by social marketers that is adapted from commercial marketing practices. The four basic components of marketing—product, place, price, and promotion—are also central to the planning, implementation, and evaluation of a social marketing program. In a social marketing approach, the product is the array of benefits associated with the desired behavior for a target audience; price represents the cost or sacrifice exchanged for the promised benefit that balances the perceived or actual benefits to a consumer; place refers to the distribution of products and the location of sales and services where the target audience either performs the behavior or accesses programs or services; and promotion—often the most visible component of marketing—refers to the means of communicating and reinforcing messages (Grier and Bryant, 2005; Wong et al., 2004).
Commercial marketers devote considerable resources to conduct marketing research, as do social marketers. Conducting formative research is essential for a social marketing program to gain an accurate understanding of a target audience’s desires, behaviors, values, and lifestyles. Of special interest are the perceptions of the products, costs, benefits, and other factors relevant to changing behaviors and maintaining those changes. Additionally, a sustained commitment to the ongoing monitoring and evaluation of a social marketing program is essential at the beginning of the planning process to allow for modifications and refinements over the course of the program (Grier and Bryant, 2005). Part of the research includes assessment of the broader environment. In particular, attention to the policy context within which a social marketing program functions is a critical component that may influence the success of a social marketing program (Dorfman et al., 2005; Kraak and Pelletier, 1998).
Social Marketing Programs That Promote Physical Activity and Nutrition
Several nationwide social marketing programs seek to promote physical activity and nutrition. One such effort, the 5 a Day for Better Health program, was begun in the late 1980s by the NCI to promote the consumption of at least five servings of fruits and vegetables daily. This program was adopted as the 5 a Day for Better Health Campaign in California and
expanded nationally as a large-scale partnership between NCI and the Produce for Better Health Foundation (PBH). Partners have included the produce industry, trade organizations, supermarkets and foodservice outlets, voluntary and nonprofit organizations, all 50 state health departments and other government agencies including the USDA and CDC (PBH, 2005a). An evaluation of the various stages of the California 5 a Day program found incremental increases in the reported number of daily services of fruits and vegetables, which could also be attributed to secular trends (Foerster et al., 1995), demographic shifts (Stables et al., 2002), or other factors (Keihner et al., 2005). On the other hand, program advocates emphasize that the resources invested in the national and state 5 a Day for Better Health Campaign (e.g., approximately $9.55 million in 2004 on communications for both the national and California programs) are far smaller than needed to counter the marketing expenditures promoting high-calorie and low-nutrient foods and beverages (CPEHN and Consumers Union, 2005; Chapter 4).
As an active partner of the 5 a Day for Better Health campaign, the PBH also has developed a broader national action plan that proposes an integrated framework built on the 5 a Day concept to use marketing, public health, and communication strategies at national, state, and local levels, as well as public–private partnerships, to encourage children and adult consumers to access, prepare, and consume fruits and vegetables to support health (PBH, 2005b). Anticipated PBH public–private partnerships include vendors, produce suppliers, and food retailers that have developed educational materials and programs for children and youth; food service providers, full serve and quick serve restaurants; and children’s television programming (PBH, 2005b).
Social marketing programs have also been used to encourage consumers to reduce dietary fat intake. In the late 1980s, the nationwide social marketing program, Project LEAN (Low-Fat Eating for American Now), was designed by the Henry J. Kaiser Family Foundation to encourage consumers to reduce their dietary fat consumption to 30 percent of total calories. The program used PSAs, publicity, and point-of-purchase programs in restaurants, supermarkets, and school and worksite cafeterias to increase the availability and accessibility of low-fat foods, promote the awareness of total fat and calorie intake, and foster collaboration between national organizations (Samuels, 1993). It was the first national nutrition social marketing effort undertaken by an organization outside the government, but was not able to marshal large-scale support or implement the advertising concepts developed for the campaign, and could not demonstrate sustained changes in dietary habits.
More recently, the CDC’s youth media campaign, VERB™—It’s What
You Do, was launched nationally in 2002 as a 5-year, multiethnic social marketing campaign to increase and maintain physical activity among 21 million U.S. tweens ages 9–13 years (CDC, 2005g; Wong et al., 2004). Parents and other intermediaries that influence tweens (e.g., teachers, youth program leaders) have been secondary target audiences of the VERB™ campaign. An initial literature review and formative research was conducted on the target group to inform the program design. The research showed that tweens would respond positively to messages that promoted moderate physical activity in a socially inclusive environment and that emphasized self-efficacy, self-esteem, and belonging to their peer group (Potter et al., 2004).
VERB™ is an example of behavioral branding (e.g., brands that encourage a behavior or lifestyle), similar to the American Legacy Foundation’s truth® campaign (Evans et al., 2005b). The relationship between a brand and a consumer can be strong and long-lasting, with brands serving as symbolic instruments that allow groups of individuals to project a specific self-image (Evans et al., 2005b; Keller, 1998; Chapter 4). The developers of the VERB™ campaign partnered with advertising agencies experienced in youth marketing to create a recognizable brand awareness that encouraged children to associate VERB™ with physical activity. The primary goal during the first year of promoting the campaign was brand awareness, and all forms of media (e.g., print, broadcast and cable, electronic) were used to reach tweens of various racial/ethnic groups (Wong et al., 2004).
VERB™ expanded its promotional activities to enhance its reach. In 2005, through this campaign, the CDC launched a marketing strategy to connect tweens with places and events in their local areas where they can engage in various physical activities during the summer (CDC, 2005f). The campaign features television spots and celebrity promotions for the campaign website where tweens can participate in online games, monthly contests, and athlete trivia. The VERB™ campaign also uses the newer mobile marketing strategies (Chapter 4) to reach tweens ages 13 years and older to encourage them to sign-up to receive text messages about activity tours sponsored by the campaign near their cities.
Evaluation of the VERB™ campaign is still in progress, although preliminary tracking suggests positive results in protecting against declining activity levels. Those who saw the VERB™ campaign messages had a higher level of awareness and maintained the same levels of physical activity in 2003 that they had in 2002. Attitudes and behaviors toward physical activity changed modestly over the period of the first-year evaluation, with more positive attitude changes than behavioral improvement (Huhman et al., 2005).
Social Marketing Programs to Reduce Youth Tobacco and Drug Use
Social marketing programs have also been used by the federal government and private groups over the past two decades to influence youth behaviors to reduce youth tobacco, underage alcohol consumption, and illicit drug use (IOM, 2005a). In the alcohol arena, youth are exposed to a variety of advertisements and other forms of marketing that promote alcohol consumption (NRC and IOM, 2003). Social marketing campaigns targeted to youth to reduce the rates of underage drinking have shown some positive results. For example, one study found that a social marketing campaign focused on correcting perceived social norms about drinking on a college campus among students reduced students’ drinking rates (Mattern and Neighbors, 2004).
Better studied efforts may be found in those related to reducing youth drug use. The Partnership for a Drug-free America is a coalition of communication, health, medical, and educational professionals that has received donated media time valued at more than $3 billion to support antidrug advertisements that are positioned to air during large-audience viewing prime-time television (PDFA, 2005). Similarly, The National Youth Anti-Drug Media Campaign, sponsored by the Office of National Drug Control Policy, has sought to focus youth attention on active alternatives to using illicit drugs, alcohol, and tobacco (ONDCP, 2005). Evaluations of the $1 billion campaign (ONDCP, 2003) from 1999–2001 reported that while there was some effect on parental behavior, there was limited ability to attribute declines in youth drug use to the advertisements (NIDA, 2002). The most recent evaluation of the campaign in 2003 did not show a reduction in youth marijuana consumption (Hornik et al., 2003).
