1

1 

2 

3 

4 UNITED STATES OF AMERICA

5 FEDERAL TRADE COMMISSION

6 

7 

8 

9 

10 SIZING UP FOOD MARKETING AND CHILDHOOD OBESITY

11 

12 

13 

14 TUESDAY, DECEMBER 15, 2009

15 

16 

17 FEDERAL TRADE COMMISSION

18 601 NEW JERSEY AVENUE, N.W.

19 WASHINGTON, D.C.

20 

21 

22 

23 

24 

25 
2

1 I N D E X

2 

3 

4 AGENDA ITEM: PAGE:

5 Welcome, Chairman Jon Leibowitz 5

6 Remarks by Secretary Kathleen Sebelius 15

7 Presentations: New Research on Food

8 Marketing to Children 31

9 Discussion Moderated by David Britt

10 and Pauline Ippolito 79

11 Panel: Advertising to Children and

12 the First Amendment 85

13 Panel: Self-Regulatory Initiatives 142

14 Presentation and Town Hall Discussion:

15 Interagency Working Group on

16 Food Marketed to Children 207

17 Next Steps/Adjourn 259

18 

19 

20 

21 

22 

23 

24 

25 
3

1 P R O C E E D I N G S

2 - - - - -

3 MR. FENTONMILLER: If everyone could take a

4 seat, we are going to begin shortly.

5 Good morning. Am I loud enough, can you hear

6 me? I will project my voice until they adjust the

7 volume accordingly.

8 Good morning, and welcome to the FTC's forum on

9 sizing up food marketing and childhood obesity. My name

10 is Keith Fentonmiller. I'm a senior attorney here at

11 the Federal Trade Commission. Just a few quick

12 procedures before we begin.

13 First, I'm required to make some security

14 announcements. Keep your name tag on, the sticky pad

15 that is, on at all times. If you leave the building for

16 fresh air or a cup coffee or a bottle of 100 percent

17 juice or skim milk, you will need to go through the

18 magnetometer and x-ray machine again.

19 In the unlikely event of a fire or evacuation,

20 please leave the building in an orderly fashion. We

21 would proceed across New Jersey Avenue to the sidewalk

22 area to the left of Georgetown Law Center, and if an

23 emergency makes it unsafe to go outside, you will be

24 told where to go inside the building.

25 In the case of suspicious activity, if you spot
4

1 it, please notify security, and that does not include

2 smuggling in a flask of sugary soda.

3 Restrooms are through the FTC lobby, follow the

4 signs or ask our security personnel for directions.

5 Cell phones, please be aware that the

6 microphones are on all day, although apparently not very

7 loud, so just make sure to preserve your privacy as best

8 as possible, make calls in the lobby area or outside.

9 Actually, now would be a good time to either turn off

10 your cell phones or put them on vibrate.

11 For two of the panels today, the agenda calls

12 for question and answers or comments from the audience.

13 The staff will be walking up and down the aisles with

14 portable microphones for that purpose. For people who

15 are participating by the webcast, you can send your

16 questions or comments by email to

17 childhoodobesity@ftc.gov, and in case you didn't get

18 that, that email address will be posted on one of the

19 PowerPoint slides at the appropriate time. There should

20 be some literature on the back tables in the outside

21 lobby, for people who wanted to bring literature, it's

22 there.

23 That's it as far as the housekeeping matters and

24 it's my great honor to introduce the chairman of the

25 Federal Trade Commission, John Leibowitz.
5

1 (Applause.)

2 CHAIRMAN LEIBOWITZ: Thank you so much. Good

3 morning. What a thrill it is to see this kind of

4 turn-out, as some of you may know, because I see you as

5 sort of repeat offenders in the audience. This is our

6 ninth, I think, day of workshops in the last three weeks

7 and they have ranged from things like the future of news

8 journalism to debt collection to merger guidelines and

9 we're especially delighted to be able to welcome HHS

10 Secretary Kathleen Sebelius as our keynote speaker, who

11 is seated over here. If you could all give her a round

12 of applause. We're not introducing you yet.

13 (Applause.)

14 CHAIRMAN LEIBOWITZ: Today, of course, we are

15 going to discuss one of the most serious threats to the

16 well-being of our children, and that's childhood

17 obesity. As all of you know, childhood obesity is more

18 than a social stigma, it has been an epidemic of

19 alarming proportions. Obesity rates among children six

20 to 11 have doubled since 1980, and since that time, they

21 have more than tripled for teens 12 to 19. About one in

22 five young people is now obese, a condition that puts

23 those children or those teens at risk for heart disease,

24 diabetes, osteoarthritis, and cancer. Indeed,

25 physicians no longer use the term "adult onset diabetes"
6

1 anymore, because so many children are getting it. They

2 now call it Type 2 diabetes.

3 This epidemic is affecting not only the quality

4 of our children's lives, but also their life span.

5 Sadly, this may be the first generation of American

6 children with a shorter life expectancy than their

7 parents.

8 Now, as many of you know, it's been more than

9 four years since we held our first conference on food

10 marketing and childhood obesity. The immediate response

11 of the food and beverage industry to that workshop in

12 2005 was heartening. Several companies pledged to make

13 changes to what and how they advertise to children.

14 Others have followed since. We've seen, I think, some

15 successes.

16 Soda consumption in our schools is down.

17 President Clinton's Alliance For a Healthier Generation

18 reports that calories from beverages shipped to schools

19 has dropped about 41 percent. As an LA Times story this

20 morning noted, Kraft has actually stopped advertising

21 Chips Ahoy and Oreos, although I still saw my daughter

22 sneaking a few Oreos last night at around 10:30. That's

23 another story. That was a joke, it was a bad joke, but

24 I guess it's early in the morning.

25 These changes, as we all know, have, however,
7

1 come in small increments. Obesity rates and

2 obesity-related problems continue to grow, and we really

3 have to do better.

4 Today we are calling on the food industry to

5 tackle this threat and boldly re-invent the food

6 marketplace. Whether or not you are part of the

7 problem, you need to be part of the solution. Put

8 simply, it is time for industry to supersize it's

9 efforts.

10 Now, we had all hoped that the progress thus far

11 had been more substantial and apparent. Instead, the

12 Rudd Center at Yale University reported this fall that

13 cereals marketed to children contain 85 percent more

14 sugar, 65 percent less fiber and 60 percent more sodium

15 than adult cereals. These numbers, of course, put

16 bluntly, are very disturbing, and hopefully General

17 Mills won't be the only company to respond, as they did

18 last week by cutting the sugar content of many of their

19 kids brands.

20 Children's diets are still far from balanced.

21 Potato chips and french fries account for more than half

22 of all vegetables consumed by children, and despite the

23 progress made in schools, the majority of teens are

24 drinking the equivalent of 39 pounds of sugar each year

25 from soda and other sugar-sweetened beverages. Just
8

1 think of it.

2 We all realize that marketing is just one of the

3 many influences on children's diets, and as a parent, I

4 can appreciate that getting children to eat better is no

5 easy task. That's why we really need the industry's

6 help.

7 As you know, the FTC looked at the children's

8 food marketplace in 2006, just as industry, under the

9 auspices of the Better Business Bureau, was beginning to

10 take its first self-regulatory steps, and I see Lee

11 Peeler in the audience, who was instrumental, and maybe

12 Elaine Kolish, in making that happening, so thank you.

13 Our comprehensive report on food marketing, a

14 review of industry expenditures, set the benchmark for

15 measuring industry's efforts. Our report also included

16 a number of specific recommendations to address

17 shortcomings in these efforts. Four in particular help

18 frame our discussions today. First, the FTC called on

19 all food and beverage companies to adhere to meaningful

20 nutrition-based standards for foods marketed to

21 children. To their credit, 16 have already signed CBBB

22 pledges. Others have taken action on their own, but

23 many companies that market heavily to children and teens

24 have yet to join or make their own commitments.

25 Why, for instance, hasn't Yum! Brands, with its
9

1 KFC, Taco Bell and Pizza Hut chains, stepped up, or

2 Chuck E. Cheese or IHOP, or the marketers of Airheads or

3 Baby Bottle Pops.

4 Second, companies must change the nutrition

5 loopholes, and we all know there are strategic ones that

6 allow foods of questionable nutritional value to be

7 marketed to children simply because they have somewhat

8 less sugar, fat or salt than prior versions. Are

9 slightly lower fat potato chips or slightly less sugary

10 cookies really the foods we should be encouraging our

11 children to eat? Every food marketer should play by the

12 same set of rules. Otherwise those who lead may suffer

13 harm from those who game the system to their competitive

14 advantage. We need some self-regulatory

15 standardization.

16 Third, these pledges should cover all forms of

17 marketing to children. Not just traditional

18 advertising, but also product packaging, in-store

19 promotions, virtual marketing, and other techniques that

20 are heavily used to reach children. If you are willing

21 to limit your advertising, why not limit packaging,

22 promotions, and other marketing in the same way?

23 Fourth, it's time for the entertainment industry

24 to play a constructive role. It needs to filter the

25 foods that are advertised on children's programming,
10

1 particularly on children's cable networks. At a Senate

2 appropriations hearing last fall, and I was testifying

3 at that hearing, Nickelodeon made this commitment to

4 Senator Tom Harkin, and I quote, "Sir, if uniform

5 standards are adopted, and they apply to all the

6 industries we deal with, absolutely we will use them as

7 a filter for all of our marketing and advertising

8 relationships."

9 As you're going to hear this afternoon, we will

10 have such a uniform framework in place, we expect, by

11 this summer. We expect Viacom to honor its commitment

12 and others to follow their lead.

13 We're also conducting a follow-up to our first

14 study. We're going to examine whether the food and

15 media industries have acted on our recommendations. We

16 will soon be sending out 44 subpoenas to the largest

17 food marketing companies to collect marketing data for

18 2009, when the pledges began to be implemented. We'll

19 also assess whether the nutritional quality of

20 children's foods have improved since 2006.

21 We continue to believe that the food industry

22 and children's media are trying to affect positive

23 change. Based on their response to date, we are hopeful

24 that self-regulation can work, and that your efforts

25 won't be falling short, but we can't simply congratulate
11

1 ourselves. Companies can't simply congratulate

2 themselves for meeting their prejudices and be done with

3 it. We need to be sure that the pledges are adequate to

4 drive real changes in the marketplace and especially in

5 children's diets.

6 Now, the FTC is very sensitive to the First

7 Amendment principles that govern here. It has been one

8 of the reasons we continue to encourage an

9 industry-driven approach, but the stakes, really, they

10 can't be higher. If action doesn't come from the

11 private sector, there are many who will call for

12 Congress to act, and there are many in Congress who will

13 want to do so.

14 As almost everyone here today knows, the cost of

15 inaction on our children's health, not to mention the

16 economic costs of obesity, are significant. A report

17 this year estimated that almost 10 percent of all

18 medical spending is due to obesity, and if these trends

19 continue, and I think we all hope that they will not, by

20 the year 2018, that figure will rise to 21 percent.

21 The public opinion on childhood obesity and

22 about the role of government should play has also

23 shifted. For the first time, but my guess is not the

24 last, an annual pole of parents' top ten health concerns

25 ranked childhood obesity as number one. Ahead of
12

1 smoking, ahead of drug abuse.

2 Perhaps the strongest indicator of the shift in

3 public sentiment comes from Congress, which is now

4 calling on the FTC and other agencies to take a more

5 active role, both in tracking industry progress and in

6 developing nutrition standards for children's food

7 marketing. From the President, who has called childhood

8 obesity, and I quote, "A growing epidemic." Let's all

9 keep this in mind, this new landscape as we go a forward

10 on this issue and I hope we go forward collectively.

11 So, we are going to start the morning with a

12 look at new research on food marketing to children. We

13 know that marketing to children is more integrated and

14 immersive than ever before. Children who used to spend

15 30 seconds watching a TV ad for their favorite cereal

16 are now spending much, much longer on branded online

17 game sites.

18 The Rudd Center, which is a treasure trove of

19 information in this area, reports that every month on

20 average, 767,000 young people each spend a total of 66

21 minutes engaged in General Mills' millsbury.com alone,

22 and while online, avatars in these virtual worlds are

23 quenching their virtual thirst with virtual cans of

24 soda. One virtual brand sold 110,000 virtual cans of

25 pop last year on a single site. So we look forward
13

1 really of learning the impact of what all this marketing

2 is, other than having an increase, of course, in virtual

3 weight.

4 I'm only as good as my material. But I wrote

5 that myself, so you can blame me, not my staff.

6 Next, we'll have what promises to be both a

7 scholarly and lively discussion of the First Amendment

8 ramifications of restricting advertising to children,

9 hosted by David Vladeck, the Bureau of Consumer

10 Protection director and resident expert on commercial

11 speech.

12 In the afternoon, we hope to have a constructive

13 dialogue about the progress that the food and

14 entertainment industry has made in reshaping the

15 marketplace and in improving the nutritional profiles of

16 food directed to children. Finally, we will be

17 previewing the much anticipated nutritional standards

18 being developed at Congress' behest by the Interagency

19 Working Group on Food Marketed to Children, unofficially

20 known by the acronym SNAC PAC, although when I try to

21 work on the acronym, it comes out more like [IWGFMC].

22 We are going to open up the last panel for a

23 town hall discussion, and we hope to hear very candid

24 feedback, I'm sure we will, as the group works towards

25 its July 2010 deadline on a report for Congress.
14

1 We have a packed agenda, so let's get started.

2 It's now my absolute delight and great honor to

3 welcome the Secretary of Health and Human Services,

4 Kathleen Sebelius, as our keynote speaker. Secretary

5 Sebelius is in charge of one of the largest Federal

6 Government departments, overseeing 80,000 employees and

7 a myriad of agencies, including the Food & Drug

8 Administration, the Centers for Disease Control and

9 Prevention and the National Institutes of Health. She

10 is the lead cabinet official on comprehensive health

11 care reform, and we know she's going to be having a busy

12 day and a busy week and shoulders the burden of

13 responding to the H1N1 epidemic and doing so as well as

14 anyone could ask for.

15 Despite these and many other responsibilities,

16 she has managed to the put the weight of her office

17 behind the battle of childhood obesity, and we've been

18 fortunate to work extensively with Secretary Sebelius

19 and her staff on many, many issues. For example,

20 fighting against collusive pay for delayed

21 pharmaceutical settlements where the brand name

22 pharmaceutical company pays its generic competitors to

23 stay out of the market, and once health care legislation

24 passes, and I am confident it will, we are going to work

25 with HHS to provide critical disclosures to consumers so
15

1 they can better compare competing health care plans.

