Mon August 15, 2011
Weekly Standard: Kid Tested, Not FDA Approved
Kate Havard is an intern at The Weekly Standard.
The Obama administration is after your Lucky Charms, or at least your children's. The public comment period closed on July 14 for a set of "voluntary" guidelines for the marketing of food to children. If adopted, these rules will transform the advertising of breakfast cereals.
Put forward by an interagency working group, the guidelines will establish nutritional standards that most cereals flunk — and not just those of the "Chocolate Frosted Sugar Bombs" variety. Corn Flakes will not be advertisable to children, along with Raisin Bran, Special K, Rice Krispies, and Wheaties. Plain Cheerios squeak by the proposed 2016 rules but fall foul of the "ultimate goal" for sodium effective in 2021.
While cereals are the most obvious targets of the guidelines, all foods marketed to children will have to meet the proposed nutritional standards. Many don't. Peanut butter (both smooth and crunchy) has too much saturated fat. Jelly has too much sugar. Forget about apple-cinnamon instant oatmeal and Mott's apple sauce.
These foods may still appear in grocery stores, but not in brightly colored packages adorned with cartoon characters. Toucan Sam, Cap'n Crunch, and Tony the Tiger will have to retire.
The definition of "marketing to children" is broad. A television show is deemed "targeted to children" if 20 percent of the audience is 18 or under. Any child-oriented theme, like education or parenting or T-ball, cannot be mentioned in the advertising of foods that don't meet the standards. Frosted Flakes will no longer be allowed to sponsor Little League baseball. The Coca Cola Company will have to give up its Coca Cola Scholars Foundation (which provides $3.4 million a year in scholarships) or perhaps rename it after one of the company's bottled waters. General Mills's "Box Tops for Education" program will be barred from kid-friendly cereals. The slogan "Choosy moms choose Jif" will be forbidden as too "targeted."
Martin Redish, a law professor at Northwestern University, isn't buying this. He argues that if adopted, the regulations will improperly restrict constitutionally protected speech.
The agencies defend the guidelines, he says, by calling them merely a tool for "self-regulation." But Redish says they will be anything but voluntary. If you don't "self-regulate" you'll attract the ire of the working group's member agencies: the Food and Drug Administration (FDA), the Centers for Disease Control and Prevention, the Department of Agriculture, and the Federal Trade Commission (FTC).
Flouting the guidelines may bring anything from public shaming by the White House to investigations and class action lawsuits. What food company wants to get on the FDA's bad side?
More important, Redish foresees an inevitable move toward compulsory regulation. He points to a 2010 White House report on childhood obesity which states, "If voluntary efforts to limit the marketing of less healthy foods . . . to children do not yield substantial results, the FCC [Federal Communications Commission] could consider . . . modernizing rules" for limiting ads.
Redish also quotes a high-ranking FTC official as saying that without "greater strides" under the "voluntary" guidelines, Congress is likely to "decide for all of us what additional steps are required."
Maybe, but a group called the Sensible Food Policy Coalition is pushing back. Former Obama White House communications director Anita Dunn has teamed up with 17 companies, including Kellogg, General Mills, and PepsiCo, to counter the proposed rules.
"I don't want to use the term 'overreach,' " Dunn told me, pausing for effect, "but the broad nature of the proposed regulations, both in terms of who they apply to, this gigantic universe of people, what they consider 'children's programming,' the unworkable, impracticable standards they use in their nutritional values — that's the issue."
When asked if her work with the coalition was at odds with her former roles on the Obama team, she said the regulation of children's food advertising had nothing to do with Michelle Obama's "Let's Move" campaign.
It's not a First Lady thing, Dunn said, "It's a Tom Harkin thing," adding that she's known the senator, an Iowa Democrat, since 1984, and "he's become an unbelievable ideologue."
Dunn's coalition put forward their own guidelines on July 14, just in time for inclusion in the official comments, which the working group is now reviewing. The counter-guidelines were received warmly by the FTC chairman, who called them "exactly the type of initiative the commission had in mind."
"I think everybody is looking for ways to address the significant childhood obesity problem in this country," Dunn said.
Washington seems to be addressing this the way it addresses so many things: poorly, and with a mess of top-down regulations.