A particularly interesting example of the social marketing approach to youth behavior change can be found in the truth® campaign of the American Legacy Foundation, an effort to use branding to achieve a social good (similar to the VERB™ campaign). In 2000, the American Legacy Foundation launched truth®—a national, multimedia tobacco control social marketing campaign targeting youth, ages 12–17 years, to discourage tobacco use (Farrelly et al., 2005). The truth® brand represents an aspirational antismoking brand for teens that builds a positive image of youth as nonsmokers, cool and edgy, and rebellious against the tobacco industry. The truth® brand is a component of the social marketing campaign that encourages a set of behavioral objectives including encouraging youth to develop positive beliefs about not smoking by developing a brand that competes with cigarette brands; establishing high levels of brand awareness and brand recognition and value for the truth® brand; encouraging youth to adopt these positive beliefs and reduce the likelihood of smoking; and encourag-
ing youth to adopt and pass on values of the truth® brand to their peers (Evans et al., 2005b).
The messages of the truth® campaign describe the tobacco industry’s intentional attempts to market a harmful product to teens and its denial of the addictive and unhealthful effects of cigarettes, and were designed to empower youth to take action by joining the statewide youth antitobacco group (Niederdeppe et al., 2004). The campaign employed several activities, including a variety of television PSAs, billboards, print advertisements, and posters. An evaluation of the truth® brand has demonstrated that brand recognition and value may be a mediator for the relationship between the truth® campaign exposure and intermediate outcomes (e.g., antitobacco commitment) associated with reduced smoking (Evans et al., 2005b). Field marketing has been identified as a necessary component to enhance relevance of the truth® campaign to youth (Eisenberg et al., 2004). Two separate evaluations of the campaign suggest that it has contributed to a decline in youth tobacco use in Florida (Niederdeppe et al., 2004), and that it also has accounted for a significant portion of the recent national decline in youth smoking prevalence rates among students in grades 8, 10, and 12, which declined from 25.3 percent to 18 percent between 1999–2002 (Farrelly et al., 2005).
Challenges and Opportunities for Social Marketing Programs
Experience to date suggests that, in the near term, it is easier to create awareness in a social marketing campaign than it is to impact the attitudes and behaviors. Attitude changes may require sustained efforts over months and behavioral changes on a significant scale will take even longer. Maintaining those behavioral changes is an additional challenge, a lesson especially applicable to eating and physical activity, which are complex behaviors. An evaluation of populationwide communication initiatives on health matters has shown that in general, attitude and behavioral changes may occur more quickly if campaigns have the following characteristics: exposure to the campaign materials is high; messages are disseminated through multiple channels; campaign content is based on a valid change theory; the campaign conveys new information; the behavior is easy to perform; the target audience has opportunities to perform the behavior; services are available to support the new behavior; and family, friends, and social networks support the behavior (CDC, 2005d).
The complexity inherent in any effort that seeks at once to address the multiple factors that influence health, while striking a balance between efforts directed at the individual and the social-environmental context in which people live, requires very careful planning. Like commercial market-
ing, it is clear that social marketing efforts need to be based on insightful formative research. Many programs or campaigns have claimed to use social marketing principles, but have lacked formative research, planning, and evaluation to effectively launch and sustain a successful social marketing program. To facilitate the development of the VERB™ campaign, and to provide direction for its evaluation, the CDC used both consumer research and a logic model that linked expected program inputs and activities with anticipated program outcomes and benefits (Huhman et al., 2004). This research is necessary not only for the design of an effective media advocacy and communication component but for careful design of the other related change agents in the policy, legal, and regulatory environments (Andreasen, 2002; Dorfman et al., 2005; Wallack et al., 1993).
The character of social marketing efforts varies with the nature of the target change. The more complex are the changes sought, the broader the environmental scope that must be engaged. For example, a community-based campaign—the 1% or Less campaign—was successful in using paid advertising and community education to encourage a shift from higher-fat to low-fat milk (Wootan et al., 2005), but efforts targeting the multiple behaviors and choices necessary to address this complex set of factors associated with childhood obesity must be layered with multiple strategies, engaging a broader environment.
Partnerships can be a key resource in these complicated circumstances, as reflected in the work of PBH (2005b), and national and state WIC program efforts (IOM, 2005c; Social Marketing Institute, 2005), which encouraged partners at the community level to provide the infrastructure necessary to manage complex community and regional activities. Accordingly, community involvement is key in program design for efforts whose success depends on change at the community level (Backer and Rogers, 1993). This is particularly true for the design of efforts to reach racial/ ethnic minority audiences whose values, world views, orientations, and priorities must be identified and engaged throughout the planning process (Williams and Kumanyika, 2002).
A central challenge to large-scale social marketing efforts is discerning their impact. The reach and results of these campaigns are often diminished by ongoing secular trends (Hornick et al., 2003). Programs whose impact were likely important, but which were difficult to identify because of both the complexities of the interactions and the background of secular change, include some of the large-scale cardiovascular prevention trials of the 1970s and 1980s, and several large-scale multifactorial interventions for youth (Killen et al., 1988; Perry and Silvis, 1987). The challenge of crafting a reliable evaluation for these efforts may be even more difficult than designing the intervention itself.
Finding: Evidence for the effectiveness of social marketing programs to promote healthful behaviors is promising but mixed. Programs with the most positive results have had higher funding, been more sustained, been shaped by formative research, deployed an integrated marketing approach, and used ongoing monitoring and evaluation. These characteristics are the likely requirements for achievement of successful social marketing programs to improve the diets of children and youth.
LEGAL REGULATION OF ADVERTISING AND MARKETING
Implicit in the question of whether food and beverage marketing influences the health behaviors and outcomes of children and youth is the question of whether advertising should be legally regulated. Indeed, such proposals have been formally advanced here and abroad. Because of the prominence and complexity of this matter, the committee undertook a detailed analysis of the issues, precedents, and considerations. Typical to such analyses, the review is extensively documented in endnotes that can be found in Appendix G.
Public support for regulation of food and beverage advertising is mixed, but may be increasing. A Princeton Survey in 2004 found that 37 percent of parents favored restricting “junk food” advertisements during children’s television shows, but 56 percent opposed such restrictions (Rideout, 2004). A national survey by RTI International in 2005 found that 57 percent of respondents believed that watching two or more hours of television daily contributed substantially to childhood obesity, with 91 percent believing that parents bore “a lot” of responsibility, followed by television advertisers at 45 percent (Evans et al., 2005a). A Wall Street Journal Online and Harris Interactive Internet Poll conducted in 2005 reported that 68 percent of those surveyed believed that government should be able to take companies to court if they mislead children and their parents about the nutritional value of the foods they sell, and 55 percent believed that the government should take a more active role in regulating the types of marketing and advertising practices that the food industry directs toward children (The Wall Street Journal Online and Harris Interactive, 2005).
From an historical perspective, legal regulation in the United States must be understood against the background of the common law, created by courts in the course of deciding litigated cases. Persons injured by consumer products could traditionally sue at common law for redress of injury or for compensation for the violation of contractual obligations. As a consequence of this history, litigation in the food domain has traditionally been used to protect those who have been harmed by food products. Common law standards that governed such lawsuits are now typically supplemented by ex-
plicit statutes. Litigation proceeds based upon the distinct standards of the 50 states, which are in a process of continuous evolution.
The private right of citizens to take legal action has played an instrumental role in protecting consumers from harmful practices and products in the United States. By compensating injured consumers, litigation not only raises public awareness about an issue or concern that may be detrimental to public health or society, it also creates incentives for an industry to engage in voluntary self-regulation and to limit or prevent harmful practices to consumers (Daynard et al., 2004).
The environment in which consumers’ choices are shaped and informed is an important influence on their diet and health. But efforts to regulate the marketing of commercial products and services can be highly controversial. The constitutional policy of the First Amendment is that truthful and non-misleading advertising serves the public good by promoting informed decision making, and that truthful advertising also stimulates healthy competition that encourages industry innovation (Zywicki et al., 2004). Like all speech, advertising may nevertheless at times be regulated, especially if it is misleading or untruthful. Advertising to children raises special issues because they are too young to be regarded as fully autonomous decision-makers. There is cause for concern if advertising encourages children and youth to adopt eating behaviors that may have lifelong adverse effects on their health (Yach et al., 2005).
