Holding Big Food Accountable for False Claims of Responsible Marketing to Children

by Michele Simon and Cara Wilking

Looking back at 2013, while the food movement made progress in certain areas (such as school food and GMO labeling), when it comes to exploitative food marketing to children meaningful change remains elusive. Let’s Move director and White House chef Sam Kass recently acknowledged the obvious when he said this issue was “really tough” 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’s making sure even these minimal commitments are being kept? The question is worth exploring if we want to actually improve children’s diets—not just create positive PR buzz for Big Food. With reports of adults ever-deteriorating eating habits in 2013 coupled with appalling teen heart health, the health 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’s health:

  • A study comparing children’s fast food ads to adult-aimed ads found that McDonald’s 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’ pledges to follow the Children’s Advertising Review Unit’s (CARU) marketing guidelines, and occurred despite numerous CARU enforcement actions.
  • Ninety-one percent of ads for sugary cereals viewed by children were found to violate CARU’s guideline not to exploit children’s 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 criticized the food industry’s nutrition criteria for foods marketed to children as “based…more on the current products marketed by its members than on a judgment about what was best for children.”

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

  • In May, at McDonald’s annual shareholder meeting, CEO Don Thompson made numerous questionable statements, including that his company was “not marketing food to kids” and “not marketing in schools,” and that they “follow guidelines on responsible marketing to children.” Each of these claims is false and deceptive. Shouldn’t there be some legal accountability for such irresponsible statements at a meeting of shareholders?
  • In June, the industry-led “Healthy Weight Commitment Foundation” jumped the gun on announcing 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’t (and still isn’t) 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’s signed a “memorandum of understanding” with the Clinton Foundation regarding how the fast food giant markets soda with Happy Meals, but as one of us (Simon) uncovered, the fine print didn’t actually match the press release spin. While McDonald’s pledged to fix that misstep, many questions remain regarding the legal and policy implications of such agreements. Moreover, McDonald’s revealed that soda still accounts for 57 percent 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 FDA, state and local regulators, and the U.S. Senate. Research into energy drink self-regulation found widespread violations of pledges to not market energy drinks as a mixer with alcohol or like sports drinks. In August, a Senate committee held tobacco-style hearings 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 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 promising tool to stop deceptive food marketing claims like “natural.” Also, food marketers have been taken to court for deceptive health claims on children’s products. Just earlier this month, New York State Attorney General Eric Schneiderman announced a settlement with Abbott Laboratories over deceptive marketing of “Pediasure” 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 Public Health Advocacy Institute, Northeastern University School of Law.

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Contact Michele Simon: michele@eatdrinkpolitics.com

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