2 We are pleased to continue a partnership that

3 our two agencies really formed in 2005 at our first

4 joint workshop on childhood obesity. We know that you

5 care deeply about this subject, Madam Secretary, and

6 under your leadership, HHS has worked with local school

7 districts to find out how they're getting kids to eat

8 healthier and be more active and you are spreading the

9 word almost better than anyone can about the successful

10 programs and the best practices. We're proud to be

11 working alongside you to combat the scourge of childhood

12 obesity, and with that, I will turn it over to secretary

13 of HHS Kathleen Sebelius.

14 (Applause.)

15 SECRETARY SEBELIUS: Well, good morning, and

16 thank you so much, Chairman Leibowitz, for that nice

17 introduction. John has been a great advocate for

18 consumers for lots of years, whether it's helping get

19 affordable prescription medicines or protecting personal

20 information or fighting predatory loans. So, I'm really

21 delighted to have him as a partner on some of these

22 incredibly important health issues and look forward to

23 working with him.

24 I want to also, at the outset of my comments,

25 acknowledge a couple of key members of the HHS
16

1 leadership team, two of whom you're going to hear from

2 later today, Dr. Barbara Schneeman, from the Food & Drug

3 Administration, and Dr. Bill Dietz, from the Centers for

4 Disease Control and Prevention, and also Dr. Dora Hughes

5 is with me this morning, and she's the counselor in our

6 office who works on a myriad of issues, but particularly

7 the kind of public health agenda and the FDA agenda is

8 in her bailiwick.

9 Dr. Schneeman and Dr. Dietz are representing our

10 department on the Interagency Working Group that the

11 chairman has already referred to, and they will have

12 some exciting updates for you later today. So, stick

13 around for their session.

14 Finally, I just want to thank all of you for

15 being here today. There's a wide range of folks in this

16 room representing, I think, the wide range of interests

17 who have been working collaboratively on this issue,

18 from scientists to industry leaders to consumer

19 advocates, and that's encouraging, because childhood

20 obesity is an area that, while we've understood the

21 health risks for quite some time, we really haven't

22 acted on what we know in a very effective fashion, and I

23 think the alarm bells need to sound, and we need to

24 really step up our action plans.

25 We know where good ideas are, and we're looking
17

1 forward to working with you so we can really create a

2 healthier future for all the children of America.

3 As the chairman said, we know that one in five

4 American children are obese. More alarmingly, one in

5 three American children are overweight or obese. So,

6 we're talking about a third of the kids in this country

7 who are really more and more out of step in terms of

8 their health prospects.

9 Being overweight, as a kid, is now, we well

10 know, associated with a wide range of problems, from

11 high blood pressure to asthma to diabetes to depression.

12 It's also directly the biggest link that will give a

13 clue to whether or not that child will be overweight or

14 obese as an adult. What happens during their childhood

15 years. Adult obesity, again, is the underlying health

16 risk for a host of diseases, heart disease, stroke,

17 various kinds of cancers, it's the single biggest

18 predictor of diabetes, and there's a huge cost with all

19 of those illnesses to our economy.

20 Chronic diseases account for 75 percent of our

21 health care dollars. Seventy-five cents of every dollar

22 we spend on health care is spent on underlying chronic

23 diseases, and it explains why the CDC estimates that

24 obesity costs our health care system $150 billion a

25 year, nearly twice what it was in 1998. So, in the last
18

1 ten years, we've actually doubled the health costs

2 associated with just that one disease.

3 To put that in perspective, the American Cancer

4 Society has totaled the health care expenditures in

5 America on all cancers combined, all populations, all

6 cancers, and it's about $100 billion a year. So,

7 diabetes is now 50 percent more than all the cancers put

8 together. That creates an enormous financial challenge,

9 but there's another piece of it. This trend is getting

10 worse, and not better. The share of our kids who are

11 overweight is four times as high as it was 40 years ago.

12 Just to give you an anecdotal example, I'm going

13 to highlight, again, what the chairman has already said,

14 that no longer is the term "adult onset diabetes" even

15 used in the medical community, there are just way too

16 many kids, kids as young as eight and nine presenting

17 with Type 2 diabetes. So, it no longer is a terminology

18 that's even recognized.

19 Now, think about a different scenario. Think

20 about one in three children in America being exposed to

21 radiation, which we knew would cause serious cancers in

22 the long-term, and we knew that more and more kids in

23 every community in America were being exposed to that

24 radiation day in and day out. I think alarm bells would

25 be going off across America. There would be a huge
19

1 outcry and a demand that something be done immediately.

2 Unfortunately, we're dealing with a situation

3 where sometimes the health impact doesn't present itself

4 for ten or 15 or 20 years. So, it's a slow walk to a

5 very dismal future. But we need to insert some urgency

6 in this discussion.

7 The fact that many of the effects of childhood

8 obesity don't show up for a while doesn't make them any

9 less damaging. Americans are getting sick and paying

10 higher medical bills, and in some cases, dying, because

11 we didn't do enough to help them stay healthy when they

12 were young, and that's simply unacceptable.

13 Now, the President is very interested and

14 engaged in this issue, and we have had a number of

15 discussions about it. The first lady has clearly made

16 childhood obesity and nutrition issues one of her

17 signature projects that she is taking on, and in

18 addition to prevention and wellness education, she's now

19 the most famous vegetable gardener in the world, and I

20 think those steps lead up to what she hopes will be a

21 major action initiative, give some example of the power

22 of her bully pulpit, and she intends to use it.

23 So, the Administration is very much engaged and

24 feels the urgency of this issue. One of the most

25 significant steps taken so far is the $650 million in
20

1 the Recovery Act that will be targeted toward community

2 efforts on obesity and smoking cessation. It's the

3 single biggest investment in wellness and prevention

4 ever in the history of the United States, and will give

5 us an opportunity to really, particularly in the area of

6 obesity, do some projects with some measurements to see

7 what works, and in urban areas and rural areas, in

8 tribal nations and in communities, we want to have

9 on-the-ground projects to really see what actually moves

10 the dial, what has an impact on Americans.

11 From a narrow perspective, it's easy to see why

12 weight comes up and down. The number of calories in and

13 the number of calories burned creates that balance about

14 what you weigh, but what we've learned is that there are

15 lots of other variables in addition to what goes into

16 your body and what you use in your body.

17 Whether or not you get healthy meals at school

18 has a big impact. Whether there are supermarkets that

19 sell fresh fruit and produce that are easily accessible.

20 Whether it's actually safe or secure in a neighborhood

21 for kids to go out and play. There's a lot of

22 conversation about parents turning off the television

23 and sending your children outside. That's a great idea,

24 except if outside is much more dangerous than inside,

25 which in some cases, it is.
21

1 What happens in gym class, in schools? Do kids

2 get to run around, or do three-fourths of the kids stand

3 against the side watching some of the kids run around,

4 or do they wait for one or two pieces of equipment and

5 basically spend the entire class sedentary or does the

6 class even exist anymore. In many schools in this

7 country, that has been one of the products of moving to

8 a more intensive testing regime that physical education

9 has really disappeared in classrooms across America.

10 The answers to those questions really matter.

11 It turns out that what we eat is only a part of how we

12 decide what we eat. Cost and convenience are equally

13 important. You may not want a chocolate bar to eat, but

14 if you've only got a dollar and if you've got a vending

15 machine that's full of various kinds of fatty snacks and

16 chocolate bars cost a dollar, it may be what you choose

17 to eat.

18 So, we have to look at all the strategies that

19 involve healthy food and nutrition. Recognizing that

20 all those factors matter, most of the $650 million is

21 going to go to local communities and various kinds of

22 projects to strengthen a variety of opportunities for

23 health and wellness and nutrition, but also give us some

24 opportunity to measure results and learn about what

25 really works.
22

1 Now, a lot of factors involving obesity have to

2 do with kinds of foods available to Americans, but we

3 know that there's another category of influences about

4 what we eat, and that is advertising. So, today, I want

5 to talk about two kinds of advertising in particular:

6 What's on television that is targeted at kids, and that

7 would include the video game market and other kinds of

8 media marketing; and what's at the front of packages, so

9 when you go into the grocery store, what kind of

10 advertising hits you in the face?

11 Those are the labels targeted at parents. So,

12 we've got something coming at kids, and we've got

13 additional messages coming at parents. There is

14 something disturbing that I read recently. Market

15 research, which surveyed kids to find out their top ten

16 most beloved brands, what are children paying attention

17 to? Not surprising, one favorite was Disney, another

18 two were two of the most popular video game systems, but

19 the remaining seven were some of the most unhealthy

20 foods in the market, from Cheetos to Doritos. Those

21 came up as the things kids love the best in terms of

22 brands.

23 Of course, you think, kids love junk food. I

24 know my kids love junk food. But in the context of the

25 huge health consequences of childhood obesity, it is
23

1 pretty disturbing how rapidly children can identify the

2 products and the brands out there. It's not a surprise.

3 The companies making these products spend a lot of money

4 branding them for children. The reason that they spend

5 $1.6 billion a year, according to the FTC's survey, more

6 than the gross domestic product of Belize, marketing

7 food to children is because it works, and clearly the

8 survey indicates that it works pretty well.

9 The research is pretty clear. Our children

10 spend more than five and a half hours a day using

11 various media. For almost all of those hours, they are

12 subject to advertising. So, there's a lot of messaging

13 in and out. Almost as much time as they spend at

14 school, they spend in front of various kinds of

15 computers or television screens.

16 If you're watching a children's television

17 network, according to a recent survey, you'll see a food

18 ad every eight minutes. So, that is a lot of time over

19 a five-and-a-half-hour period of time. These aren't ads

20 for All Bran or Fiber One. In fact, one group of

21 researchers studied this and found that compared to

22 cereals marketed to adults, cereals advertised to kids

23 have 85 percent more sugar, 65 percent less fiber and 60

24 percent more sodium, all ingredients that lead to weight

25 gain and obesity. They've also looked at the top ten
24

1 most unhealthy cereals that were advertised, and the top

2 ten cereals that were advertised to kids, eight of the

3 ten are the same.

4 So, again, marketing really pays off with

5 children.

6 With new ways to reach kids emerging, like

7 websites and games that can be given even more effective

8 and harder for parents to monitor, now is absolutely the

9 time to act. Our Interagency Working Group has been

10 working hard to develop recommendations for national

11 standards and nutritional standards we use to decide

12 which ads should be shown to kids.

13 Later today, you will hear about the first draft

14 of those recommendations. But no matter what standards

15 we create, we're not going to stop kids from loving

16 Cheetos. In fact, I love Cheetos, and my 88-year-old

17 father loves Cheetos, so it's a multigenerational

18 addiction in my family. The good news about Cheetos is

19 you can see orange hands, that's how I actually figure

20 out they had Cheetos. The hands give it away.

21 But if a child gets diabetes when he's 18,

22 partly because he, when he was younger, he only ate the

23 foods he saw every day on TV, and the Internet, it's not

24 his fault. It's our fault.

25 So, we need to start doing a better job
25

1 regulating the types of ads that our kids see and

2 working with parents and teachers and others to spread

3 the word. That's what these new standards will do, and

4 we welcome input from all of you as we try to get them

5 right.

6 Now, the other piece of advertising that I want

7 to talk about for a few minutes today is food labeling.

8 Another HHS initiative that we're launching around

9 obesity and marketing has to do with food labeling. The

10 nutritional messages targeted at parents, specifically

11 the front of the package labeling.

12 Now, you've all seen recently what's happening

13 on boxes. Green checkmark and number ratings, stars,

14 smiley faces, hearts, a handful of other icons that you

15 see as you walk up and down the aisles of the

16 supermarket. The labels are popular. People are really

17 looking for some kind of information to do what's good

18 for their kids to make some healthy choices.

19 Now, when I was a mom of younger children, we

20 didn't even have the nutrition facts on the back of the

21 boxes, you were really kind of on your own to figure out

22 what was good or bad, but even if those labels on the

23 back had been there, I, frankly, didn't have time when I

24 was shopping, usually with a kid in the supermarket

25 cart, to pull out every box of cereal and go to the back
26

1 and try to read what is a pretty difficult to read bar

2 code on the back of the box.

3 So, we need an easier way to get nutrition facts

4 out to people.

5 Icons are helpful. Everybody knows the Siskal &

6 Ebert two thumbs up for movies. They did it because it

7 works. It labels things in an easier way. It's why

8 Consumer Reports has editor picks.

9 Now, we don't think front-of-box labels should

10 replace nutrition facts, but we do think they're

11 potentially a useful way for busy shoppers to try and

12 make sure that their families are getting healthy foods.

13 I say it's potentially a good way, because the

14 labels are only as helpful as the information they

15 convey, and in that area, the record has been pretty

16 mixed. Right now, there are way too many labels, so

17 consumers have a hard time knowing what each one means,

18 and what makes it even harder is that different

19 manufacturers have used different criteria to decide

20 which products offer the most nutrition. We saw recent

21 examples of that when front-of-package labels on

22 nutritional food included endorsed products like Froot

23 Loops and mayonnaise as healthy choices.

24 Now, that label may have been technically

25 accurate, according to some criteria, but the bar was
27

1 set pretty low when those kinds of products are actually

2 labeled as nutritious. So, our new commissioner from

3 the Food and Drug Administration, after seeing the gap

4 for the potential of the labels and what is being done

5 right now, the FDA decided to launch a plan to create

6 some basic scientifically valid rules that could help

7 the labels actually work for consumers, and meet a

8 higher standard.

9 The first step was to write to the food

10 industry, explaining what we were doing, and calling on

11 them to work with us, to take more responsibility for

12 nutritional information that they were providing to

13 consumers, and we got some immediate good results. Not

14 only was the Smart Choices Program suspended, but just a

15 few days ago General Mills announced it was going to

16 reduce the amount of sugar, voluntarily, it adds to

17 cereals marketed to kids.

18 These are the kinds of positive changes we saw

19 when we introduced the nutrition facts label in 1994,

20 and by the way, that label is being updated, too. It's

21 way out of date. It doesn't even include a sodium

22 content. So, efforts are under way, not only to address

23 the front of package, but also to look at the back

24 nutrition facts labeling. It's why we believe that

25 credible, standardized and easy-to-understand labeling
28

1 cannot only help consumers make healthier choices, but

2 put pressure on producers to make healthier products,

3 and do it simultaneously.

4 I think all the conversations I've had with

5 executives in the food industry understandably indicate

6 that we don't want to be economically punished if all of

7 our competitors are still clinging to an old system and

8 we're trying to do the right thing, only to lose a huge

9 amount of market share.