Legal Regulation of Food
Plaintiffs seeking redress for injuries caused by food products can allege that a defendant has negligently prepared or served food (Clime v. Dewey Beach Enterprises, Inc., 1993); that a defendant has served food that is unreasonably dangerous, defective, or is otherwise in violation of an implied warranty of sale that food will be fit for the ordinary purposes for which it is served (Cain v. Sheraton Perimeter Park South Hotel, 1991); or that a defendant has engaged in deceptive or fraudulent advertising regarding food (People v. Block & Kleaver, Inc., 1980). Because all such lawsuits tend to turn on the customary and reasonable expectations of consumers, they are awkward vehicles for legal efforts to regulate high-calorie and low-nutrient foods and beverages that contribute to obesity. A federal district court recently observed in rejecting claims brought by two obese adolescents that the contents of McDonald’s Corporation products rendered them inherently dangerous:
“It is well-known that fast food in general, and McDonald’s products in particular, contain high levels of cholesterol, fat, salt, and sugar, and that such attributes are bad for one…. If a person knows or should know that eating copious orders of supersized McDonald’s products is unhealthy
and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses” (Pelman v. McDonald’s Corporation, 2003).1
Even the possibility that such litigation might develop, however, prompted tort reform legislation—the Personal Responsibility in Food Consumption Act (H.R. 339, 108th Congress, 1st Session, 2004)—still under consideration in Congress (H.R. 554, 109th Congress, 1st Session, 2005). The goal of the bill is “[t]o prevent legislative and regulatory functions from being usurped by civil liability actions brought or continued against food manufacturers, marketers, distributors, advertisers, sellers, and trade associations for claims of injury relating to a person’s weight gain, obesity, or any health condition associated with weight gain or obesity.” The bill sought “to prevent frivolous lawsuits against the manufacturers, distributors, or sellers of food or non-alcoholic beverage products that comply with applicable statutory and regulatory requirements.” In effect, the bill seeks to exclude normal litigation as a means for legally regulating food to ameliorate harms associated with obesity. More than 19 states have considered or are considering similar tort reform bills for obesity-related claims (Daynard et al., 2004; TFAH, 2005). Louisiana, which has one of the highest adult overweight and obesity prevalence rates in the United States (CDC, 2002), is one state that has passed legislation to protect restaurants from obesity-related lawsuits (Daynard et al., 2004).
Legal Regulation of Advertising and Marketing
The legal regulation of food is frequently directed not merely at defects or dangers in the food itself, but also at the ways in which food is marketed. Common law and related statutory causes of actions have traditionally provided redress for harms caused by the fraudulent selling of food such as misbranded meat (United States v. Jorgensen, 1998), misleading or deceptive advertising related to food (National Bakers Services, Inc. v. FTC, 1964), and failure to warn with regard to dangerous food. The precise legal standards vary in the 50 states, and also change over time.
The regulation of consumer advertising is a central task of the Federal Trade Commission (FTC). The FTC is authorized to regulate “unfair or deceptive acts or practices in or affecting commerce” (15 U.S.C. § 45(a)(1), 2002),2 and in particular, any “false advertisement … in or having an effect upon commerce, by any means, for the purpose of inducing, or which is likely to induce, directly or indirectly the purchase of food….” (15 U.S.C. § 52(a)(1), 2002).3 “[A]n advertisement is deceptive under the Act if
it is likely to mislead consumers, acting reasonably under the circumstances, in a material respect…. In implementing this standard, the FTC examines the overall net impression of an advertisement and engages in a 3-part inquiry: (1) What claims are conveyed in an advertisement? (2) Are the claims false or misleading? (3) Are the claims material to prospective consumers” (Kraft, Inc. v. FTC, 1992)? The FTC regulates unfair and deceptive advertisements for food products (see, e.g., Nestlé Food Company, 1992; The Isaly Klondike Company, 1993).4 Unlike courts, which are empowered only to resolve particular controversies, the FTC can promulgate general rules defining unfair, misleading, or false advertising (16 C.F.R. § 410.1, 2005; 16 C.F.R. § 239.1–5, 2005). In determining the acceptability of advertising to children, the law—in both its judicial and administrative manifestations—recognizes the special status and cognitive limitations of children. Advertisements that are acceptable if addressed to an adult, might be deceptive, unfair, or misleading when directed to a child (Bunch v. Hoffinger Industries, Inc., 2004; Swix v. Daisy Manufacturing Company, 2004).5 When an act or a practice is targeted to a specific audience such as children, the FTC will determine whether it is unfair or deceptive by reference to its effect on a reasonable member of that group (Federal Trade Commission Unfairness Policy Statement, appended to International Harvester Company, 104 F.T.C. 949, 1984). The FTC thus evaluates the legality of advertisements or sales practices directed to children in terms of how they are perceived by an ordinary child. The FTC has required those who sought to use television commercials containing characters such as Santa Clause or the Easter Bunny to promote 1-900 telephone numbers allowing children to speak with the fictional characters and to win prizes, to disclose a range of relevant information “in a manner understandable to children” (see Audio Communications, Inc., 114 F.T.C. 414, 1991; Phone Programs, Inc., 115 F.T.C. 977, 1992). Congress followed up on the FTC’s efforts in this area by enacting the Telephone Disclosure and Dispute Resolution Act (P.L. 102–556, 106, 1992; codified at 15 U.S.C. § 5701 et seq., 2004), which, among other requirements, mandated that the FTC promulgate rules which prohibited marketers from directing advertisements for pay-per-call services at children under the age of 12 years, unless the service was for a bona fide educational service (15 U.S.C. § 5711(a)(1)(d), 2002).
In 1978 the FTC sought commentary on a proposed rule that would ban television advertisements addressed to children too young to understand the selling purpose of advertising and also ban television advertisements for food products posing the most serious dental health risks which are directed to, or seen by, audiences with a significant proportion of older children (Ratner et al., 1978). The proposed rulemaking, known as “kidvid,” proved intensely controversial (Beales, 2004), evoking criticism from
Congress (FTC Improvements Act of 1980, P.L. 96–252, 1980),6 and resulted in a 1981 FTC staff recommendation that the FTC terminate the proposed rulemaking (Elliott et al., 1981).
There is an important legal distinction between regulations of food and regulations of advertising for food. The former poses few constitutional questions, whereas the latter directly raises issues of freedom of expression. Although the Supreme Court had held in 1942 that “the Constitution imposes no … restraint on government” regulation of “purely commercial advertising,” (Valentine v. Chrestensen, 1942), it reversed course in 1976 (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 1976) and created what is now known as “commercial speech doctrine,” a complex web of rules restricting government regulations of private advertising. The precise nature of these rules remains contested and complex, but the doctrine which the Court uses most frequently to resolve constitutional issues of commercial speech is the Central Hudson test:
In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest (Central Hudson Gas & Electric Corporation v. Public Service Commission, 1980).7
Under the Central Hudson test, government can regulate advertisements which are misleading. There is some suggestion in the case law that advertisements that are merely potentially misleading, as distinct from inherently misleading, may not be prohibited altogether, but must instead be subject to milder correctives, such as mandatory disclosure requirements designed to ameliorate potential deception (Peel v. Attorney Registration and Disciplinary Commission, 1990).8 Because “[t]he determination whether an advertisement is misleading requires consideration of the legal sophistication of its audience” (Bates v. State Bar of Arizona, 1977), it is likely that advertisements addressed to children may be deemed misleading even if they would not be if addressed to adults (FTC v. R. F. Keppel & Brothers, Inc., 1934).9
The Central Hudson test imposes constitutional restraints on government efforts to restrict truthful, non-misleading advertisements in order to achieve desirable policy objectives like preventing smoking by children (Lorillard Tobacco Company v. Reilly, 2001) or promoting energy conservation (Central Hudson Gas & Electric Corporation v. Public Service Commission, 1980). Government regulations must directly advance a substantial state interest in a manner that is not more “extensive than is neces-
sary.” It is typically not difficult to demonstrate that well-designed regulation directly advances the interests it is designed to serve. Although the government “‘must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree,’” (Greater New Orleans Broadcasting Association v. United States, 1999), the Supreme Court has generally proved receptive to the practical “theory that product advertising stimulates demand for products, while suppressed advertising may have the opposite effect” (Lorillard Tobacco Company v. Reilley, 2001).10
In recent years, however, the Supreme Court has tended to interpret the final prong of the Central Hudson test with increasing severity. It has used the “no more extensive than is necessary” requirement to strike down many government efforts to regulate truthful, non-misleading advertising (Lorillard Tobacco Company v. Reilly, 2001; Thompson v. Western States Medical Center, 2002). The Court has not been entirely consistent in its interpretation of this requirement. Although, on the one hand, the Court has “made it clear that ‘the least restrictive means’ is not the standard” and that case law instead requires merely “a reasonable ‘fit between the legislature’s ends and the means chosen to accomplish those ends’” (Lorillard Tobacco Company v. Reilly, 2001),11 the Court has also, on the other hand, held “that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so” (Thompson v. Western States Medical Center, 2002). What is clear is that a majority of the Court has grown decidedly unreceptive to the idea that the state can prohibit “the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information” (Thompson v. Western States Medical Center, 2002, at 374–375).
