海角大神

Looking back at 2013, while the food movement made progress in certain areas (such as听school food听and听GMO labeling), when it comes to exploitative food marketing to children meaningful change remains elusive. Let鈥檚 Move director and White House chef Sam Kass recently acknowledged the obvious when he said this issue was 鈥渞eally tough鈥� given how much money is at stake for industry.

All we seem to hear from the major food corporations about marketing to children are self-serving promises and announcements of future changes. As public health lawyers, that got us wondering, who鈥檚 making sure even these minimal commitments are being kept? The question is worth exploring if we want to actually improve children鈥檚 diets鈥攏ot just create positive PR buzz for Big Food. With reports of adults听ever-deteriorating eating habits in 2013听coupled with concerns over听teen health, the stakes are too high to just wait for the food industry to do the right thing.

Following on past years, 2013 brought a steady-stream of failed voluntary efforts to protect children鈥檚 health:

• A study听comparing children鈥檚 fast food ads to adult-aimed ads found that McDonald鈥檚 and Burger King crafted messages targeting children with a focus on toy premiums and entertainment tie-ins. Such practices were in obvious violation of the companies鈥� pledges to follow the Children鈥檚 Advertising Review Unit鈥檚 (CARU) marketing guidelines, and occurred despite听numerous CARU enforcement actions.

• Ninety-one percent of ads for sugary cereals viewed by children听were found听to violate CARU鈥檚 guideline not to exploit children鈥檚 imaginations or mislead children about the benefits of using a product by associating sugary cereals with adventure, emotional appeals, play and fun.

• The former director of nutrition at the Centers for Disease Control and Prevention听criticized听the food industry鈥檚 nutrition criteria for foods marketed to children as 鈥渂ased鈥�more on the current products marketed by its members than on a judgment about what was best for children.鈥�

Meanwhile, major corporations continued to pre-empt public criticism and make additional self-regulatory pledges in potentially misleading ways:

• In May, at McDonald鈥檚 annual shareholder meeting, CEO Don Thompson made听numerous questionable statements, including that his company was 鈥渘ot marketing food to kids鈥� and 鈥渘ot marketing in schools,鈥� and that they 鈥渇ollow guidelines on responsible marketing to children.鈥� Each of these claims is false and deceptive. Shouldn鈥檛 there be some legal accountability for such irresponsible statements at a meeting of shareholders?

• In June, the industry-led 鈥淗ealthy Weight Commitment Foundation鈥澨齤umped the gun on announcing听how food corporations had met their pledge to reduce the number of calories in the food supply by 1.5 trillion. But the official scientific evaluation wasn鈥檛 (and still isn鈥檛) yet publicly available. What if the real results differ from the industry spin, who is held accountable and what are the consequences if any?

• In September, McDonald鈥檚 signed a 鈥渕emorandum of understanding鈥� with the Clinton Foundation regarding how the fast food giant markets soda with Happy Meals, but as one of us (Simon)听uncovered, the fine print didn鈥檛 actually match the press release spin. While McDonald鈥檚 pledged to fix that misstep, many questions remain regarding the legal and policy implications of such agreements. Moreover, McDonald鈥檚 revealed that听soda still accounts for 57 percent听of the beverages it sells to kids.

One bright spot for government oversight of industry self-regulation this year was energy drinks. Energy drink makers found themselves in a perfect storm of criticism and public health concern from the听FDA,听state听and听local听regulators, and the U.S. Senate.听Research into energy drink self-regulation听found widespread violations of pledges to not market energy drinks as a mixer with alcohol or like sports drinks. In August, a Senate committee听held tobacco-style hearings听with energy drink companies, calling on them to stop marketing to children. Whether energy drink marketing will improve remains to be seen, but government hearings are vital to pulling the curtain back on corporate abuses of public trust.

Holding the food industry accountable for lying about its ethical business practices has legal precedent. For example, in the late 1990s athletic shoemaker Nike came under fire for its labor practices. The company countered with a public relations campaign and public promises to improve its business conduct. When an independent review found that Nike had not followed through, the company was sued under California law for false advertising, unfair business practices, and negligent misrepresentation. After numerous appeals, Nike eventually听agreed to settle the case for $1.5 million.

So far, litigation has played a limited role in holding the food industry accountable over junk food marketing to children. However, court action is proving to be a听promising tool听to stop deceptive food marketing claims like 鈥渘atural.鈥� Also, food marketers have been听taken to court听for deceptive health claims on children鈥檚 products. Just earlier this month, New York State Attorney General Eric Schneiderman听announced听a settlement with Abbott Laboratories over deceptive marketing of 鈥淧ediasure鈥� products. In light of the mounting evidence of failed self-regulation of marketing to children, it also may be time to pursue Nike-style claims against the food industry for false pledges. If we are to truly hold Big Food accountable for promises about how it markets toward children, we need to use all the legal tools at our disposal.

Cara Wilking is senior staff attorney with the听Public Health Advocacy Institute, Northeastern University School of Law.听Michele Simon is a public health lawyer and writer of the "Eat Drink Politics" blog.听

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