10 So, whatever we do has to be done across the

11 board and have some uniformity, again, which is why

12 having some standards that are measurable across

13 producers makes good sense. We want to take three

14 additional steps to make front-of-package labels work

15 better for consumers. First, the FDA is in the process

16 of identifying and analyzing front-of-package labels,

17 not only here, but around the world, that are helpful,

18 and we're going to take a look at what works and try to

19 come up with a strategy and seek your input along the

20 way.

21 We're analyzing the labels that appear to be

22 misleading, and considering appropriate enforcement

23 action, which the FDA currently holds. We want to

24 produce a rule that will create consistent criteria for

25 food labels. Right now, it's up to manufacturers to
29

1 individually decide what criteria to use to rate the

2 nutritional value of their own foods. Having one set of

3 science-based criteria, we think, will help consumers

4 get good information. At the same time, allowing

5 manufacturers to highlight their healthy food qualities.

6 Third, we're going to be conducting a wide array

7 of consumer research to see what kinds of

8 front-of-package voluntary government-approved system

9 would be the most effective for retailers and

10 manufacturers to use. The advantage of this approach is

11 that it could serve as a universal system that consumers

12 could count on regardless of what manufacturer or what

13 retailer used it.

14 No companies would be required to use these

15 symbols, but they give healthy producers an advantage.

16 It might prompt less-healthy producers to reduce their

17 sodium and calories to get that kind of label on their

18 packages, which is exactly the kind of health

19 competition we would like to spur in the marketplace.

20 So, we are moving in all of these areas, and

21 again, look forward to a collaborative dialogue as we

22 move forward. We will be hearing more about the

23 progress we are making from FDA Commissioner Peggy

24 Hamburg some time in the very near future.

25 When we talk about childhood obesity, the
30

1 challenge can seem pretty overwhelming. The trend is

2 not good, the platform that we start from is not good,

3 and we need to do something pretty dramatic.

4 Unfortunately, the epidemic is widespread, there are

5 many, many reinforcing factors, the health risks are

6 enormous, and the costs to our health system are so

7 high, but the flip side of the challenges that we face

8 tackling this problem is the opportunity that we have in

9 reducing childhood obesity. If we can bring these

10 numbers down even a little bit, there are huge cost

11 benefits for our health care system, there are huge cost

12 benefits for the health of our nation, and I would argue

13 for the prosperity of our nation. We are looking at a

14 workforce, as the chairman said, who not only might have

15 shorter life span than their parents, but who clearly

16 will spend a lot of those lives with an unproductive

17 work history, absenteeism, missing jobs, not able to

18 secure the jobs, which will make our country as a whole

19 significantly less competitive in a global marketplace.

20 Now, it won't be easy, but we can start by not

21 overwhelming kids with ads for unhealthy foods, and

22 making it easier for parents to figure out which foods

23 really are healthy.

24 So, I am looking forward to working with all of

25 you to certainly continue our collaborative effort with
31

1 the Federal Trade Commission. This is a very

2 interagency effort. The Department of Agriculture is

3 very much at the table. The Department of Education is

4 very much at the table. So, as we look at everything

5 from school lunches to food deserts in communities, we

6 are looking at these strategies in a collaborative

7 fashion, and led by the President and the First Lady, I

8 think we can have a very successful initiative for the

9 health of our children.

10 Thank you all very much.

11 (Applause.)

12 MR. FENTONMILLER: Thank you, Secretary

13 Sebelius.

14 Okay, we're going to set up now for our first

15 panel of the day, New Research on Food Marketing to

16 Children, and as we set up, I will turn it over to David

17 Britt, the moderator.

18 MR. BRITT: I'm having senior onset

19 technophobia. Good morning, everyone. I am going to

20 try to set a context for the research that we are going

21 to be dealing with this morning. To do so, I will start

22 not by introducing our panel, which we will introduce as

23 we go along and whose biographies are in your materials

24 here, which I hope at some point you have a chance to

25 read. We have a lot of stuff to cover in this
32

1 particular session, so it's going to be a natural

2 experiment in self-regulation. I'll see where it ends.

3 As I said, my goal is to provide a brief context

4 for our presentations and our discussions. Food and

5 beverage marketing to children and youth has been

6 actually transformed, I think, in the last five years.

7 Research, and the policy development it informs, is

8 rising now to meet a very wide range of new challenges.

9 Some data points, some of which you've heard

10 already, so I won't go through them again. Let me add a

11 slightly different take on the one that Secretary

12 Sebelius mentioned, which is that a recent estimate of

13 obesity-related costs, the number she talked about in

14 terms of diabetes expanded to the rest of

15 obesity-related diseases comes to about nine percent of

16 the total U.S. health care cost today. She indicated

17 that's twice what it was ten years ago, and this

18 estimate suggests that ten years from now, it will

19 double again to 20 percent. So, we are looking at

20 upwards of $340, $350 billion in today's terms.

21 This dollar estimate doesn't reflect, not only

22 the work force costs, but also the quality of life costs

23 for literally millions and millions of young people.

24 Soon to be older people.

25 The IOM committee brought together relevant data
33

1 and analyzed some 30 years of peer-reviewed research

2 around the issue of food marketing in children and

3 youth. Its findings of causation were rigorously and

4 very, very conservatively determined based on systematic

5 evidence review.

6 The report called for an integrated, sustained

7 program of action by all the relevant players. Because

8 obesity is a public health issue and priority of first

9 order, the committee recommended progress in the

10 necessary course corrections in two years, which would

11 have been 2008.

12 Today, we are seeing a real renaissance, in

13 fact, in the area of research, some of which you are

14 going to hear about this morning, and some of which is

15 going on all over the country in places such as the

16 Healthy Eating Research Center at the University of

17 Minnesota directed by Mary Story and run by Robert Wood

18 Johnson. Government and education at all levels is now

19 focusing on this issue.

20 What Secretary Sebelius talked about today of

21 different agencies with different agendas and

22 long-standing jurisdictional, shall we say, values, are

23 really working together for the first time in a long

24 time, and at state and local levels as well, to begin to

25 tackle this problem. One of the most important was the
34

1 last year's release of the FTC study, which is going to

2 be repeated again.

3 But the fact remains that overall, there isn't

4 yet the integrated effort necessary to make the progress

5 we need to change the trajectory of childhood obesity.

6 Instead, what we've seen is acceleration and integration

7 of the variety and intensity of the food marketing of

8 children, targeting children and youth, to an

9 unprecedented level.

10 Current research is documenting the current

11 reality, and that is that food marketing to young

12 people, both traditional and digital, still works. The

13 great preponderance of marketing still promotes foods

14 that are high in calories, fat, sugar and/or sodium.

15 Self-regulation schemes, well intentioned, don't cover

16 many important industry players and marketers, don't

17 cover many critical venues, and are, as the Secretary

18 pointed out, quite idiosyncratic in terms of individual

19 company-by-company definitions of what is nutritionally

20 permitted.

21 Finally, digital marketing is accelerating an

22 additive to traditional marketing. Research is telling

23 us, in fact, that marketing is working harder than ever.

24 It has become food and beverage marketing 2.1. It

25 includes all of marketing we've known for the last 35
35

1 years around TV ads, and they remain important and

2 critical because they sell product, and because they

3 allow companies to keep their brand recognition high,

4 and competitively fight for mind share for brands so

5 that kids know enough to make Cheetos the brand they

6 remember the most in the world. It takes this

7 traditional ad frame, television ad frame, and blends it

8 with a variety of digital techniques, marketing brands,

9 brands and product avatars, to targeted audiences to

10 extend and deepen the individual engagement that they

11 have with young consumers.

12 All of these subjects are going to be dealt with

13 in terms of studies that have been conducted by our

14 panelists this morning, so you will hear more about

15 what's really going on from people who actually have

16 figured out what's really going on.

17 Food marketing 2.1 integrates TV and digitally

18 marketed products and brands, as we all know very well.

19 For researchers and policy-makers, marketing 2.1 brings

20 new and different challenges, such as the need to

21 monitor exposure, times of engagement, awareness of

22 marketing efforts, not simply the dollars spent on the

23 marketing issues.

24 We need to have more attention on analysis of

25 marketing, in terms of its impact on specific subgroups,
36

1 ethnic minorities, adolescents, the already overweight,

2 who may be particularly vulnerable to marketing messages

3 around foods that are high in sugar and sodium and fat.

4 We need to focus on performance, in terms of

5 reducing marketing exposure to food high in calories and

6 sugar and fat and increasing marketing exposure, the

7 other side of that coin, increasing exposure of

8 marketing of foods that are healthy and lead to a

9 healthier diet.

10 Neural marketing, this is kind of the new buzz

11 word in the world of marketing. What's new about neural

12 marketing, because after all, all marketing

13 traditionally has, in fact, turned play on emotions to

14 sell products, is the use of the measurements of

15 activity in different brain centers and other related

16 measures to shape, evaluate and quickly adapt the impact

17 of marketing messages so that they can be more effective

18 and that they can be dropped when they are no longer

19 effective.

20 As one marketing consultant touts it, your

21 messages or materials will be absorbed directly into the

22 consumer's subconscious where we can measure their

23 effectiveness, devoid of outside contaminating factors,

24 like education, language, ethnicity, cultural or other

25 factors. You can't make this stuff up, actually.
37

1 (Laughter.)

2 MR. BRITT: It's now reported that some 90 firms

3 are selling neural and related emotions-based research

4 techniques to marketers, and we don't want to overstate

5 some of this stuff. Remember, these folks are

6 presumably attempting to excite the emotional centers of

7 marketers and food companies, and sometimes when you

8 read it, it looks a little bit like the little machine

9 with the red lights that flash on and off, and nobody is

10 quite sure exactly what it may mean.

11 Nevertheless, it is being used, it is being

12 bought, and it is being used to the point where it is no

13 longer experimental or being something that people are

14 trying out. It is now mainstream marketing. So,

15 whether they're right or not, they believe it's right.

16 It is being retrofitted, the results are being

17 retrofitted to traditional television advertising and

18 other kinds of product placement and all of the usual

19 stuff.

20 In terms of the emerging research challenges of

21 neural marketing, I think it's quite clear that there is

22 broad consensus on the very first two points of this

23 particular screen. There are fewer neuroscientific

24 studies that have focused on food marketing per se, but

25 there already is good evidence supporting the second two
38

1 points as well. Neuroscience is developing rapidly and

2 has learned much already about the development and

3 functioning of a variety of brain centers that relate to

4 cognition and emotions and how they work together to

5 help frame behavioral choices.

6 More work is under way, and more is needed, and

7 interactions among transdisciplinary teams of

8 researchers are needed to understand how adolescent

9 development in particular responds to marketing, as well

10 as other important issues that confront youth.

11 I think it's clear that any earlier assumptions

12 we may have had that there is some bright point in

13 cognitive development before adolescence, after which

14 young people are sufficiently armed to defend themselves

15 against marketing, is simply wrong. The future has

16 become reality, and we now know that.

17 I think the research is also clear that even

18 cognitive understanding of marketing and its intent is

19 more difficult and complex in a digital marketing

20 environment that includes advergames, product placement,

21 pure participation, a whole variety of techniques which

22 Kathryn is going to talk about later that blur and

23 change the landscape for young children, as well as

24 older children.

25 Each of these issues, remarkably, is a whole new
39

1 set of research challenges, added to the research

2 challenges that we've already talked about, such as the

3 impact of marketing on adolescents. Each will require

4 forging new partnerships, among disciplines. Each will

5 require accessing adequate research funds and making

6 research accessible to policymakers and to the public,

7 all at a pace that is six to ten times faster than the

8 pace of change in marketing as we've known it for the

9 last 35 years.

10 Let me finish my part by saying that food and

11 beverage marketing 2.1 represents a quantitative as well

12 as a qualitative leap in marketing reach, speed, weight

13 and intensity. Research to inform and evaluate policy

14 in an effective performance-based regulatory

15 environment, including self-regulation, has to be

16 similarly comprehensive, integrated, quick and adaptive.

17 Nothing less will be adequate to change the current

18 trajectory of obesity.

19 So, I hope that with that frame we can now get

20 down and look at some of the real scientific work going

21 on, and for that, I want to turn to our first -- I'm

22 sorry?

23 (Applause.)

24 MR. BRITT: Do you have any idea what it cost me

25 to get him to do that?
40

1 (Laughter.)

2 MR. BRITT: I want to introduce our first

3 panelist, Jennifer Harris, from the Rudd Center at Yale

4 University, down the street from where I live in the

5 summer, and Jennifer, as you can see from her biography,

6 is not only a skilled researcher, but she has actually

7 worked on the dark side, as some of you like to call it,

8 for years and years, so she knows what of which she

9 speaks.

10 Jennifer?

11 DR. HARRIS: Good morning, everyone.

12 As David mentioned, the Institute of Medicine

13 report on children and food marketing highlighted the

14 need for more research on how food marketing affects the

15 diet and diet-related health of young people. That was

16 the reason I conducted the research that I'm presenting

17 today.

18 Research on the effects of food marketing to

19 young people has traditionally focused on how it affects

20 product preferences and purchasing behaviors, and when

21 children know that advertising is trying to persuade

22 them. These questions are extremely important, but I

23 believe that there are many other questions that we

24 could be asking how marketing affects much broader

25 health-related beliefs and behaviors, and that we need
41

1 to do this before we understand the full impact of food

2 marketing to young people.

3 So, in this research, I asked a different

4 question, which was: Does food advertising cause us to

5 eat more? I based this question on the large body of

6 social psychology research on priming effects. Any of

7 you who have read the book Blink by Malcolm Gladwell

8 will have read about the research that shows that very

9 subtle cues in our environment affect our beliefs and

10 behaviors in ways that we're not aware of and that are

11 very difficult to control.

12 In the field of eating behavior research, there

13 have been many studies to show that external cues can

14 have powerful effects on how much people eat. So,

15 focusing on the taste or smell of the food, subtle

16 things as the size of the container, how many colors are

17 in the food, the portion size, what people around us are

18 doing, all of those factors have been shown to affect

19 how much we eat.

20 Now, food advertising is not exactly a subtle

21 cue, but priming effects also occur when we're not aware

22 of how the stimulus is affecting us, and what we found

23 is that most people do not think that food advertising

24 affects how much they eat, which ironically makes it

25 possible that it could do exactly that.
42

1 So, to test this hypothesis, we conducted three

2 experiments. Our first two experiments were with

3 children in second to fourth grade, and we chose this

4 population because we know that they understand that

5 advertising is trying to persuade them, but they're not

6 yet able to activate their defenses against it. But if

7 these facts are actually unconscious and occur outside

8 of our awareness, then they should affect adults as much

9 as they affect children, so our third experiment was

10 with college students.