Because the focus of the Court’s commercial speech doctrine has been to preserve the flow of accurate information to consumers (First National Bank of Boston v. Bellotti, 1978),12 the Court has been somewhat more tolerant of regulations regarding the use of trademarks. It has regarded trademarks as “a form of commercial speech that has no intrinsic meaning” (Friedman v. Rogers, 1979), and hence it has concluded that the use of trademarks in advertising offers “significant possibility that trade names will be used to mislead the public.” Efforts to restrict the use of trademarks must still survive scrutiny under Central Hudson (Bad Frog Brewery, Inc. v. New York State Liquor Authority, 1998; Transportation Alternatives, Inc. v. City of New York, 2002), but constitutional review will take account of the kind and quality of information conveyed by marks and images, as well as the high potential for marks and images to mislead.
The extent to which Central Hudson will govern restrictions on marketing as well as restrictions on advertising is not clear. In Hoffman Estates
v. Flipside, the Court considered a village ordinance that made it illegal for any person to “sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use with illegal cannabis or drugs” without first obtaining a license from the government (Hoffman Estates v. Flipside, Hoffman Estates, Inc., 1982). Despite the fact that the restrictions of the ordinance were triggered because of “the presence of drug-related designs, logos, or slogans on paraphernalia,” the Court ruled that “the village does not restrict speech as such, but simply regulates the commercial marketing of items that the labels reveal may be used for an illicit purpose.” The Court added that “insofar as any commercial speech interest is implicated here, it is only the attenuated interest in displaying and marketing merchandise in the manner that the retailer desires. We doubt that the village’s restriction on the manner of marketing appreciably limits Flipside’s communication of information.”
In Lorillard Tobacco Company v. Reilly (2001) the Court upheld against the First Amendment challenge a Massachusetts law that required retailers to place all tobacco products behind a counter and that prohibited retailers from permitting customers to handle tobacco products before they had contact with a salesperson. The Court held that even “[a]ssuming that petitioners have a cognizable speech interest in a particular means of displaying their products,” the statute survived First Amendment scrutiny because it sought “to regulate the placement of tobacco products for reasons unrelated to the communication of ideas.”
These decisions suggest that the line between regulating advertising and regulating the marketing of products is quite unclear. The Court has intimated that the latter may be subject to different and more lenient forms of constitutional scrutiny than the former, even if marketing regulations are triggered by communicative content. Yet lower courts have applied the Central Hudson test to restrictions on marketing that include telemarketing (Mainstream Marketing Services, Inc. v. FTC, 2004), “winback” marketing (Southwestern Bell Telephone, L.P. v. Moline, 2004), and the use of consumer information in marketing (Trans Union, LLC v. FTC, 2002).
The Central Hudson test governs regulations of advertising that apply to the general public. It is probable that the test will not pertain if government wishes to regulate advertising within specific and limited institutional contexts, like prisons or schools, in which the state exercises more comprehensive managerial control. The Court has held that in such environments state regulations of speech should be treated with special and considerable deference (Burbridge v. Sampson, 1999; Hazelwood School District v. Kuhlmeier, 1988; Jones v. N.C. Prisoners’ Labor Union, Inc., 1977; Thornburgh v. Abbott, 1988; Turner v. Safley, 1987; Williams v. Spencer, 1980).
Because “there is a compelling interest in protecting the physical and
psychological well-being of minors” (Sable Communications, Inc. v. FCC, 1989) special constitutional rules may also apply to the regulation of advertising addressed to children. Although children retain First Amendment rights, it is also clear that in “at least … some precisely delineated areas, a child … is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees” (Ginsberg v. New York, 1968). For this reason “material which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children.” Specific constitutional concerns may be raised if state regulations substantially interfere with the ability of parents to communicate information to their children (Bolger v. Youngs Drug Products Corporation, 1983), but even if “the supervision of children’s reading may best be left to their parents, the knowledge that parental control or guidance cannot always be provided and society’s transcendent interest in protecting the welfare of children justify reasonable regulation of the sale of material to them”(Ginsberg v. New York, 1968). Schools have broad discretion in restricting speech if that speech poses a material and substantial disruption (Tinker v. Des Moines Independent School District, 1969), bears the imprimatur of the school (Hazelwood School District v. Kuhlmeier, 1988),13 or is inconsistent with its basic educational mission (Bethel School District v. Fraser, 1986).
The primary constitutional constraint which the Court has imposed on the regulation of children’s advertising flows from the idea that “the governmental interest in protecting children from harmful materials … does not justify an unnecessarily broad suppression of speech addressed to adults” (Reno v. American Civil Liberties Union, 1997). Thus the Court ruled in a recent case that even if a state has an important interest in regulating the advertising of tobacco to children, it must nevertheless respect the fact that “tobacco manufacturers and retailers and their adult consumers still have a protected interest in communication”(Lorillard Tobacco Company v. Reilly, 2001). Regulation of children’s advertising must not only satisfy the final prong of the Central Hudson test, but it must also respect the integrity of communications between an advertiser and adults. It may not “reduce the adult population … to reading only what is fit for children” (Butler v. Michigan, 1957). As the Court recently said in the context of striking down restrictions on commercial mail designed, in part, to limit children’s access to certain information: “The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox” (Bolger v. Youngs Drug Products Corp., 1983; Lorillard Tobacco Company v. Reilly, 2001).
There are also distinct constitutional rules that apply to federal regulation of the broadcast media. Although “broadcasting is clearly a medium affected by a First Amendment interest” (Red Lion Broadcasting Company
v. FCC, 1969), it is accorded “special treatment” (Action for Children’s Television v. FCC, 1995; FCC v. Pacifica Foundation, 1978). This is because broadcast frequencies are said to constitute “a scarce resource” that broadcasters hold in trust for the general public (Columbia Broadcasting System, Inc. v. Democratic National Committee, 1973; Red Lion Broadcasting Company v. FCC, 1969)14 and because the broadcast media are said to constitute a “a uniquely pervasive presence in the lives of all Americans” that reach into “the privacy of the home,” where they become “uniquely accessible to children, even those too young to read”(FCC v. Pacifica Foundation, 1978). The Court has concluded that “the government’s interest in the ‘well-being of its youth’ and in supporting ‘parents’ claim to authority in their own household’ … amply justifies special treatment of indecent broadcasting.” In the special case of broadcast media, government regulation can infringe on adult communicative rights in order to ensure the protection of children.
