For this installment of Ask a Food Lawyer, we profile Cara Wilking, senior staff attorney with the Public Health Advocacy Institute, at Northeastern University School of Law. Her research focuses on the role of state consumer protection laws laws to limit unfair and deceptive food marketing to children. She also provides legal technical assistance to public health officials working to reduce sweetened beverage consumption and to increase access to drinking water. She is an adjunct professor at Northeastern University School of Law where she teaches the Public Health Legal Clinic.
Your role includes providing “legal technical assistance.” What does that mean?
Legal technical assistance is about providing expertise on legal and policy issues rather than providing legal advice to a client in the traditional sense. For example, I have worked with a local health department to think through different policy approaches that can be brought to bear on a tricky public health issue like reducing sugary drink consumption.
You recently co-authored a study finding that fast food television advertisements directed to children fail to meet the industry-funded Children’s Advertising Review Unit (CARU) voluntary guidelines. How are the results significant?
This was an interdisciplinary research project spearheaded by researchers at Dartmouth University’s medical school. The study analyzed TV advertisements, frame-by-frame, on four children’s networks over the course of a year. I found the stark difference in messages between adult and child advertisements to be significant. CARU guidelines specify that if an ad has a premium message (i.e. a toy), that message must be clearly secondary to the actual product advertised (i.e. the food). What the research showed, however, was that while adult ads focused on food, taste, and price, child ads focused on pretty much everything but the food; movie tie-ins, toys, giveaways, street views of the restaurant and brand logos. Even the physical size of the food images on the screen in child ads was half the size of those in adult ads.
What this shows is that CARU’s current method of analysis to determine whether fast food companies are adhering to their self-regulatory standards is inadequate. From a legal perspective, when companies make public pledges to do one thing and then do not fulfill those promises, they start to drift into making false representations to the public about their business conduct. Nike, Facebook and Myspace have been taken to task under state consumer protection laws for saying one thing and doing another. State regulators should be taking a hard look at McDonald’s and Burger King in light of these findings.
What’s the next step, legally, in addressing fast food ads directed to children?
There are several steps, actually. I think the public health advocacy community needs to address specific fast food companies when it comes to advertising. Our study showed that McDonald’s and Burger King were responsible for 99% of all child fast food advertising on television. Efforts to curb fast food advertising on television should be directed at these two companies, because, as the dominant players, any changes they make would have ripple effects across the industry.
Also, cities and states should follow San Francisco’s lead to put local pressure on companies to improve the nutritional profile of the meals they serve that are accompanied by toys. If further research shows that toy premiums in ads are so persuasive to kids that they trump any other message in the ads, then premiums should not be advertised on television or via digital media so that companies can fulfill their self-regulatory promise to keep the advertising focus on food.
What role do you think lawyers play in supporting the good food movement?
This is an interesting question for me, because lawyers fall into two categories in my line of work. In public health departments, lawyers that advise officials on their scope of authority tend to be viewed as roadblocks to creative public health problem-solving. Lawyers tend to be risk-averse in most cases, which can be perceived as contrary to the goals of pushing the public health agenda forward. On the other hand, in my role as an advocate I get to brainstorm over thorny public health issues with public health practitioners and officials. As a lawyer, I can develop viable policy approaches, point out current laws that can be enforced more aggressively, unaddressed areas that need to be looked at creatively, and anticipate potential hurdles to potential solutions.
What’s most exciting to you about the good food movement?
I think there’s a growing movement against self-regulation, which is exciting. The public health community will continue to work with food companies, but if they continue to break their self-regulatory promises, there is only so much that people can tolerate. At a certain point, public promises that are not supported by actual changes in business activities begin to look a lot like misrepresentations. I think the good food movement needs to continue being dynamic and keep up the pressure on these companies to change how they do business.
What advice do you have for aspiring food and public health lawyers?
Everyone knows that the legal job market is very difficult right now. It’s even worse for people who are looking for work that matches their worldview, values, and passion. I think there’s a sense among new graduates that doing work not in line with one’s worldview isn’t useful, and I think that mindset needs to change. There is a mental shift that needs to take place to put the focus on strong legal skill-building, instead of subject matter expertise at the beginning of a legal career. So, my advice to a new lawyer is to surround yourself with experts in a field, at the top of their game, who are willing to mentor and train you in as many practical legal skills as possible. Then, you can leverage those skills into a field that you are passionate about.