11 I'm going to report the results of experiments

12 one and two together, because we used the same method

13 for both of these experiments. The difference was in

14 our first sample, we had a group of higher SES children

15 who had unfortunately lower than average television

16 viewing, so we thought it would be important to

17 replicate the study with a larger sample of a very

18 diverse group of children of diverse ethnicities, race,

19 and normal television viewing.

20 In total we met with 108 children, and the way

21 the experiment worked is we invited the parents to allow

22 their children to stay after school and watch a

23 television show. So, we met with all of the children

24 individually. They were in a comfortable room and they

25 watched a 12-minute session of Disney's Recess, which
43

1 used to be popular with this target group.

2 They were randomly assigned to one of two

3 conditions: In the food advertising condition, the

4 program that they watched had four food ads inserted

5 where they would normally appear in the program, and

6 these were ads that we picked from children's television

7 that were typically shown, but the children in the

8 controlled condition saw four ads for other products

9 that weren't food-related.

10 While they were watching, we gave them a big

11 bowl of Goldfish crackers as a snack. You'll notice

12 that the snack that we gave them was not the same as the

13 foods that were advertised.

14 After they left, we measured how much they ate

15 and we predicted that children who saw the program with

16 the food ads would consume more, which, in fact, they

17 did. They consumed 45 percent more Goldfish crackers

18 when they saw the program with food advertising, and as

19 you can see, we found the same effects with both of the

20 samples we looked at.

21 So, children who saw the food ads ate 28.5 grams

22 of Goldfish, and children who saw the control ads ate

23 19.7 grams. Just to put this in context, if they had

24 been watching for a half an hour, they would have

25 consumed 94 additional calories from watching the food
44

1 ads.

2 When we designed this study, we thought there

3 would be a lot of individual characteristics that would

4 also affect how much children ate. So, we also asked

5 their parents to give us a lot of information about

6 their children to try to control for all of those

7 factors. Probably the most surprising thing to us about

8 this study was that we didn't have to control for

9 anything. All but one of the individual factors that we

10 measured was not related to how much they ate.

11 So, how old they were, whether they were

12 overweight or normal weight, their ethnicity, whether

13 they were in a lower or higher SES community, their

14 appetite as assessed by their parents, how long it had

15 been since they last ate, how often they snacked while

16 watching television and how often they watched

17 television. None of these factors was related to how

18 much they ate or affected the results of the study.

19 There was one that was, which was how much they

20 liked Goldfish crackers, and this was according to their

21 parents. So, not surprisingly, the children who liked

22 Goldfish consumed more Goldfish, but whether they liked

23 the product or not, the food advertising still caused

24 them to eat more.

25 In our third experiment, we, as I mentioned, we
45

1 wanted to see if these effects occurred with adults as

2 well. We were also interested in whether the effects

3 persisted after they had been exposed to the

4 advertising. So, does it only occur while you're

5 watching TV or does it occur at a subsequent meeting

6 occasion after you've finished watching.

7 Lastly, we were interested in how the

8 advertising message affected these results, specifically

9 whether a message about nutrition and health or healthy

10 foods would have the same effect.

11 In this experiment, since we were working with

12 adults, we had to be a little bit more careful in what

13 we told them about what we were doing. So, we had to

14 have a cover story, which was that they were

15 participating in a study on television and mood. They

16 were all very fortunate, because they were in the comedy

17 condition, but in fact, everyone saw the same clip from

18 Whose Line Is It Anyway.

19 Then, there were three different conditions.

20 So, people were randomly assigned to the control

21 condition, which included 11 ads for non-food products

22 inserted where they would normally appear. It was a

23 16-minute clip, and this was the number of ads that they

24 would typically see in that time frame.

25 In the snack food condition, we replaced four of
46

1 those 11 ads with ads for products with a snacking and

2 enjoyment message, and then in the nutrition advertising

3 condition, we replaced four of the ads with advertising

4 that promoted nutrition and health.

5 Now, the nutritionists in the room will probably

6 tell me these products aren't necessarily very healthy,

7 but what we were interested in was the message that was

8 conveyed as opposed to the healthiness of the food

9 themselves.

10 So, people watched in the room, comfortable room

11 with a television set, and then we asked them if they

12 would be interested in participating in a second study

13 on a consumer testing study, and when they agreed, we

14 took them to a different room with a different

15 researcher, and this was the first time they knew that

16 the study had anything to do with food.

17 So, in the room, there were five foods laid out

18 on the table, and we asked them to taste each of the

19 foods and rate them. There were two unhealthy, very

20 unhealthy foods, two foods that people considered to be

21 moderately healthy, and then carrots and celery, which

22 were the actual healthy options. All of the foods were

23 presented in plain containers, no packaging or branding

24 were there, and we asked everyone to taste each one at

25 least once, and rate them, but they were free to consume
47

1 as much as they want. We left the room and they told us

2 when they were finished.

3 Our prediction was that the people who had been

4 exposed to the snacking commercials would consume more,

5 which is what we found. So, people who saw the snack

6 food advertising ate significantly more than people who

7 saw either the nutrition or the control ads. The

8 difference between the nutrition and control wasn't

9 statistically significant, but it looks like that

10 message may have reduced consumption somewhat.

11 Now, this is an overall message that combines

12 all of the foods that we were looking at, but if you

13 look at each of the foods individually, you'll see the

14 same pattern. In all cases, they consumed more of the

15 food when watching the snack ads, and less when watching

16 the nutrition ads.

17 It didn't matter how healthy the food was. So,

18 even the carrots and celery sticks, they consumed more

19 in the snack ad condition and less in the healthy ad

20 condition.

21 We were able to rule out some alternative

22 explanations for these results. Consumption was not

23 related to mood. It wasn't related to whether they

24 recalled the food ads or not, and it wasn't related to

25 their reported hunger. So, the one exception was in the
48

1 nutrition condition, how much they ate was related to

2 their hunger. So, it seems like that message might have

3 deactivated the snacking message somewhat.

4 So, in summary, unhealthy food advertising

5 increased snack food consumption. It occurred with

6 children and adults. These effects, we concluded, were

7 automatic. The respondents did not know that they were

8 affected in this way. It happened when they were

9 watching TV as well as during an eating occasion

10 afterwards. It generalized to other foods that taste

11 good. So, none of the foods that we advertised were the

12 foods that they ate, but we still found those effects.

13 The situational factors were most salient. The

14 effects of the advertising were much stronger than any

15 individual differences that we measured.

16 So, in the future, we plan to ask more questions

17 about how food marketing affects us, and these are just

18 a few examples of questions that psychology research

19 suggests we could be asking and that we could be showing

20 having an effect. I believe that as we move on to new

21 questions such as these, we will discover profound

22 effects of food advertising on many different diet and

23 health-related outcomes, and these findings will make it

24 clear that we need to protect children from unhealthy

25 food marketing influence.
49

1 I would like to thank my co-authors, John Bargh

2 and Kelly Brownell, everyone who helped with the study,

3 and I would also like to point out that our website,

4 yale.ruddcenter.org, so please visit it, and thank you

5 all for the opportunity.

6 (Applause.)

7 MR. BRITT: Thank you, Jennifer.

8 Our next panelist is Inas Rashad Kelly, who is

9 an economist at Queens College, CUNY in New York, and

10 also a research fellow at the National Bureau of

11 Economic Research. She's going to discuss her recent

12 studies.

13 Inas?

14 DR. KELLY: I would like to acknowledge my

15 co-author, Tatiana Andreyeva, at the Rudd Center for

16 Food Policy and Obesity, and we are looking at exposure

17 to TV food advertising, food choices and childhood

18 obesity. This is still ongoing research that is

19 actually funded by the Robert Wood Johnson Foundation.

20 This study is important for several reasons.

21 One of the reasons is that it actually shows categorical

22 effects of food advertising. So, not only is the food

23 industry predatory in nature, they're not just competing

24 with one another to capture market share. So, for

25 example, when you see an ad for Burger King, they're not
50

1 only taking customers away from McDonald's. They're

2 increasing food consumption in general.

3 So, we're looking at all of food advertising,

4 fast food advertising, soda advertising and cereal

5 advertising, which actually in the FTC report were the

6 top three advertising categories, and we're looking at

7 the effect on overall consumption, and we do find

8 increases in consumption, which shows the cooperative

9 nature of these advertisements.

10 As our moderator, David Britt, referred to the

11 IOM report in 2006, the Institute of Medicine actually

12 concluded, and that's the last bullet point, that

13 there's still weak evidence of a causal effect of

14 advertising in general, food and soda advertising on

15 childhood obesity. So, there's still a huge gap in the

16 literature here, and we're seeking to fill that gap.

17 Some other studies, Lisa Powell and her

18 colleagues at the University of Illinois at Chicago

19 actually found that 98 percent of children and 89

20 percent of adolescents are exposed to food advertising

21 for food products that are high in fat, sodium and

22 sugar.

23 Margo Wootan from the Center of Science and

24 Public Interest will be speaking later on today, found

25 in a brief report recently that 59 percent of companies
51

1 that identify their ads as appropriate to market to

2 children actually don't meet third-party standards. So,

3 it's important that more research be done in this area.

4 So, our research goal in this particular study

5 is to look, so we gathered advertising data from the

6 Nielsen Company on soft drinks, fast food and cereal,

7 and we look at those effects on food consumption in

8 children. Actually so far we've just got children,

9 we've got up to fifth graders in this study, but we're

10 planning on including eighth graders and also very young

11 preschoolers as well. We're looking at the effect on

12 food consumption behaviors and in turn the body mass

13 index or height-adjusted weight.

14 Now, some previous studies, of course, there's

15 the 1985 study by Bill Dietz and Gortmaker that actually

16 shows that those who have more screen time, for every

17 additional hour of screen time, that actually increases

18 obesity by two percent, and other studies that have

19 followed have shown that middle school children who

20 watch more television are more likely to purchase soft

21 drinks. It might be partly due to the ads that they're

22 exposed to. Similarly, children who view videotapes

23 with embedded commercials are more likely to choose

24 those advertised items.

25 Now, this is in contrast with a few studies that
52

1 haven't showed an effect in looking at childhood obesity

2 in places that have basically banned advertisements for

3 children 12 years of age and younger, such as Quebec and

4 Sweden, but those were cross-sectional studies, and as

5 we heard, things like BMI take a while to change over

6 time. That's one of the things we're planning on doing.

7 A more recent study by Epstein and colleagues

8 actually was a randomized trial and took students, or

9 children rather, and reduced screen time for a

10 randomized set of children, and actually found that it

11 lowered BMI, I believe five years later in life. Some

12 might argue, well, if they're reducing screen time, they

13 might be participating in physical activity. It doesn't

14 necessarily have to do with, say, being exposed to

15 advertisements while watching television. They found

16 that it was solely due to decreased caloric intake and

17 not to decreased sedentary behavior.

18 In my previous work with Shin-Yi Chou and

19 Michael Grossman, we have used the National Longitudinal

20 Survey of Youth to actually find an effect. We

21 hand-picked 41 fast food companies, took into account

22 the causal nature. So, those fast food companies might

23 choose to advertise in areas where demand is higher. We

24 took that into account and we actually found effects on

25 overweight status and obesity in children and
53

1 adolescents. So, 12 to 15 percent for children, and

2 four to 17 percent for adolescents.

3 We also looked in that study at the implications

4 of banning, or eliminating, rather, the tax

5 deductibility for advertising, which might be part of

6 the reason why they spend $1.6 million on advertising.

7 So, it's important to look at those implications as

8 well.

9 In this study, we don't use the National

10 Longitudinal Survey, we use a restricted use data set in

11 the Early Childhood Longitudinal Survey. And this is

12 longitudinal in nature, so it follows the same students

13 over time. They start in kindergarten, and we've got so

14 far up to fifth grade. We have got data on eighth

15 graders as well, but the results I'm presenting here are

16 only for fifth graders, so this is still ongoing

17 research.

18 So, we've got information on where they live,

19 and so we actually merge these data with advertising

20 data by designated market area, which is similar to a

21 metropolitan statistical area, and these are the

22 measures that the advertisers, the Nielsen Company,

23 gives us. We collect data and merge it for cereal, fast

24 food and soft drinks from the Nielsen Company.

25 For the top 56 designated market areas, this
54

1 might not seem like many market areas, but it actually

2 covers over 70 percent of exposure, advertising

3 exposure, so it gets to a wide audience.

4 Just to be clear, the actual soft drink measure

5 that we use, it doesn't just refer to soda or carbonated

6 beverages, it actually refers to sports drinks as well,

7 so Gatorade, and also fruit juice that isn't 100

8 percent. So, things like Hi-C, Koolaid, that's also

9 included. That's included in the advertising measure

10 and luckily it's also included in our food consumption

11 measure that they ask the children. They either asked

12 the children or one of their parents.

13 So, during the past seven days, how many times

14 did you drink soda pop, or fruit drinks, sports drinks

15 or fruit drinks, and that's the question on soft drinks.

16 The question on fast food is during the past seven days,

17 how many times did you eat a meal from a fast food

18 restaurant, to be designated as one of the quick service

19 restaurants.

20 Now, our food consumption distribution looks

21 like this. It's somewhat distributed, highly skewed to

22 the right and we do take that into account in our

23 analysis.

24 So, our dependent variable, what we're looking

25 at, the outcome is actually both soft drink consumption
55

1 and fast food consumption, so we're looking at the

2 effect of three types of advertising on soft drink,

3 cereal and fast food consumption.

4 Our main results, this just shows advertising on

5 the right-hand side. We do control for a comprehensive

6 measure of socioeconomic status, which takes into

7 account both parents' education and their income levels.

8 We control for gender, and race, on the right-hand side,

9 and we also control for television watching on the

10 right-hand side. That doesn't change our results,

11 whether or not we include television watching on the

12 right-hand side, which was interesting.

13 We find significant effects. Looking at the

14 last column, where we include fast food, cereal and all

15 soda advertising, we find significant effects:

16 Magnitudes may look small, but it's partly due to what

17 we're measuring. The advertising measures are in gross

18 rating points, and those are very low.

19 So, for example, an increase in just one gross

20 rating point, that means, for example, one advertisement

21 has reached one percent of the intended audience.

22 That's a tiny increase. So, a more relevant increase

23 might be, say, a thousand. So, looking at that, you

24 would find very significant increases in fast food

25 consumption.
56

1 So, we find soda and fast food advertising

2 positively and significantly associated with fast food

3 and soft drink consumption in fifth graders. We do

4 stratify, also by income level, we find that the effects

5 are much greater for low income families than for high

6 income families, which is interesting. In preliminary

7 analyses, we still don't find much with the body mass

8 index, but that's because we're getting a snapshot and

9 not looking over time, and so we're going to do more

10 analyses and use a cleaner approach for the body mass

11 index models, especially once we merge the eighth

12 graders in.