Congress has largely entrusted the regulation of broadcast media to the Federal Communications Commission (FCC), which possesses a “broad” and “expansive” power “to assure that broadcasters operate in the public interest” (McConnell v. FEC, 2003; Red Lion Broadcasting Company v. FCC, 1969). The FCC has promulgated rules to protect the interests of children. Of particular pertinence are the FCC’s rules enforcing the Children’s Television Act, P.L. No. 101–437, 104 Stat. 996 (1990),15 which sets advertising limits for children’s programming. The Act requires television broadcasters to “limit the duration of advertising in children’s television programming to not more than 10.5 minutes per hour on weekends and not more than 12 minutes per hour on weekdays” (47 U.S.C. § 303a(b), 2002).16 The FCC interpreted children’s programming to refer to “programs originally produced and broadcast primarily for an audience of children 12 years of age and under,”17 and it crafted rules specifically designed to protect such children, who “constitute the audience primarily affected by overcommercialization because they are the persons who have the most difficulty distinguishing between commercial and programming material.”18 The FCC also regulates television stations’ broadcast of “program-length commercials,” which it defines as “a program associated with a product, in which commercials for that product are aired” (16 C.F.R. § 308.3(a)(6), 2005).19 The FCC has applied these rules to prevent integrated cross-promotion. In one instance, it fined a television station which broadcast an advertisement for “Disney on Ice” during an episode of “Chip and Dale’s Rescue Rangers.” In holding the station responsible for violating the rule, the FCC noted that the policy was motivated by “a fundamental regulatory concern, that children who have difficulty enough distinguishing program content from unrelated commercial matter, not be all the more confused by a show that inter-
weaves program content and commercial matter” (UTV of San Francisco [KBHK-TV], 10 FCC Record 10,986 [Oct. 4, 1995]). The FCC has held various other stations liable for violating this marketing restriction as well (North Carolina Broadcasting Partners [WCCB-TV], 16 FCC Record 5,627 [Mar. 7, 2001]; Gary M. Cocola [KXVO-TV], 15 FCC Record 9,192 [May 26, 2000]; Peak Media of Pennsylvania [WWCP-TV], 14 FCC Record 13,937 [Aug 27, 1999]).
Because of the special constitutional status of the broadcast media, there is little doubt that these FCC regulations meet First Amendment standards, even though they substantially interfere with the ability of advertisers to reach adults, who often view children’s programs. The committee agreed that there was potential benefit from children’s advertising closely aligned with healthful diets, and if an emphasis on the advertising of healthful foods and beverages could not be accomplished voluntarily, Congress should consider and, most felt, enact legislation mandating the shift on both broadcast and cable television. The customary deliberations of the legislative process would afford the opportunity for further assessment of the execution and implications of such a shift.
Government regulation of the Internet, by contrast, has been held subject to ordinary First Amendment principles (Reno v. American Civil Liberties Union, 1997). At the present time, the FTC is the lead federal agency in regulating commercial practices on the Internet. As of 2004, the FTC had pursued approximately 300 cases that challenged Internet practices involving substantial harms to consumers (North Carolina Broadcasting Partners [WCCB-TV], 16 FCC Record 5,627 [Mar. 7, 2001]; Gary M. Cocola [KXVO-TV], 15 FCC Record 9,192 [May 26, 2000]; Peak Media of Pennsylvania [WWCP-TV], 14 FCC Record 13,937 [Aug. 27, 1999]). Some of these cases involved deceptive or unfair marketing practices deployed in other media as well as the Internet, such as deceptive weight loss practices. Other cases have involved advertising or marketing practices that are unique to the Internet, such as the use of spyware (FTC v. D Squared Solutions, LLC, 2003). The FTC has also issued rules regulating websites’ collection of personal information from children pursuant to its authority under the Children’s Online Privacy Protection Act (COPPA) (15 U.S.C. §§ 6501–6506, 2002).20 The regulations apply to operators of any websites or online services directed at children and to operators who knowingly collect or maintain personal information from a child.
The rules impose various requirements on operators, including that they post a clear and prominent link to a notice of their privacy policies with regard to children on the home pages of their websites or online service as well as in each additional area where personal information is collected from children. These notices must include information about the identity of the operator, the types of personal information that is being
collected from children, how the operator uses that information, and whether that information is disclosed to third parties. In addition, the regulations require that the operators obtain parental permission before they collect, use, or disclose the personal information of children. Operators must provide parents with a reasonable means to review the personal information collected from their children and to stop its maintenance or continued collection if they desire. The regulations prohibit an operator from conditioning a child’s “participation in a game, the offering of a prize, or another activity on the child’s disclosing more personal information than is reasonably necessary to participate in such activity.” Finally, the regulations require operators to establish and continue reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children (16 C.F.R. 312.8).21
It is likely that restrictions on Internet speech will be subject to the same kind of First Amendment scrutiny as would be deployed were the restrictions applicable to speech in movies or in newspapers. The nature of this scrutiny will depend upon whether the communication at issue is categorized as “public discourse” (Hustler Magazine v. Falwell, 1988), in which case constitutional review will be quite strict, or instead as “commercial speech,” in which case it will be subject to the more lenient standard of the Central Hudson test. Regulation of the Internet poses unresolved constitutional issues because the constitutional status of much speech on the Internet is at this time highly uncertain.
Increasingly prominent are “advergames,” which contain branded products built directly into a game through video games or Internet-based games with the intent to sell products (Chapter 4). Courts are just now beginning to rule that video games, if they are sufficiently artistic and complex, can be “analytically indistinguishable from other protected media, such as motion pictures or books, which convey information or evoke emotions by imagery, and are protected under the First Amendment” (American Amusement Machine Association v. Kendrick, 2001; Interactive Digital Software Association v. St. Louis County, 2003; Video Software Dealers Association v. Maleng, 2004; Wilson v. Midway Games, 2002). If advergames seem to have the primary purpose and effect of selling products, however, they might be categorized as advertisements rather than motion pictures or books, and hence subject to the standards of the Central Hudson test. There is also the question of how courts will categorize entire websites, such as Postopia.com®, hosted by Viacom International (compare Ford Motor Company v. Texas Department of Transportation, 2001 with Fred Wehrenberg Circuit of Theatres, Inc. v. Moviefone, Inc., 1999). This website features Kraft Foods’ food and beverage brands that contain both advergames and other types of commercial informational content (Viacom International, 2005).
Finding: Regulations for those who advertise and market food and beverage products to children will need to evolve as the food industry develops new techniques for promoting its products. How current law will be applied to rapidly changing areas like the Internet cannot currently be predicted with confidence. However, future regulatory interventions should certainly be taken on the basis of reliable data concerning the impacts on children of the marketing and advertising of food and beverage products. Currently, neither the Federal Trade Commission, nor any other responsible federal agency, collects or maintains such data.
OTHER POTENTIAL POLICY APPROACHES
The knowledge base supporting the importance of diet in promoting health and preventing disease has evolved during the last half century, which occurred after many U.S. agricultural policies had developed and been implemented. U.S. agricultural and economic policies have historically supported the production of a plentiful and affordable food supply, and health-promotion and disease-prevention objectives have not played a central role in these policies (Tillotson, 2004). Examining the historical context of the evolution of food and nutrition policies is important to understand the role they may have played in contributing to the rise in obesity rates and other chronic diseases. This section identifies potential actions that have been suggested in various quarters to create industry incentives or support agricultural subsidies to produce and market more healthful foods, as well as those to reduce the demand for less healthful foods.
Price Supports and Subsidies
An analysis of the agricultural production in the United States relative to recommended dietary guidelines showed that the food supply contains a substantial surplus of sugars and oils; approximately the expected amounts of meat, milk, and grains; and substantially less than what is needed for fruits and vegetables (Duxbury and Welch, 1999). Several agricultural policies and regulations that may affect the food sector and consumer food choices and dietary intake are federal farm assistance programs that include price- and income-support programs, producer-funded marketing orders, and research and promotion agreements (Ralston, 1999). Price and income support programs have historically affected the market supply of foods. From 1970 to 1985, poultry became a lower-priced alternative to red meat, and consumers switched from more expensive animal-based fats to lower-priced vegetable-based fats and oils (IOM, 1991).