13 So, our further analyses, we will use a

14 different methodology, we will use specification checks,

15 and we'll use not only the ECLS-K, including eighth

16 graders, but we also plan on using the ECLS-B, the birth

17 cohort, and look at preschoolers as well. The birth

18 cohort actually has information on mothers pre-pregnancy

19 and post-pregnancy BMI which could be somewhat helpful

20 for controlling for genetic effects, which we can't do

21 as well with the ECLS-K.

22 This is our contact information.

23 (Applause.)

24 MR. BRITT: Thank you. That was great.

25 Dick Mizerski, who many of you know, is chair of
57

1 marketing at the University of Western Australia and has

2 worked a long time, well not a long time, he's not that

3 old, but has worked with the relationship between

4 children's recognition of trade characters and their use

5 of future use of products. I was with a company that

6 knew something about that. The effects of a fast food

7 toy premium, and a lot of other really good and

8 interesting work.

9 Dick? Thank you.

10 DR. MIZERSKI: Thank you.

11 Yes, I would like to talk today about a program

12 of research we've been doing at the University of

13 Western Australia, basically myself and my Ph.D.

14 students, and I'm going to report on basically the stuff

15 on masked marketing, masked marketing to very young

16 children, and what kind of responses that it prompts.

17 I'll also add at the end some other information

18 on some of the other studies we've done.

19 Masked marketing, by the way, is a term that was

20 developed last year in the Journal of Public Policy and

21 Marketing, and really looking at those messages out

22 there that somehow mask either the source of the

23 message, or the message itself.

24 Now, the reason is that individuals are much

25 more skeptical of marketing or if they know it's from a
58

1 marketer, that information, than if it's from an

2 independent source. So, clearly if we mask that, by

3 either using something like an advergame or a product

4 placement to that, I'm going to use buzz marketing or a

5 whole bunch of other techniques, we believe that that

6 prompts really a potentially dangerous situation,

7 because now children may not understand that it's from a

8 marketer and be much more vulnerable in terms of what we

9 call persuasive knowledge.

10 The reason we're looking at very young children,

11 I have done stuff with adolescents, but primarily we're

12 looking at the years from three on, and that's because

13 that's when they start to be targeted by food marketers.

14 At that age, of course, they're not really

15 buying, but they're having a huge impact on the food

16 choices of the family. We believe that they become very

17 important. They're not actually buying, but they are

18 having an influence on those people.

19 Now, we were talking about the impact of

20 marketing messages, masked marketing. We're looking at

21 two types. The first is the area of brand knowledge,

22 which Keller and some other people are talking about

23 memory and beliefs in images, and I'll talk a little bit

24 later, very powerful in terms of the preferences and

25 loyalty in young children.
59

1 We believe that this brand knowledge then leads

2 to what was called brand equity, and we've been looking

3 at preferences and choice and particularly brand loyalty

4 and how maybe such things as premiums and toys might

5 have an impact on children's decisions.

6 I'm going to be talking about two masked

7 marketing techniques today that we've tested. The first

8 one a Froot Loops advergame from the Internet that

9 compared Froot Loops to fruit, and that appeared a year

10 or two ago in the Journal of Advertising. There was a

11 sample of five to eight-year-olds, and here we were

12 looking at the short-term effects. So, they play the

13 game and shortly thereafter, within five to ten minutes,

14 they respond. We were always using a control group.

15 The second study that I am going to be talking

16 to has yet to come out, it is going to be presented in

17 March at a conference, and we are looking at a product

18 placement in a children's magazine, which is interesting

19 to me, in that we haven't found anything looking at

20 product placements in children's magazines. Those of

21 you who have children know that when they first start to

22 read, they really are a voracious reader and it's very

23 interactive and I think print media can have a huge

24 impact in terms of what people or what kids think about.

25 I don't know how well you can see this first
60

1 one, but the Froot Loops advergame that we chose, and

2 this was done by Victoria, my co-author, Victoria

3 Mallinckrodt, shows this one. We chose this because we

4 think it was deceptive. Right here you can see a scene

5 in which the child throws either a Froot Loop or a piece

6 of fruit at this monster. Now, if you throw a piece of

7 fruit, which you can see the score right there, you get

8 five points, and the monster goes, [mmm]. If you threw

9 a Froot Loop, you get ten points, and the monster goes,

10 [mmmmm], so we thought it's kind of fruit denigration.

11 So, our hypotheses were several. First of all,

12 we believe that children who played the advergame would

13 tend to believe that Froot Loops was better for them.

14 Second of all, we thought that children who played the

15 advergame would prefer Froot Loops to other cereals, and

16 they also would prefer Froot Loops to other potentially

17 more nutritious foods.

18 This gives you an idea of the actual

19 questionnaire we had here, and we asked the children,

20 five to eight years old, first of all they circled the

21 cereal that they would prefer, and second of all, what

22 meal they would prefer. You can see that they had a

23 cereal, hamburger, sandwiches and sort of a fruit cup

24 there. We found that older children in the treatment

25 group tended to prefer Froot Loops to other cereal
61

1 options, and particularly for the eight-year-olds. So,

2 the advergame compared to the control group had a strong

3 effect there.

4 We had both seven and eight-year-olds preferred

5 the cereal option compared to the control group against

6 other foods as well. So, here we can see preferences

7 were very much affected.

8 We then asked them, are you going to ask anyone

9 in your family to buy Froot Loops, and we found

10 absolutely no difference. Mainly because almost all of

11 the kids wanted Froot Loops, and they were going to ask

12 for them. So, whether the control group or not, it

13 really didn't seem to have an impact.

14 Then we looked at this area what we call

15 persuasion knowledge. Now, persuasion knowledge is the

16 idea that kids who understand what the source of a

17 message is, whether it's a commercial or non-commercial,

18 and if they understand the intent, would somehow be

19 inoculated or be able to guard against these persuasive

20 messages.

21 Well, we found out with an advergame, and I

22 think if you think about your own experience on the web,

23 the first question we asked is who put this game on the

24 web? And we had Toucan Sam, which is, of course, the

25 trade character. We had my co-author, Victoria
62

1 Mallinckrodt, who was actually collecting the data,

2 Kellogg's, which would have been the correct answer, and

3 then the teacher.

4 We expected, and found, that as kids went up in

5 age, more of them would specify Kellogg's, but Kellogg's

6 only really got something like 26 percent. Most of

7 them, and I guess if you think back, they're probably

8 right, thought it was a researcher. I suppose in a

9 sense it's probably true. But again, if you were asked

10 what is the source you were looking at, you would

11 probably have a hard time as well.

12 In terms of the two intents we asked them about,

13 the first one, was the advergame trying to get you to

14 cook with mom, we found only about five percent of the

15 kids would respond to that. Learning in school, well,

16 45 percent said that. Eating cereal, 51 percent over

17 our whole sample.

18 In terms of the second intent, playing tennis,

19 only about six percent of the kids would respond to

20 that. Buying cereal with mom, 60 percent. Playing

21 computer games, 34 percent. So, I suppose it is kind of

22 a computer game they were playing there.

23 One of the things that we found interesting, I'm

24 not going to show the table, because that would be a

25 little hard for you to see, is that we really didn't see
63

1 much of a change in terms of children's persuasive

2 knowledge from the age of about six to eight-years-old.

3 The second thing is, and that really kind of

4 surprised us, is that having persuasive knowledge had

5 absolutely no effect on any of the responses. So, if

6 they had persuasive knowledge, they didn't seem to use

7 it in the way that we would have expected that to

8 happen.

9 The other thing we did is we collected

10 information from the parents, and we asked about the

11 media use, how much television they watched over the

12 week, and we also asked about the cereal use. We found

13 out, all of the schools, we had ten schools we went

14 into, five of the schools were lower socioeconomic, five

15 of the schools were upper socioeconomic. We found a

16 very strong social class effect in terms of the

17 respondent schools, and it was negatively associated

18 with highly sugared cereals.

19 So, as social class went down, the use of highly

20 sugared cereal went up. Second of all, things that

21 we've known for a long time, is that social class and

22 television viewing is very much associated with media

23 use, particularly TV. So, as social class went down, we

24 found that TV use went up.

25 So, one of the things we have to be very careful
64

1 about here is understanding that there is a very strong

2 potential effect, and I know that some of our other

3 researchers here talked about adjusting for it, but we

4 found very, very strong effects that may really explain

5 in some sense why they're using that cereal.

6 We did a second study, just recently, and it's

7 coming out shortly. Here we looked at a product

8 placement in the children's magazine. This particular

9 children's magazine, this is product placement right now

10 for a Garfield 2 movie product, and I wish I had known

11 that I was going to be here, several years after this

12 happened, but when we did this study, we worked with a

13 magazine. It's AFLJ Squad. It's a magazine aimed at

14 little football players, and they provided us with

15 information about the placement and also sent out the

16 magazines for us.

17 The reason we did the magazines is we found out

18 the four top magazines, kids magazines, had an average

19 of about two-thirds of their content were commercial.

20 About half of that were product placements.

21 Now, if you compare that to other media, it's

22 much higher, and I haven't really looked at stuff over

23 here in America, but I would imagine probably finding

24 very similar kinds of things.

25 Now, we use the Garfield because we only found
65

1 about one percent of the placements or the commercial

2 material had to do with food, strangely. We would have

3 anticipated much higher than that.

4 I'm just showing you some of the area here, we

5 had 236 boys and 20 girls. Interestingly enough, both

6 of them played football and we didn't find any gender

7 effects, and that was hard to believe, but little girls

8 playing football with little boys, what would you

9 expect? So, we interviewed about ten to 12 days after

10 receiving the magazine. So, here we're talking about

11 not like the first one with the advergame, relatively

12 short-term effects, we're talking about long-term

13 effects of maybe at least a week after they read the

14 magazine.

15 What we found, and I think this would be very

16 generalizable to the food area, is those kids who got

17 the treatment, read the magazine, remembered the movie

18 more, liked the movie, more preferred it to other

19 children's movies that were showing at the time, more

20 requested, or will request their parents to take them to

21 the movie and will attempt to persuade their friends to

22 see the movie.

23 So, what do we make out of that? Some tentative

24 conclusions over our two studies in terms of masked

25 marketing. First of all, we know that advertising, ad
66

1 placements, appear to causally induce memory in a

2 product, preference for the product, intention to

3 request the item and suggestion that their friends get

4 the item as well.

5 Persuasive knowledge on children was positively

6 associated with their age, reading ability, but not with

7 their web experience, which kind of surprised us with

8 the advergame.

9 Also the two components of persuasive knowledge,

10 knowing the commercial from non-commercial content and

11 knowing the persuasive intent, interestingly enough,

12 were not related.

13 Some other interesting aspects were that knowing

14 the commercial content appears much more important than

15 knowing intent, and this knowledge seems to appear later

16 than knowledge of intent. So, kids learn about intent

17 much earlier than they learn about the differences

18 between commercial and noncommercial, at least in

19 Australia.

20 Persuasive knowledge is thought to be generally

21 in place by nine years old, but we found at least half

22 of our five-year-olds would have something that would be

23 relevant in terms of what we would call persuasive

24 knowledge. Having more persuasive knowledge presented

25 very little effect in children's responses.
67

1 So, techniques like advergames and placements

2 that kind of blurred this distinction between commercial

3 and non-commercial content really challenged the

4 effectiveness of a child's persuasive knowledge;

5 however, they don't seem to use it when they have it.

6 Just to give you some additional findings with

7 some of the other work we've been doing with the food

8 area and young children. We have a study where we did

9 in-depth interviews of three and four-year-olds where we

10 obtained their brand knowledge about fast food choices

11 and then they made a choice of the fast food they wanted

12 as an incentive and then we tried to tempt them with a

13 toy on their second preference to see if we could switch

14 them over. We found their understanding of brand

15 knowledge, particularly liking the brand, images about

16 the brand and some effect aspects were very important in

17 terms of their choices and also in terms of their

18 loyalty. For those researchers, we could predict, based

19 on their brand knowledge, about 85 to 90 percent of the

20 time, what brands they would choose and whether they

21 would be loyal to those brands as well.

22 Really the most important thing here is the most

23 powerful elements in the sample's fast food preference

24 in their loyalty decisions were two things, and we found

25 this kind of interesting. One was their perception of
68

1 the premiums that were offered; second in the fast food,

2 their perceptions of whether they had a playground. So,

3 we have on one side, you know, the toy; on the other

4 side, playing in the playground. So, we started to do a

5 little bit more research and find that out. But it's

6 nice to see that there are at least some other aspects

7 than toys that were important.

8 We also did some interviews, in-facility

9 interviews in McDonald's, and the weekend lunch, and we

10 observed the behavior before we actually did an

11 interview of the families. We found absolutely no

12 effect of the difference between whether a child was

13 present or not, and so really this aspect of pestering

14 for a food toy didn't seem to have an effect.

15 Significantly, and strangely, we actually had

16 more adults without children with them buying the toy

17 than people that had children. So, this was kind of

18 interesting.

19 By the way, just to kind of leave you with a

20 very short thing here and remind you that McDonald's is

21 the number one toy retailer in the world.

22 Thank you.

23 (Applause.)

24 MR. BRITT: So glad to know I'm not alone with

25 buying toys at fast food restaurants.
69

1 Our next panelist, Kathryn Montgomery, is at the

2 School of Communications at American University. She

3 has a long and distinguished history in the area of

4 children and children's issues, particularly including

5 food marketing. She was part of, the founding part of,

6 the Center for Media Education some years ago. She

7 really with her colleague and partner, Jeff Chester, has

8 really become perhaps the most knowledgeable about

9 digital marketing and the new techniques that are not

10 only widely in use now, but are being developed and

11 adapted day by day. So, with that, let me ask Kathryn

12 to bring us up to date.

13 DR. MONTGOMERY: Thanks very much, David.

14 Thank you very much. I'm very pleased to be

15 part of this forum this morning, looking out at a lot of

16 very familiar faces, having participated in a number of

17 these over the many years I've done policy and research

18 work here in Washington, D.C.

19 I do believe that the FTC does have a very, very

20 important role to play in the youth obesity crisis, and

21 I'm very happy to see all of the initiatives that the

22 agency has undertaken.

23 We know from a large body of research on

24 advertising, particularly television advertising, that

25 the marketing of unhealthy foods is a significant risk
70

1 factor for obesity among children and youth. As more

2 and more marketing continues to spread across a variety

3 of digital platforms, these risks are increasing.

4 So, what I want to talk about today is a project

5 that I'm working on now with several colleagues at

6 American University, at the Berkeley Media Studies Group

7 and the Center For Digital Democracy. I've been

8 tracking the digital marketplace, actually, since the

9 beginning, since it began in the early 1990s, and as

10 some of you may know, was very involved in development

11 and promotion of policy efforts around children's

12 privacy and passage of the Children's Online Privacy

13 Protection Act in 1998.

14 A couple of years ago, I began writing and

15 focusing very closely on digital food marketing. This

16 particular project is a broad project, that is part of,

17 that is funded by the Healthy Eating Research

18 Initiative, and that is funded by the Robert Wood

19 Johnson Foundation, and many of us are here because of

20 generous funding from Robert Wood Johnson.

21 Our goal is to develop a conceptual framework

22 for really understanding the nature of this new digital

23 marketing culture, and being able to translate that into

24 a research agenda and a set of initiatives that can be

25 undertaken by a variety of researchers.
71

1 What I want to talk about really is this idea,

2 David, you set it up very nicely, you talked about food

3 marketing, did you say food marketing 2.1? That was a

4 good one. The industry often refers to a digital

5 ecosystem, and I think that's a good way to think about

6 marketing in the digital era. It's taking place across

7 a broad spectrum of platforms, and on the Internet from

8 social networks to mobile phones to games to many, many,

9 many, many other platforms.

10 We have to understand, also, it's not that it's

11 separate, digital media is not separate from television,

12 and television advertising. It's all part of the same

13 thing, and it's really where all marketing is going, and

14 that's why I think it's so important for us to

15 understand it. We also know that food marketers, along

16 with other marketers, are moving many of their dollars

17 into the digital realm, and following the eyeballs, as

18 one of the marketers said.

19 A lot of young people, many, many young people,

20 and I'm a parent of a teenager myself, and I know a lot

21 of you are parents, we all know this, that many of our

22 young people are living their lives online, living their

23 lives in this digital media culture. It is a powerful

24 force in their lives, particularly because it taps into

25 so many of the fundamental developmental needs of
72

1 childhood and of adolescents, from identity exploration

2 to self expression to their relationships with peers and

3 their growing autonomy and independence.

4 The industry understands this very well, and has

5 been doing tons of market research to really look

6 closely at the relationship between industry marketing

7 in the digital arena and young people's needs,

8 development needs.

9 So, what I want to talk about, and David

10 referred to some of the aspects of digital marketing, I

11 would like to look at it holistically. I think it's

12 important for us to do that. I don't have time to do go

13 all of the individual techniques, but what I've decided

14 to do is to identify what we see as some of the key

15 features of digital marketing so that we can think about

16 them as a whole and understand why it's so different

17 from conventional marketing.

18 It is incorporating many of the techniques and

19 practices of conventional marketing, but has expanded

20 into a lot of other areas. We need to think about them

21 all at once.

22 There is an article that I have left on the

23 tables out in the lobby from the Journal of Adolescent

24 Health that goes into these in more detail. I am going

25 to quickly move through them and just show you a slide
73

1 for each of the features that we have written about.

2 First of all, digital media has created a

3 pervasive environment that is always on, 24/7, and it

4 can reach children and youth wherever they go. This

5 includes, and we all know how many young people are

6 using their mobile phones, it includes mobile marketing,

7 which is one of the big growth areas that is able to

8 follow a young person wherever that young person goes,

9 and we've identified marketing campaigns for food

10 products that create coupons so that you can get a soda

11 or some other thing when you're near that particular

12 fast food restaurant.

13 Another feature is behavioral targeting

14 profiling. The digital media have created an

15 unprecedented ability for marketers to engage in

16 behavioral profiling and data collection. This means

17 tracking behavior across platforms and developing

18 personalized ads designed for individuals.

19 Behavioral profiling is also a very important

20 aspect of multicultural targeted marketing that is aimed

21 at Hispanic young people and African-American young

22 people, along with all of the other strategies.

23 Social media marketing, and again we all know

24 how popular the social network platforms like Facebook

25 and MySpace are. I was just ferrying some kids to an
74

1 event at my daughter's high school, and one of the young

2 kids said, I spend like six hours a day on Facebook, and

3 I don't think my mom knows that much about it, but I do.

4 But the marketers do know about it, and it's really a

5 whole new field of social media marketing, and so it's

6 tapping into the complex web of social relationships

7 that are being conducted online to strategically insert

8 brands and to take advantage of the social graph and

9 identify who the key influencers are, who can then

10 influence other people within their social network. So,

11 it's a very, very important area.

12 So, digital media are also immersive

13 environments, and there are a lot of aspects to

14 immersive environments. Now see the state-of-the-art

15 animation and high-definition video and other multimedia

16 have created very, very compelling environments that

17 young people can be part of and experience in a very

18 subjective way. Children and teens are participating in

19 them through a number of different platforms, including

20 interactive games and three-dimensional virtual worlds.

21 So, for example, in-game advertisers can now

22 direct personalized advertising messages at the most

23 intense points in a game when users are in high stakes

24 of arousal, and they can offer immediate gratification

25 through online purchases, and thus triggering
75

1 mood-enhanced impulsive behavior. So, you begin to get

2 the picture of what's possible.

3 Another aspect is user-generated advertising.

4 With the growing popularity of YouTube and other video

5 channel sites, we see more and more marketers developing

6 campaigns to really enlist young people into creating

7 ads themselves, which turns the conventional model on

8 its head. They are no longer passive viewers, but now

9 they are actually ad producers and distributors.

10 Also, David talked a little bit about neural

11 marketing, which is the use of neuroscience to study the

12 brain's response to advertising messages. That's a key

13 part of this concept of engagement, finding ways to

14 really deeply understand how people engage with ads in

15 the interactive marketplace.

16 This trend suggests that digital marketing will

17 increasingly be designed to foster more emotional and

18 unconscious choices, rather than reasoned, thoughtful

19 decision-making.

20 Then, finally, the integration of content

21 marketing. We see now that the boundaries between

22 advertising and content which have been disappearing

23 since the emergence of e-commerce and the Worldwide Web

24 have been practically obliterated. Now we're also

25 seeing measurement and sales tied in before. Those of
76

1 us who have been working in children's television over

2 the years know that there's been a long-standing set of

3 principles of separating the advertisement from the

4 program content. It's irrelevant at this point. That

5 creates, I think, many, many challenges for researchers

6 and for policymakers.

7 This week we released a set of papers that we

8 commissioned from a group of scholars that we convened

9 this past summer, and those papers are available on a

10 website that I will give you at the end of my

11 presentation. What we did was brought scholars together

12 who were experts on child development, adolescent

13 development, and particularly looking at some of the new

14 research in those areas to get them to address the

15 particular and unique challenges and issues regarded to

16 digital marking. We're finding that in the new media

17 marketplace, the old models of vulnerability no longer

18 really hold.

19 For example, this idea that young kids don't

20 understand the persuasive intent, as they get older,

21 they begin to understand it, and therefore don't need

22 safeguards. A lot of that is no longer relevant. Both

23 because of the nature of advertising in the digital

24 context, where implicit persuasion is as important as

25 explicit persuasion, but also because what we're
77

1 beginning to learn about adolescence, and adolescent

2 development, is there a's a constellation of biological

3 and social and emotional developmental issues, and

4 trends that take place in their lives, that may make

5 them particularly vulnerable to marketing messages,

6 particularly in the digital context.

7 My colleague, Sonya Greer, at American

8 University, has also identified a set of vulnerabilities

9 that are particularly unique to African-American and

10 Hispanic young people.

11 So, what we're doing is developing a broad

12 research agenda and a framework for researching and

13 understanding digital media, which will require

14 different kinds of methodologies. I'm just going to

15 quickly go through these, and not get into them, but

16 there they are. Looking, understanding, for example,

17 it's not just the effects. It has to be beyond the

18 effects. It's not just looking at an individual

19 message, understanding the holistic set of relationships

20 in this "360 degree marketplace." All of these things

21 will be very, very important and there has been a

22 resurgence in research. What we want to do is to make

23 sure that researchers are looking more closely at the

24 digital context.

25 Finally, having said all that, I think we do
78

1 need to continue to do research, but that in no way

2 suggests in my mind that we take a wait-and-see approach

3 to regulatory intervention. The childhood obesity

4 crisis is too urgent for us to delay any responsible

5 actions, and I think there really is a role for the FTC

6 to step in and to create some fair marketing principles,

7 some rules of the road to help guide the development of

8 the digital marketing system that is so, so quickly

9 emerging and growing.

10 I believe that the COPPA model, the Children's

11 Online Privacy Protection Act model regulation may be a

12 good one for us to look at. In this situation, we have

13 a government regulatory framework with enforcement

14 provisions, coupled with industry self-regulation and

15 guidelines, that creates uniform standards that all

16 consumers can understand, consistency across platforms

17 and a level playing field for industry.

18 Anyway, I am happy to be part of this

19 discussion, and I look forward to talking with all of

20 you.

21 (Applause.)

22 MR. BRITT: Thank you very much.

23 I want to ask my co-moderator, Pauline Ippolito,

24 to give us a little bit of commentary on her take. As

25 we've been talking, she's been listening, and that's
79

1 sometimes dangerous, but always useful.

2 She's the Deputy Director of the Bureau of

3 Economics here at FTC. She has worked on a variety of

4 issues in her career and in more recent years has

5 focused on the role of advertising in general,

6 particularly with respect to health-related claims, and

7 also on studies relating to marketing and children.

8 So, with that, Pauline?

9 MS. IPPOLITO: Well, I've got three minutes to

10 sum it all up. What I'm really going to use my three

11 minutes for is to tell you really why we invited this

12 panel. There are a number of techniques as people try

13 to explore from a research perspective what's going on

14 in marketing to children, and the first two papers you

15 saw, well, I may have the order wrong, but in the Harris

16 and Mizerski paper, you saw two really good examples of

17 experimental approaches.

18 The experimental approaches are nice, because

19 you can put a stimulus, ads of some sort, have a control

20 group, and then measure effects, or measure changes in

21 attitude, changes in behavior.

22 So, you've got tight control over the stimulus

23 and therefore have a better shot at explaining effect

24 and knowing the causation.

25 Inherent problem, of course, with this approach
80

1 is it has to be a short-term effect. You have a

2 stimulus, you put Goldfish in front of the kids, how

3 many Goldfish do they eat? Or you have a stimulus, you

4 have a second phase, and you have eating behavior.

5 So, it's very good in terms of the causation and

6 the control, it's less good in terms of how does it all

7 play out in the marketplace, in the world.

8 So, the Kelly paper takes the opposite approach,

9 it uses in-field data to try to look at whether there's

10 a correlation between kids who are exposed to more

11 marketing and weight, or eating behavior. That's nice,

12 because it's out in the real world, you've got all of

13 the other influences going on, you can really try to see

14 whether there's a tight correlation between the issue of

15 concern through advertising and kids' weights, or eating

16 behavior.

17 Of course the problem is, advertisers don't just

18 throw ads out there, they target advertising, they

19 target advertising to where they think it's going to do

20 the most good from their point of view.

21 So, the key concern always in the in-field

22 studies is how well have you identified variation in the

23 variable of control, through advertising in this case,

24 and the outcome variable that you're interested in.

25 So, she talked about various controls that she
81

1 tried to do, and it's a very good study by these

2 standards, but that's always an issue in those kinds of

3 studies.

4 So, it's important that when we assess the

5 issue, we try to look at all kinds of research, how good

6 is the evidence on causation, in the short-term studies,

7 how does it play out in the real world, are we getting

8 corroborating evidence there, and where are the

9 weaknesses in the evidence that's out there?

10 The third type of work is the what-is-happening

11 work, which, for we who have to make decisions, is a

12 very important part of what we need to know. It is

13 clear to everybody who follows marketing at all that

14 things are changing. That's true. There's no question

15 about it. How we measure, what we measure, what it

16 really means, is it qualitatively different from what

17 we've seen in the past, is it how do we know how

18 different it is and whether it should matter and how it

19 should shape our decisions. This is an important new

20 area for exploration.

21 So, we're certainly trying to keep track of it,

22 but it's changing very rapidly, and there's very little

23 data at this point. Very little hard evidence that says

24 that it has fundamentally different effects.

25 Appealing to the emotional reaction to a product
82

1 is not new. They didn't put all those beautiful women

2 on cars for their information value. This is a

3 technique that is well established in marketing.

4 They're in a better position to use it now.

5 But it is different, as a mother of two

6 20-something boys, I can tell you. They live in a world

7 that is very different than the world I live in. We

8 need to pay attention to that.

9 I guess the one thing that I didn't hear a lot

10 about, and I think is an important feature to add to the

11 research agenda, is can you sell good foods to kids?

12 How do you sell good foods to kids? I don't think food

13 producers are out to sell bad foods deliberately to

14 children. So, I think we need more work on how do you

15 get kids to want to choose good foods? Salty foods

16 taste good, apparently. Sugary foods taste good,

17 apparently.

18 So, I think the other side that we need research

19 on is what's the way forward? There's a great

20 temptation to just say, stop advertising to children.

21 Well, that would be hard to do, but even if we did it,

22 does that really change the world very much?

23 So, I think another part of the research agenda

24 that we really should be encouraging, I think, is how do

25 you communicate to children that there are better
83

1 choices and that they could enjoy those better choices?

2 So, I would like to add that.

3 Thanks.

4 (Applause.)

5 MR. BRITT: Just a couple of quick follow-up. I

6 think we have a few more minutes. One, Kathryn, to you,

7 with respect to the question that was just raised by

8 Pauline, are you aware of any use in terms of the new

9 digital media of efforts to promote healthier eating,

10 whether it's healthier foods or healthier eating in

11 general? I haven't seen a lot on the ground yet, but

12 you follow this more closely.

13 DR. MONTGOMERY: I've seen, I haven't looked as

14 closely at that, but I have seen some efforts in the

15 virtual worlds. The CDC actually has a campaign in some

16 of the virtual worlds that are targeted at kids who try

17 to promote healthy foods. I don't know whether that's

18 been tested. I do think it's an important area, as part

19 of the bigger picture. I mean, it's such a huge area of

20 research that needs to be done that certainly could be

21 included, but there's a huge amount that has to be

22 looked at.

23 MR. BRITT: It's also a fruitful potential area,

24 you should excuse the word fruitful, because of the

25 lower cost and the ability to change and adapt what
84

1 you're making an investment in to see if it has impact,

2 and it may well not be product by product, but really --

3 DR. MONTGOMERY: Right, and I think you have to

4 think about the overall context that such a message is

5 inserted. So, there's one little campaign, but if you

6 look at it in the context of all the other kinds of

7 "messages" and "influences" that are part of the growing

8 marketing, digital marketing culture, you have to assess

9 whether it's going to have much of an impact.