Historically, price supports for milk were readily available based on the butterfat content of milk rather than the low-fat content of milk. In
1991, the Institute of Medicine (IOM) recommended that the dairy industry and companies that sell dairy products work toward changing the milk pricing system to encourage dairy producers to breed and manage their herds for the production of lower fat milk in accordance with changing consumer demand (IOM, 1991). Empirical research has shown that the dairy industry could receive economic benefits from the explicit promotion of low-fat milk, but the nutritional benefits of such promotion may be offset by dietary substitutions for fat from other types of foods (Pelletier et al., 1999).
Using price subsidies to encourage healthful food consumption, such as fruits and vegetables, in the United States has not been well explored but warrants further research. This type of research into subsidizing the growth, production, and consumption of healthier foods could improve knowledge about the feasibility of encouraging subsidies as a policy instrument to promote healthier food choices. An analysis of the U.S. produce production compared to the Dietary Guidelines for Americans showed sizable deficits in vegetable and fruit production in the United States. There are economic opportunities to increase the production of fruits and vegetables in different regions and to increase the U.S. government purchase of domestic surplus fruits, vegetables, and specialty crops that could be used for schools and other food service establishments (Branaman, 2003; Duxbury and Welch, 1999).
Tariff regulations cover a broad array of sectors other than agriculture, including trade policies, such as the North American Free Trade Agreement (NAFTA), restrictions on mergers, and environmental requirements. These regulations may affect the price or availability of specific food products. Other government regulations and programs may also affect food choices such as changes in welfare assistance regulations, which can increase or decrease household income and affect consumer food choices. How these regulations and polices impact individual dietary choices depends on how the regulations affect retail food prices and how responsive consumers are to the price changes (IOM, 1991). Ingredient costs are a small fraction of retail prices for many processed foods, but commodity prices are a larger proportion of food retail prices, especially for fresh meat, fish, poultry, eggs, milk, cheese, fruits, and vegetables. Consumers are not very responsive to price changes for poultry, eggs, fish, milk, and cheese, but they are more responsive to the prices of some fresh fruits and vegetables, as well as pork and beef (Ralston, 1999).
An imposition of taxes on certain foods and beverages, particularly ones that are salty, high-calorie, high-fat, high in added sugars, and low-
nutrient has been suggested by certain public health advocates as a viable disincentive to discourage the consumption of less healthful foods and beverages (Brownell and Horgen, 2004; Kuchler et al., 2004, 2005; Swinburn and Egger, 2002). Empirical research is not readily available to assess the effectiveness of taxing certain foods and beverages in order to influence dietary choices, but some interesting work using economic models is beginning to emerge. For example, one assessment by the Food and Resource Economics Institute in Denmark used an econometric model to predict the effect of different tax (e.g., fat, saturated fat, sugar) or subsidy (e.g., fiber) approaches to changing diets. It found that each could have an impact on consumption, but with variable results by nutrient category and by socioeconomic and geographic status. The authors suggest that, for full effect, such economic incentives might require combination with other interventions, such as related public information campaigns (Smed et al., 2005).
Experience from tobacco policy in the United States has shown that taxing cigarettes, as a component of a comprehensive state-based program, is a cost-effective means of reducing tobacco use and achieving public health gains in adults (Warner, 2005) but does not necessarily discourage tobacco use in youth (DeCicca et al., 2002). The impact of implementing taxes on certain branded food items or high-calorie and low-nutrient food and beverage categories would depend on the size of the tax, how easily manufacturers could move their resources to produce and distribute untaxed products, and on how consumers would respond to the taxes (Kuchler et al., 2004).
In 2000, 18 states implemented a tax on specifically targeted food and beverages (e.g., candy, soft drinks, soft drink syrups, gum, ice cream, diluted juices, chocolate milk, and others) and 7 states had previously imposed taxes for certain foods, or categories of foods, but the legislation had been repealed (Brownell and Horgen, 2004; Jacobson and Brownell, 2000). The rationale for the repealed laws included lobbying by the soft drink and bottling industries, retailers, distributors, and industry employees; difficulties administering the taxes due to lack of clarity for a definition of which categories of foods and beverages to tax; and opposition to taxes linked to a general fund that could be used for purposes other than promoting public health objectives (Jacobson and Brownell, 2000).
Supporters of taxation have suggested several ways to implement such policies including taxing certain types of foods and beverages (e.g., high in salt, added sugars, fat, and total calories or low in nutrients) or taxing specific categories of foods and beverages (e.g., snack foods, candy, soft drinks, and fast foods) (Brownell and Horgen, 2004; Yach et al., 2003). The evidence does not exist at this time, however, to support a definite conclusion about whether imposing a sales tax on less healthful foods
would have a significant effect on reducing sales. Consumers tend to favor taxes when the revenues will be used to fund health education programs (Jacobson and Brownell, 2000). Some have also advocated for simultaneous subsidization of fruits and vegetables to encourage more healthful diet (Brownell and Horgen, 2004; Kuchler et al., 2004). Opponents of taxation have suggested that taxation of certain categories of foods may produce unanticipated consequences for low-income consumers (Brownell and Horgen, 2004) and not produce the desirable effect of changing individuals’ dietary patterns (Kuchler et al., 2004). One study determined that a small tax (1 cent per pound) as suggested in some research would not appreciably alter consumption, but would generate large tax revenues (Kuchler et al., 2004). The IOM (2005a) concluded that there is insufficient evidence to recommend either for or against taxing these foods, and that taxation or subsidies by themselves have not been substantial enough to create sustainable changes in people’s eating behaviors. Research into a variety of factors is needed to determine the desirable combination of comprehensive policy instruments to encourage consumer behavior changes (Yach et al., 2003).
FOOD MARKETING POLICIES OUTSIDE THE UNITED STATES
The rising concern about obesity in children and youth globally has led to public health responses in many countries and organizations. An estimated 85 percent of 73 countries surveyed by the World Health Organization (WHO) had some form of regulation for television advertising to children (Hawkes, 2004) (Appendix G, Table G-1). While television advertising may be the most efficient medium for food and beverage promotion, there are also statutory or voluntary regulations for other marketing approaches and channels used to reach children including in-school marketing, sponsorship, product placement, the Internet, and sales promotion (Appendix G, Table G-2). Options for advertising regulation in various countries include partial restrictions on advertising by type of food, target group, portion size, and the times of advertising exposure; establishing upper and lower limits of advertising exposure to children of certain ages; and a complete ban on advertising to children (Hawkes, 2004).
Where advertising legislation has been enacted, such as in Sweden and Norway, and in the Canadian province of Quebec, the regulations become less relevant when advertising through broadcast media (especially television and radio) is transmitted from outside national boundaries. Advertisements that are subject to the transmitting countries’ guidelines and regulations, rather than those of the receiving countries’ regulations, presents a dilemma for countries where the national border does not serve as an effective barrier to children’s broadcast media and advertising.
Many countries use different definitions for children in developing regulations and some do not define an upper age limit. In regulations, children may be described as minors, juveniles, or young people, and the target ages may range from under 12 years to under 18 years (Hawkes, 2004). Similar marketing regulations can apply to various age groups in different countries and may create inconsistencies, especially when advertising messages transmitted externally from countries such as Sweden and Norway or the province of Quebec are subject to the transmitting countries’ guidelines and regulations that may be more lenient or define children differently.
To enhance attention, action, and consistency across the international community, the WHO developed a Global Strategy on Diet, Physical Activity and Health that provides members states with a range of policy options to address less healthful dietary practices and physical inactivity, including provisions for marketing, advertising, sponsorship, and promotion. These provisions recommended that food and beverage advertisements should not exploit children’s inexperience or credulity, should discourage messages that promote unhealthy dietary practices, and should encourage positive health messages. The Global Strategy was endorsed by the 57th World Health Assembly in 2004 (WHO, 2004).