10 MR. BRITT: Dick?

11 DR. MIZERSKI: I am just going to share at least

12 what's happening over in Australia, as there is an

13 enormous amount of government money going into promoting

14 fruits and vegetables, and it is all over the place, any

15 sporting event, on television, using the Internet. It's

16 really not clear yet how effective it's been. People

17 can tell you two fruits and five vegetables, that's

18 their whole theme, but what impact its made in terms of

19 obesity and weight and that kind of thing, it hasn't

20 shown it yet.

21 MR. BRITT: There are very few examples, I think

22 we all agree, in terms of research that really try to

23 combine the approach of marketing to really mirror that

24 which industry does so well, which is to brand the

25 products and to wrap things together with avatars that
85

1 can last for a long time and build the kind of

2 socialization that your research, in particular, found

3 to be important. Brand loyalty at three and

4 five-years-old, that's kind of a holy grail of

5 marketing.

6 I think that really wraps us up. Jeff? No

7 questions on this one, because we are literally out of

8 time, and I have to congratulate, I have to say

9 everybody says self-regulation doesn't work, but in

10 terms of this panel, it did pretty well. But even so,

11 we are out of time. We will have a great deal of time

12 available or more time available in some of the other

13 panels, in particular at the end of the day.

14 Thank you all very much.

15 (Applause.)

16 MR. FENTONMILLER: We're going to take a

17 15-minute break and we will reconvene at 11:15.

18 (Whereupon, there was a recess in the

19 proceedings.)

20 MR. FENTONMILLER: Our next panel is Advertising

21 to Children and the First Amendment. This panel will

22 have question and answer from the audience. Staff

23 members will be parading around the audience area with a

24 couple of mic's, so if you have a question, raise your

25 hand and they will hand you the mic'.
86

1 For people watching by webcast, again, you can

2 send questions or comments to childhoodobesity@ftc.gov

3 and that email address will be up at the question and

4 answer portion of the presentation.

5 At this time, it's my honor to turn it over to

6 our Director of Consumer Protection, David Vladeck.

7 (Applause.)

8 MR. VLADECK: Thank you. Thank you, and thank

9 you very much for coming today.

10 I was asked to moderate this panel because I

11 think in some ways I am uniquely qualified to do this.

12 I think I'm one of the few lawyers in the country who

13 has taken both sides of the commercial speech debate,

14 arguing early on that commercial speech was entitled to

15 constitutional protection, but also arguing that there

16 are limits to the protection that ought to be afforded

17 to commercial speech.

18 We have a really terrific group of panelists

19 today, I would like to just briefly introduce them. I

20 would like to start out in order and do this

21 chronologically in terms of their participation with the

22 Commercial Speech Doctrine. Marty Redish, an eminent

23 scholar from Northwestern Law School, actually and this

24 is a little known fact, this is all Marty's fault.

25 Marty wrote an article in 1971 when I think he was still
87

1 in sixth grade arguing that the First Amendment ought to

2 be read to protect commercial speech. Marty's article,

3 written at that tender age, provided part of the

4 intellectual foundation for the litigation that then

5 ensued to persuade the Supreme Court that commercial

6 speech was entitled to some sort of constitutional

7 protection.

8 So, I am going to ask Marty to lead off in a

9 minute. I am going to give each panelist five minutes

10 to say their peace. Marty, because he started all of

11 this, I think is entitled to go first.

12 To Marty's immediate right is Dan Jaffe. Dan is

13 the executive vice president of the Association of

14 National Advertisers. I think the title of Dan's

15 position tells us where he will come out on some of

16 these positions, but we are grateful for Dan's

17 participation.

18 Then Tamara Piety is sitting next to Marty.

19 Tamara is an old friend, she's one of the next

20 generation of leading First Amendment scholars. She has

21 written extensively on commercial speech.

22 Last, but certainly not least, is David Yosifon.

23 David is a professor at Santa Clara Law School. The

24 irony of that should not be lost on anyone who cares

25 about constitutional law. Although Marty is the
88

1 immediate source of our problem, the real source of our

2 problem is the Supreme Court's ruling in the Santa Clara

3 Railroad case back in the late 1880s that corporations

4 were persons under the Civil Rights Act, and therefore

5 could assert constitutional protection under the First

6 Amendment. So, it is only fitting that we have someone

7 from Santa Clara.

8 So, I'm going to now get out of the way and ask

9 each of our panelists to speak for five minutes. As a

10 zealous regulator, I will watch the clock carefully and

11 will not permit much transgression.

12 So, Marty, the floor is yours.

13 MR. REDISH: Thank you, David.

14 I should say at the outset that I decided a

15 number of years ago that unless I am reporting

16 statistical studies or need charts, I don't use slides,

17 because I found out when I did that, people were looking

18 at the slides and not looking at me, and I didn't think

19 that made a lot of sense.

20 So, I'm just going to try to use the cerebral

21 approach today, and I want to talk about three things.

22 First, what are the values of the First Amendment that

23 are indicated and protected by commercial speech.

24 Second, where is the Supreme Court today on the issue of

25 commercial speech? What kind of protection does it
89

1 give, what kind of regulations would it authorize or

2 would it not authorize. Finally, take a little time to

3 talk about the unique situation to regulating speech to

4 children and how that alters the First Amendment.

5 First of all, what are the values of the First

6 Amendment that are implicated by commercial speech? Why

7 would an ad for Crest toothpaste or for a Toyota be

8 thought to implicate the kind of Constitutional

9 protections that would protect the "I Have a Dream"

10 speech or the "Cross of Gold" speech, and intuitively,

11 it's easy to assume that they have nothing to do with

12 each other. But if you deconstruct them, you will see

13 that the two are really connected.

14 Well, why do we protect speech in the first

15 place? Why do we have a First Amendment? Well, the

16 famous political philosopher of the 1940s, Alexander

17 Meiklejohn, once said, "Speech springs from the

18 necessities of self government." We are the governors,

19 the people we call the governors are simply our agents.

20 Because we in the exercise of our power of self

21 determination as a collective society have the final say

22 as to how we will live and how we will govern, we need

23 information and opinion, competing information and

24 opinion that would facilitate our life-affecting

25 choices.
90

1 We may not like all of that speech. We may not

2 like the results that we are allowed to achieve as a

3 result of it, but we protect it all because it is of

4 such great value to the democratic process.

5 Where does commercial speech come into that?

6 Well, commercial speech, as I argued in my article in

7 1971, really facilitates a kind of private

8 self-government. We have total control over basic

9 choices involving our private lives. When we are making

10 our governing decisions that Professor Meiklejohn was

11 talking about, we have one-one-millionth of a say. When

12 we make choices about our own private lives, we have 100

13 percent of the say. Therefore, at least as great a

14 force of democratic thought underlies the protection of

15 commercial expression.

16 Now, does that mean that the commercial speaker

17 is not out to make money? Does that mean the commercial

18 speaker is not trying to use certain persuasional

19 techniques that appeal to noncognitive elements? No.

20 All of that is true. But all of that is true for other

21 kinds of speech as well.

22 Everything you heard on the last panel would be

23 also true of political consultants. If you're old

24 enough to remember the Willie Horton ad in 1988 by the

25 first George Bush, if you think of what techniques Karl
91

1 Rove has used, or the Democrats themselves have

2 techniques to this effect. There is always this kind of

3 persuasional element. There are appeals to a motive and

4 a rational or nonrational elements, yet what's the

5 alternative? As Winston Churchill said, "Democracy is

6 the worst form of government, except for all the

7 others."

8 If we reject the notion that individuals have

9 the basic decision-making power to govern their lives,

10 we have basically conceded the morality of tyranny. We

11 can't do that. Because we can't do it in the political

12 realm, we don't do it in the commercial realm as well.

13 For example, if I asked all of you, does

14 Consumer Reports deserve constitutional protection, I

15 would imagine you would say it does. Yet, it's dealing

16 with consumer products. It's not the "Cross of Gold"

17 speech, or the "I Have a Dream" speech.

18 The recognition that Consumer Reports deserves

19 constitutional protection is automatically inherently a

20 recognition that information and opinion about

21 commercial products and services is relevant to our self

22 government.

23 Now, the response, I'm sure most of you are

24 thinking it, Consumer Reports is objective. These

25 commercial advertisers aren't. Well, transfer it to the
92

1 political process. Not all political advertisers are

2 objective. People have agendas. They are allowed to

3 promote it. Advocacy is not fraud. The mere fact that

4 a speaker is advocating one side of a debate doesn't

5 mean that they are tricking somebody or that there's

6 necessarily a misleading aspect to their speech. We

7 expect counterspeech to deal with the problem.

8 Now, where is the Supreme Court today? Well,

9 the Supreme Court has given extensive protection to

10 commercial speech, much more than I bet you are willing

11 to imagine. In the case that David argued for the free

12 speech side, the Virginia Board of Pharmacy case, in

13 1976, they gave a significant amount of protection to

14 commercial speech, but in the last 15 years, it has been

15 increased dramatically.

16 The government has not won a commercial speech

17 case in the Supreme Court since before 1996. That

18 rivals the Chicago Cubs for a losing streak.

19 (Laughter.)

20 MR. REDISH: Let me read you some of the things

21 that the Supreme Court has said in the recent years.

22 First, in that Virginia Board of Pharmacy case, the

23 Supreme Court said this: "There is, of course, an

24 alternative to this highly paternalistic approach. That

25 alternative is to assume that this information is not in
93

1 itself harmful, that people will perceive their own best

2 interests if only are they well enough informed, and the

3 best means to that end is to open the channels of

4 communication rather than to close them. But the choice

5 among these alternative approaches is not ours to make.

6 It is precisely this kind of choice between the dangers

7 of suppressing information and the dangers of its misuse

8 if it is freely available, that the First Amendment

9 makes for us."

10 In a later case, the 44 Liquor Mart case, the

11 Court spoke of the "offensive assumption that the public

12 will respond irrationally to the truth." "The First

13 Amendment directs us to be especially skeptical of

14 regulations that seek to keep people in the dark for

15 what the government perceives to be their own good."

16 Think about the relevance of those statements to the

17 kinds of issues we're talking about today.

18 Now, does that mean there are no alternatives?

19 How about regulating the content of the food? It would

20 seem to me that that would be an obvious choice. What

21 you're not allowed to do is regulate behavior, to

22 manipulate behavior through the selective suppression of

23 information. You can require disclaimers, you can

24 require warnings, and you can restrict speech aimed at a

25 certain level of child. Where the Court is on the First
94

1 Amendment rights of children is not entirely clear, but

2 the one thing that is clear, and I'll end with this, is

3 you cannot reduce the adult population to the level of

4 the sandbox.

5 Thank you.

6 (Applause.)

7 MR. VLADECK: Way to liven this up a little.

8 Tamara?

9 MS. PIETY: I couldn't tell whether you were

10 asking me to go next or last. Okay. I had prepared a

11 much longer piece, not taking the invocation seriously

12 that it was five minutes. So, I'm going to try to do

13 this very quickly, and a lot of things are probably

14 going to be left out, but I want to make two points that

15 are really, or perhaps three points really, really

16 clearly, and that I hope will be the thing that you take

17 away from this.

18 I want to commend, first, the FTC for convening

19 this conference, and thank David for inviting me to do

20 it, because this is a very serious problem, but Marty's

21 talk just illustrated where we are. I have a quote from

22 yesterday's Advertising Age about how they view sort of

23 the problem, and I assume that the purpose of this panel

24 is to investigate whether or not the First Amendment

25 represents an obstacle to the regulation of advertising
95

1 directed at children, in light of the very grave health,

2 not to say life, chances that we are talking about, and

3 this is the life of our country.

4 It will come as no surprise to those familiar

5 with my work when I say that no, the First Amendment

6 should not represent any obstacle. Now, there are a

7 number of things that Marty said. There are a number of

8 things that go into this sort of conception of

9 commercial speech this way that I don't have time to

10 talk about, but here are the points I want to say.

11 First of all, marketing speech is about making a

12 profit, not about making a point. Now, that does not

13 mean that I have anything against making profits. I

14 think commerce is great. I think making profits is

15 great, but for markets to function well, they need

16 information. Information, good information. In

17 particular, to regulate commerce, we need to be able to

18 regulate marketing. If we can't regulate marketing, we

19 can't regulate commerce.

20 This is particularly important with respect to

21 fraud. We have to be able to regulate fraud.

22 Secondly, a second category mistake is to treat

23 corporate speakers the way you treat human beings, and

24 to treat them as having expressive needs the same way

25 that human beings do. Corporations are legal fictions.
96

1 They don't have expressive needs intrinsically. I think

2 Professor Redish even alluded to this in his conception

3 of governments. Likewise, corporations have the sort of

4 speech rights, I would maintain, that are representative

5 of the type of organization that it is. Corporate law,

6 which I teach, distinguishes between types of

7 corporations and gives to those corporations powers that

8 they are given by law. So, it's a sort of a circular.

9 They have what powers we give them, under law.

10 If we don't stop this trend that Professor Redish so

11 eloquently expressed there, that since the last 15

12 years, what we will see is the attempt to use even the

13 existing commercial speech doctrine against fraud

14 claims, and to treat the commercial speech like New York

15 Times versus Sullivan sort of libel, which would be

16 effectively, even though we retain, and sort of

17 genuflect in the direction of, how the First Amendment

18 doesn't protect fraud, the practical import will be that

19 it will protect fraud.

20 Let me give you an example of this. I am going

21 to go very quickly through all of these slides, and none

22 of these things I can actually say. These are some

23 things from the tobacco case in Washington that was

24 recently affirmed in the Second Circuit, but one of the

25 reasons, or some of the reasons offered for protecting
97

1 commercial speech, which I'm not going to go into all of

2 these.

3 (Laughter.)

4 MS. PIETY: David warned me that it's going to

5 be very quick, so I am going to just go to the Kasky

6 case, which most of you are probably familiar, the Nike

7 v. Kasky case. So, in Nike v. Kasky, Exhibit A, the

8 claim I just made, is about fraud. This is what the

9 Nike v. Kasky case was about. I'm sure most of you are

10 probably familiar with it, but we are not familiar with

11 because it got misreported, widely misreported, and then

12 repeated in some of the justice's opinions, is that this

13 was a case in which the plaintiff pled fraud. Nike's

14 response, a demurrer. You failed to state a cause of

15 action. You don't have a cause of action for fraud. If

16 we take this away, that's what the import of that was.

17 Now, the California Supreme Court eventually

18 said, no, this case can go forward, but the trial court

19 and the Court of Appeals in California agreed, the First

20 Amendment would bar this claim, notwithstanding that

21 Kasky alleged that there was fraud and deceit involved

22 in that case.