International Chamber of Commerce
The International Chamber of Commerce (ICC) developed a series of self-regulatory codes of practice that set out ethical standards for different types of marketing, each of which includes a clause for children (Hawkes, 2004). The International Code of Advertising Practice covers television advertising. According to Article 14 of the Code, advertisements should not exploit the inexperience or credulity of children and young people (ICC, 1997). The International Code of Sales Promotion has a similar clause in Article 8 and adds that sales promotions should not harm children or young people mentally, morally, or physically, or strain their loyalty with parents or guardians (ICC, 2002). Article 7 of the International Code on Sponsorship presents an almost identical clause (ICC, 2003). The codes are frequently reflected in codes of professional associations in many countries.
The European Heart Network, concerned about the 20 percent of school-aged European children who are either obese or at risk for obesity, documented marketing trends for children in 20 European countries. The Network is developing an action plan to address childhood obesity throughout the European Union (EU) that includes protecting children from food marketing the network considers to be unhealthy (e.g., foods and beverages
that are high in fat, sugar, salt, and low in nutrients) as one of many interventions to address childhood obesity (Matthews et al., 2005).
The EU Television Without Frontiers Directive is coordinated by the European Commission Directorate-General for Education and Culture that guides policy in Europe (TWFD, 2005). The Directive, most recently revised in 1997, upholds the basic freedom and legal right to advertise to children, provided a set of minimum criteria are observed. Article 16 of the EU Television Without Frontiers Directive states that “Television advertising shall not cause moral or physical detriment to minors.” Many countries also implement regulations that restrict the timing and content of television advertising to children. As many as 25 European countries do not allow children’s television programs of less than 30 minutes duration to be interrupted by advertising, which complies with Article 11 of the EU Television Without Frontiers Directive (Hawkes, 2004).
For EU Member States, the EU Television Without Frontiers Directive regulates sponsorship and product placement as well. Under Article 17, a sponsor may not influence the content of sponsored television, a sponsor must be clearly identified as such by its name at the beginning or end of the program, and the programs may not encourage the purchase of a sponsor’s products. Article 10 prohibits hidden or surreptitious advertising. A total of 7 EU Member States and 6 other non-EU Member States appear to restrict some forms of product placement, and 4 EU Member States and Norway have explicitly banned product placement in television programs (Hawkes, 2004).
The Broadcasting Commission of Ireland introduced a new code in 2001 that bans the use of cartoon characters and celebrities to promote foods. The Children’s Advertising Code defines certain categories of food, such as fast foods, that must carry a message stating that foods should be eaten in moderation and are part of a balanced diet. Confectionary products must have an auditory or visual message stating that sugar-sweetened products can damage teeth (BCI, 2001).
The self-regulatory body in the United Kingdom is the Advertising Standards Authority (ASA), an independent entity that investigates nonadherence to the Code of Advertising, Sales Promotions, and Direct Marketing that is developed by the Committee on Advertising Practice, an industry body with representatives from marketing and media that develop and enforce the advertising guidelines. Although the code states that child-directed advertising should contain nothing that is likely to result in the physical, mental, or moral harm of children, it contains no specific rules on food advertising (Hawkes, 2005).
In 2004, a United Kingdom (U.K.) Department of Trade and Industry bill established a new regulatory body, Ofcom (Office of Communication). As the new communications sector regulator, Ofcom inherited the duties of
the five existing regulating bodies it replaced: the Broadcasting Standards Commission, the Independent Television Commission (ITC), Oftel, the Radio Authority, and the Radiocommunications Agency (Ofcom, 2004). Ofcom uses rules originally published by ITC on the amount and scheduling of advertising (Ofcom, 2005), stipulating that advertisements may not be inserted during programs designed to be broadcast in schools or during programs for children of less than half an hour scheduled duration. Ofcom recently conducted research to examine the effects of food advertising on childhood obesity and concluded that television advertising has a modest direct effect on children’s food choices. Ofcom also concluded that changing the rules for the advertising of food products that are high in fat, salt, and sugar as a single approach to combat obesity would be highly unlikely to succeed (Ofcom, 2004).
Despite the Ofcom conclusions, the U.K. Food Standards Agency has embarked on a public consultation by a diverse expert committee to develop a nutrient profiling model that would use a simple scoring system to rate the overall balance of nutrients in foods. The model would support Ofcom’s work to consider possible restrictions on advertising and other forms of marketing to children for foods that are high in fat, saturated fat, salt, or sugar (FSA, 2005). Additionally, the British Medical Association recommended, as a component of its childhood obesity prevention plan, a ban on advertising of foods that it considered to be unhealthful, including certain sponsorship programs targeted at school children and a ban on unhealthful food and beverage products from school vending machines (BMA, 2005).
The French government has recently passed legislation that mandatory health messages should accompany advertisements on television or radio for manufactured foods and sweetened beverages that are high in sugar, salt, or artificial colors. Advertisers can be exempted from including the obligatory health messages if they pay 1.5 percent of the expected profit to the French Health Education Institute to fund nutrition education programs (Carvajal, 2005). The French government’s action is based on the findings of the Hastings et al. (2003) review, sponsored by the U.K. Food Standards Agency, which focused on the impact of promotion on the food choices of children. The key findings from the review were that food promotion affects children’s preferences, purchase behaviors, and consumption, not just for different brands but also for different categories of foods (Hastings et al., 2003). The review provided evidence that fostered action to limit food and beverage promotion directed to children because of the impact on children’s health.
In Sweden, all television and radio advertising aimed at children ages 12 and younger during children’s programming was banned in 1991 (Bjurstrom, 1994; Hawkes, 2004). The ban was enacted based on the view
that children younger than 12 years cannot clearly distinguish advertising messages from program content, and on the principle that children should have the right to grow up in a commercial-free environment, especially young children who are trusting and do not understand the difference between information and the persuasive intent of advertisements or commercials (Bjurstrom, 1994). The ban is enforced by the National Consumer Ombudsman in Sweden and applies only to the Swedish commercial channel but not the Swedish channels broadcast from the United Kingdom (Hawkes, 2004; National Food Administration and National Institute of Public Health, 2005). A comprehensive evaluation was not available to assess the effectiveness of the ban on reducing exposure to child-directed television advertising. What is clear is that Swedish children’s exposure to advertising and other forms of marketing has not been eliminated, as satellite television channels originating from the United Kingdom and the United States to Sweden often provide exposure to commercial television with advertisements to children (Hawkes, 2004; MacCarthy, 2004; National Food Administration and National Institute of Public Health, 2005), which demonstrates the challenge of a global economy.
Norway enacted a ban on television advertisements to children ages 12 years and younger in 1992 (Hawkes, 2004; Norwegian Ministry of Children and Family Affairs, 2005). Although a comprehensive evaluation is not available to assess the effectiveness of the ban on reducing exposure to child-directed television advertising, the Norwegian government has developed The Norwegian Action Plan to Reduce Commercial Pressure on Children and the Young People (Norwegian Ministry of Children and Family Affairs, 2005).
Most of the countries that have regulations for in-school marketing are in Europe. Hungary is the only European country with self-regulatory guidelines that allows advertising only with the permission of the school principal (Hawkes, 2004). France, Greece, Luxembourg, and Portugal have statutory restrictions that prohibit in-school marketing. Finland and Germany permit advertising or marketing materials in schools as long as the school or the parents give consent. The governments of Denmark, Ireland, and the Netherlands issued guidelines that require advertisers and marketers to follow certain principles when targeting schools (Hawkes, 2004; Appendix G, Table G-2).
The Internet is a new medium for advertisers to market foods and beverages to consumers. In 2003, an estimated 13 percent of total spending on foods, carbonated soft drinks, and fast food advertising was done through the Internet in the United Kingdom (Matthews et al., 2005). The Internet is ranked as the second most important promotional medium that reaches children and youth after television. Given the high frequency of advertising and the novelty of this medium, countries worldwide are in the
process of developing guidelines to regulate marketing to children via the Internet. In many European countries, it is presumed that national laws on advertising and consumer protection are also applicable to advertising using the Internet (Hawkes, 2004). The most stringent regulations have been developed by the Nordic Consumer Ombudsmen for Scandinavian countries, which has implemented guidelines on e-commerce and Internet marketing (Nordic Consumer Ombudsmen, 2002). These guidelines prohibit marketers from obtaining personal information from children and from urging children to make purchases over the Internet. Marketing is not to be designed or integrated as games or activity pages, and the guidelines specifically state that businesses should not send advertising directly to children (Nordic Consumer Ombudsmen, 2002).
Finland is the only country that has regulations in place with government oversight regarding broader sales promotion activities (Hawkes, 2004). Only three European countries have regulations specific to children—Finland, Ireland, and the United Kingdom. In Ireland, sales promotion codes of practice follow those of the ICC (ASAI, 2001). The British Code of Advertising, Sales Promotion, and Direct Marketing states that “promotions addressed to or targeted at children should not encourage excessive purchases in order to participate” (CAP, 2005).
Both government and self-regulatory mechanisms exist in Canada. The Broadcast Code for Advertising to Children is statutory and restricts the use of puppets and subliminal messages to encourage children to purchase products. Advertising Standards Canada (ASC), a self-regulating industry body, is responsible for ensuring adherence to the statutory code. The code states that advertising directed to children must not exploit their credulity or lack of experience and must not present information that may harm their physical, emotional, or moral well-being (ASC, 2004). The Canadian Broadcasting Corporation, the national public broadcaster, does not accept advertising of any kind in programs directed to children younger than 12 years of age (CBC, 2005).
In addition to television, Canada regulates in-school and Internet marketing. Specifically in the province of Quebec, the Law on State Education prohibits commercial solicitation in schools. Donations are allowed, however, and commercial funding cannot be used to persuade children to consume products. Voluntary guidelines developed by the Canadian Teachers Federation state that school-commercial relationships must share similar objectives and benefit both students and staff (Hawkes, 2004).
Also in Quebec, the Consumer Protection Act prohibits television advertising directed to children ages 13 and younger and has been in effect
since 1980 (Hawkes, 2004; Quebec Government, 1980). The legislation only applies to commercial advertising, thus, educational advertising is allowed on television. In addition, the legislation cannot apply to signals originating from outside Quebec that are transmitted by cable television companies (Quebec Consumer Protection Act, 2005). Because of the television advertising ban, advertisers have changed commercials to make them less appealing to children. According to ASC, advertisements are more likely to be targeted to parents to urge them to purchase products for their children. Advertising dollars have also been diverted out of Quebec, thereby decreasing the amount of original French-language Quebec children’s programming.
A study by Goldberg (1990) suggested that soon after its enactment in 1980, the Quebec ban served to reduce children’s exposure to television commercials for sweetened breakfast cereals and consequently reduced children’s consumption of these products. Even though children were still exposed to American commercials, only the English-speaking Canadian children could recognize and were more aware of products that were advertised, such as toys and sweetened breakfast cereals, and had more of these in their homes than did French-speaking Canadian children. The French-speaking children were also less likely to urge their parents to purchase these advertised products (Goldberg, 1990). On the other hand, a more recent study suggests that despite the advertising ban that has been in effect since 1980, television food commercials viewed by French-speaking Canadian children neither represent a balanced diet nor the foods recommended by the Canadian government (Lebel et al., 2005).
The Australian obesity prevention action plan supports stricter national regulations on food advertising directed to children, and is considering a ban on advertising during children’s television viewing time (NSW Centre for Public Health Nutrition, 2005). Regulation of television in Australia is currently a combination of legislation and self-regulation with more emphasis on the statutory regulation. The Children’s Television Standards (CTS) of the Australian Broadcasting Authority implements regulations limiting the amount of advertising to children according to program classification. Advertisements aired during programs directed at preschool children (‘P’ programs) are prohibited. Advertisements broadcast during programs directed at primary school-aged children (‘C’ programs) are limited to 5 minutes every 30 minutes (ABA, 2002). CTS also limits the repetition of advertisements and those featuring children’s television personalities. Australia also has voluntary guidelines that were developed by the educational sector to regulate in-school marketing. Organizations are asked not to seek endorsement of products or services, as a condition of a sponsorship or participation in a promotion by the Australian Education Council (Hawkes, 2004).
Finding: Comprehensive evaluations are not available to assess the effect on children’s diets of countrywide bans on child-directed television advertising. Limited evidence suggests that national borders may not serve as effective barriers to children’s broadcast media and advertising where it is common to receive broadcasts from outside the receiving countries.
Various public policies and programs implemented by government at all levels have the potential to influence the diets of children and youth. Dietary guidance, nutrition education and promotion, school nutrition policies and programs, food labeling, regulation of food marketing, and food production, distribution, and pricing policies, all have the potential to affect options and choices, and the milieu within which food and beverage marketing takes place. Several education and information programs and policies are sponsored by government at federal, state, and local levels and in many venues. The policy touchstones for federal education and information programs on nutrition are the Dietary Guidelines for Americans and its graphic representation, MyPyramid. Several federal partnerships promote nutrition and healthful diets as well, including the USDA and U.S. Department of Education HealthierUS School Challenge, the DHHS Small Step and Small Step Kids!, the DHHS 5 a Day for Better Health program, and the DHHS/NIH We Can! childhood obesity prevention collaboration.
Nutrition labeling is one principal means of conveying nutrition information to the public. The importance of integrating and improving strategies for using the food label as an educational tool is emphasized by recent company initiatives to use proprietary logos or icons that communicate the nutritional qualities of their branded products. The DHHS Food and Drug Administration (FDA) is the primary agency responsible for overseeing the use of food and beverage labels to convey nutrition information and health claims, and is key to progress in ensuring the accuracy, consistency and effectiveness of industry and government initiatives using such graphics and standards to convey the nutritional qualities of foods and beverages in a form appealing and easily understood by children, youth, and their parents.
School-based interventions that reach the nation’s children and youth include nutrition education, school food services, the Fruit and Vegetable Pilot Program, and the Department of Defense’s Fresh Produce Program. Recent attention has been focused on competitive foods in schools. There are currently no comprehensive federal competitive food standards to guide
the type of products that are available and marketed in America’s schools and other venues. However, a variety of legislative initiatives pertaining to the availability, marketing, and sales of competitive foods and beverages in schools have been enacted or proposed at the state, district, and local levels.
Social marketing applies commercial marketing concepts and techniques to promote voluntary behavior change in specific groups or target audiences based on their socio-demographic, behavioral, and psychological characteristics. Evidence for the effectiveness of social marketing programs to promote healthful behaviors is promising but mixed. A central challenge to large-scale social marketing efforts is discerning their impact. Social marketing programs that have had positive results had higher funding, been sustained, been shaped by formative research, used an integrated marketing approach, and had ongoing monitoring and evaluation.
Like other dimensions of commerce, advertising and marketing is subject to regulation, including marketing that reaches children. Due to the prominence and complexity of this matter, the chapter presents a detailed analysis of the related issues, precedents, and considerations. The committee agreed that there was potential benefit from children’s advertising closely aligned with healthful diets, and if an emphasis on the advertising of healthful foods and beverages could not be accomplished voluntarily, Congress should consider and, most felt*, enact legislation mandating the shift on both broadcast and cable television. The customary deliberations of the legislative process would afford the opportunity for further assessment of the execution and implications of such a shift. Other potential policy approaches that have been suggested are reviewed, including creating industry incentives and support for agricultural subsidies to produce and market more healthful foods, as well as to reduce the demand for less healthful foods.
The rising concern about obesity in children and youth globally has led to public health responses in many countries that have developed regulatory and voluntary advertising and marketing guidelines. Similarly, several international organizations, including the World Health Organization, have developed related policies.
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