23 So, let me go back for a moment to the corporate

24 person. This is, I think, a mistake that arises from

25 Santa Clara, but I think that there's also part of what
98

1 happened in the Commercial Speech Doctrine is something

2 that we saw a blending from the election speech area,

3 that is the strong statement of corporate personhood in

4 Belotti got moved into the commercial speech case, and

5 we began to see these sort of statements about the

6 commercial speaker reiterated in the commercial speech

7 case.

8 Now, the Virginia Pharmacy case that Marty

9 refers to is one in which the Court focused on the

10 listener, and sort of not being paternalistic about the

11 listener and having the listener be able to make choices

12 for himself about truthful information, but didn't talk

13 about the speaker's right to speak the commercial

14 speech, and indeed, retained the right to regulate.

15 That's where we are now, right, in the Central Hudson

16 world.

17 Belotti was a really strong statement about the

18 corporation's right to speak as a corporation, although

19 albeit stated in terms of this is the type of speech

20 that must be protected. So, I predict to you that with

21 Citizens United, that's being decided right now, is that

22 what is valuable about that, even though it's

23 theoretically political speech, is that it will be

24 imported into the commercial speech context as a

25 justification or a rationale for why we can't regulate
99

1 at all.

2 This problem is far too important. This is life

3 or death, and so I'm going to go through -- life or

4 death for me. One more minute.

5 So, the moral to the story is the extension of

6 stronger speech rights to corporate entities will lead

7 to the argument of fraud and irresponsible marketing or

8 communication practices should be, must be, unavoidably

9 have to be, shielded. We see these beyond food -- in

10 Standard and Poor's response on the fraud claims on

11 their bond rating and job marketing. If not now, when?

12 I would note, also, the may does not entail the

13 shall, just because we can, doesn't mean we should or we

14 will, but we shouldn't take it off the table.

15 I will leave you with the words of Justice

16 Jackson, "Given the nature of this crisis, an

17 interpretation of the First Amendment to disable us from

18 responding to this in terms of marketing would turn the

19 First Amendment into a suicide pact."

20 Thank you.

21 (Applause.)

22 MR. VLADECK: Dan, you're up next.

23 MR. JAFFE: Good morning. Good to see all of

24 you. I want to very much thank the FTC. I wanted to

25 thank David Vladeck for having me join this
100

1 distinguished panel.

2 I would like to just say one comment to the

3 statement that was made a minute ago that it was said

4 that marketing is all about making a profit, not about

5 making a point. I'd like to make the point that that's

6 a caricature, that, in fact, advertising makes many

7 points and that was the key fact in the Virginia

8 Pharmacy case, where they said that the public often is

9 more concerned about some of the issues that marketing

10 discusses than the most important political issues of

11 the day. That is still the case.

12 I'm going to try to keep to David's five-minute

13 rule, so I'm going to move forward.

14 The FTC should be congratulated for over three

15 decades of protecting the First Amendment. Not only in

16 the children's advertising area, but in the adult area

17 as well. But that is going to be strongly challenged

18 again in this environment.

19 Today's panel, to quote the famous political

20 sage, Yogi Berra, "Like déjà vu all over again." We are

21 truly experiencing a back-to-the-future moment, because

22 as some of you in this room remember, but for those of

23 you who don't, let me remind you that in 1978, the FTC

24 launched a massive rule-making to determine whether to

25 ban children's food advertising. After 60,000 pages of
101

1 submissions, and 6,000 pages of testimony, the FTC in

2 1981 came to the end of this rule-making road, when the

3 FTC staff concluded that there did not appear to be any

4 workable solution that the Commission could implement

5 constitutionally, and as Marty Redish has pointed out,

6 the constitutional protections have increased rather

7 than decreased in the intervening time.

8 In 2004, Howard Beales, the former FTC director

9 of the Bureau of Competition reviewed this whole

10 rule-making and concluded, "Based on the history of FTC

11 regulation of children's advertising, experience with

12 the prior Kid Vid rule-making and current state of the

13 law, one can only conclude that restricting truthful

14 advertising is not the way to address the health

15 concerns regarding obesity."

16 The FTC's own history and experience should be a

17 beacon to guide us in regard to how to respond to these

18 critical issues today.

19 The First Amendment discussion today is just not

20 an academic abstract or theoretical issue. The

21 advertising community faces real, clear and present

22 threats of censorship, and massive censorship.

23 There's, unfortunately, a growing number of

24 proposals from policymakers to tax, ban or severely

25 restrict food marketing. To go down this road would be
102

1 very unfortunate and counterproductive, because it would

2 divert attention from real solutions and head us

3 eventually into a policy cul-de-sac, as we discovered

4 back in the late 1970s.

5 Here we see the various strong standards that

6 the Supreme Court has promulgated over the last 30 years

7 with regard to the protections that advertising has

8 under the Constitution. The Western States case makes

9 clear, that is the strongest statement of the First

10 Amendment protections, that if the First Amendment means

11 anything, and this was a commercial speech case, it

12 means that regulating speech must be a last, not first,

13 resort.

14 The Western States case further makes clear that

15 the First Amendment should not be perceived as merely a

16 defense against government overreaching in regard to

17 speech, instead, it sets clear parameters for government

18 policy information, commanding that non-speech

19 restrictive options need to be examined and found

20 insufficient or inadequate before you turn to any speech

21 approach.

22 Even where speech restrictive approaches might

23 be permissible, and they certainly can be, certainly the

24 FTC can stop any false, deceptive or unfair ads, the

25 burden of proof is on the government to demonstrate that
103

1 these restrictions will work in a material manner. Here

2 the research data, despite what you have heard earlier

3 today, raises many serious questions. The IOM when it

4 examined this issue could not find a causal connection

5 between advertising and obesity.

6 For teenagers, paradoxically, advertising was

7 found to be negatively associated with their food

8 choices. We are far from helpless to effectively

9 respond. Here is a list of just some of the options

10 that the Institute of Medicine put forward as possible

11 means for government to combat obesity, and none of

12 them, as you will see up there, requires speech

13 restrictions.

14 Unfortunately, when we discovered, and I hope

15 that what we heard at the beginning of this forum is

16 true, that there seems to be an inverse relationship

17 between the level of complaint about and concern about

18 obesity and government action. The government has been

19 backing away, and I in my longer paper discuss this in

20 some detail, from doing what is necessary. I hope that

21 what Secretary Sebelius said is really a harbinger of a

22 major change.

23 On the other hand, the ad community over the

24 last nine years has launched a multibillion dollar,

25 multifaceted approach to responding to the legitimate
104

1 concerns about obesity. That far exceeds even what we

2 heard about this morning. We completely revamped our

3 self-regulatory children's advertising review efforts.

4 We launched a whole new food and beverage and restaurant

5 advertising self-regulatory system for kids. We launch

6 major new initiatives in response to public service

7 advertising. That campaign has already reached over a

8 half a billion dollars. We continue to work in these

9 areas to push for new legislation for CDC programs on

10 nutrition, and physical education, which are hardly

11 available in half of our states. We will continue to

12 push for other programs that work in the schools.

13 I'm almost done.

14 MR. VLADECK: Good, because your time is up.

15 (Laughter.)

16 MR. JAFFE: May I conclude?

17 Finally, I would like to end by noting that

18 there is a disturbing new development. There has begun

19 the efforts to try to expand advertising restrictions

20 beyond those under 12, to teenagers. Never before in

21 this country have we tried to treat 17-year-olds as they

22 were seven-year-olds in regard to speech restrictions.

23 To try to infantize teenagers is a very radical step.

24 Clearly you can't claim that teenagers don't have the

25 judgment or maturity to handle advertising and then turn
105

1 around and say that they can drive and shortly

2 thereafter join the military, get married and vote.

3 It's just not possible to place teenagers in impermeable

4 cocoons until they somehow emerge magically mature at

5 the age of 18.

6 Thank you.

7 (Applause.)

8 MR. YOSIFON: Thank you so much for this

9 invitation to speak on this panel. It's truly an honor

10 to be sitting on a panel with such illustrious

11 academics.

12 The great legal theorist Roberta Unger likes to

13 say that the task of the intellectual is to make the

14 obvious explicit, so that we might be forced to grapple

15 with that which we already in some sense know but have

16 not yet treated rigorously.

17 So, what I want to do in the five minutes, four

18 minutes and 45 seconds, that I have remaining, is to

19 render a few statements that I think are relatively

20 uncontroversial, to just line them up one after the

21 other so that we might grapple with their implications,

22 which might, indeed, be quite controversial.

23 Incidentally, because of the present setting, I

24 thought it might be interesting to look for a pithy line

25 with respect to what the task of the bureaucrat is. I
106

1 thought it would be funny maybe if I could say I looked

2 for such a line, but couldn't find anything. But

3 instead, I did find quite a bit, but none of it is

4 really appropriate for polite company.

5 (Laughter.)

6 MR. YOSIFON: So, I will leave it to the

7 bureaucrats to describe their own task.

8 So, I want to start off, we've heard a lot today

9 said about the obesity epidemic. We saw some of the

10 facts and figures that were described on the first

11 panel, but I start off this slide by asking the obesity

12 epidemic, question mark, because the very phrase implies

13 that we have a problem, a problem that is in need of

14 remedy.

15 But if we think about the way that we typically

16 view competitive markets operating, we typically like to

17 view the consumer as being served by markets, right?

18 Food corporations and retail food corporations certainly

19 are operating in highly competitive markets, and they're

20 stumbling over one another in pursuit of profits, and

21 the way that they achieve these profits on behalf of

22 their shareholders is by discerning what it is that the

23 consumer wants.

24 So, the process of market competition serves the

25 consumer interest by discovering ever more subtly what
107

1 it is that she desires, and by providing it to her at an

2 ever cheaper price. So, if you take this conventional

3 conception of how competitive markets operate, you would

4 have to change the obesity epidemic title to something

5 like just the obesity circumstance, right, and the rates

6 of overweight and obesity that we witness in our society

7 are a felicitous result and are merely the consequence

8 of consumers getting what it is that they desire.

9 It's this view of human behavior -- that humans

10 have within them a set of privately ordered preferences

11 -- that market actors in competitive environments

12 discern. It's this conception of human behavior that

13 really informs Professor Reddish's view, if I may, of

14 the Commercial Speech Doctrine. The beautiful thing

15 about advertising, operating in competitive markets, is

16 that it allows profit-seeking corporations to inform

17 consumers about their products, and to let consumers

18 know that we've discovered what it is that you want, and

19 here's the price that it's being offered at.

20 So, the Professor Reddish's view of commercial

21 speech, and indeed the Supreme Court's view of

22 commercial speech, broadly construed, is that it aids

23 consumers in discovering what markets have to offer and

24 it aids in the efficient operation of market

25 competition.
108

1 The problem is that the social science has

2 revealed to us that we human beings are, in fact, far

3 more susceptible, for more vulnerable to situational

4 influence in our cognitions, in our perceptions, than we

5 intuitively think about ourselves, or that legal

6 scholars or jurists or policymakers have typically taken

7 us to be.

8 We've seen from the first panel today the myriad

9 of ways in which marketers can manipulate consumer risk

10 perception, exploit behavioral and neural techniques in

11 such a fashion as to induce hunger rather than respond

12 to a pre-existing consumer preference, but rather induce

13 hunger or manipulate the consumer's perception of the

14 risk.

15 So, and the truth is that alongside the beauty

16 of markets, we have what I call the problem of power

17 economics, which is that these very same

18 profit-maximizing corporations operating in the context

19 of competitive markets, on behalf of shareholders, as

20 the shareholder primus in norm in corporate governance

21 law requires them to do, firms are going to discover as

22 much, if not more, about how humans actually think and

23 behave and develop preferences and risk perceptions, as

24 the social scientists who sat on our first panel will

25 discover.
109

1 They'll do so even without any actual human

2 beings sitting within the corporation having any

3 conscious understanding or conscious intent to discover

4 and discern the mechanisms of consumer manipulation,

5 because the market will reward those corporations that

6 even happen to stumble upon the mechanisms that were

7 made explicit in the panel today.

8 We do, however, know that many corporations are

9 well aware of these cognitive dynamics, which I don't

10 have the time to get into.

11 Professor Redish, I misspelled your name on my

12 slide, but I want to make the point, first of all,

13 doctrinally, which really hasn't been made I think that

14 explicit yet, which when we talk about the regulation of

15 commercial speech, the Court has said that false and

16 misleading speech is not entitled to protection, right?

17 And once you've decided that the speech is not false or

18 misleading, then we have this so-called intermediate

19 standard, but as the other panelists have said, no court

20 is ever willing to say that there is a substantial

21 government interest in keeping truthful, non-misleading

22 information from the public.

23 So, in my view, what we really need to do is

24 to develop the first prong of the Central Hudson test

25 and develop a more robust conception of what it means to
110

1 be false, and what it means to be misleading, such that

2 advertising, falsely misleading advertising, would not

3 fall within First Amendment protections.

4 I'll just wrap it up. So, my time is up, but

5 maybe this can serve as a transition into the question

6 and answer, maybe it serves as a question to Professor

7 Redish, if I might. So, some say that imitation is the

8 sincerest form of flattery. I think that's not right, I

9 think critique must be the sincerest form of flattery,

10 and as I told Professor Redish, when I wrote some of my

11 earlier writing directly engages his scholarship, and I

12 never dreamed that I would be so fortunate as to sit on

13 a panel with him to be able to share some of these

14 ideas.

15 So, I will put the question to Professor Redish

16 and say where Professor Redish has argued in the past

17 that we can't construe the First Amendment to allow the

18 government conclusively to determine how citizens

19 process information or when there's a fear of

20 information overload dictates the need for government

21 intervention. We can never be sure that such a point

22 exists, much less that citizens have, in fact, reached

23 it. But I ask you, Professor, whether as a consequence

24 of emerging from the muck or having been cast out of the

25 Garden, can we not be certain that we have limited
111

1 cognitive capacity, can we not be certain that such a

2 point exists, and do we not need a conception of the

3 First Amendment that can account for that reality?

4 (Applause.)

5 MR. VLADECK: We'll come to that. I have a

6 number of questions that I want the panelists to answer

7 in turn, and I want to keep these answers very brief.

8 So, you have a minute. I want a reasoned, thoughtful

9 response.

10 So, if one were to look at the sum total of the

11 Supreme Court's commercial speech cases, the one thing

12 that comes out crystal clear is that the doctrine is

13 designed to protect the free flow of information to

14 consumers so they can make reasoned choices about the

15 products and services they want to purchase.

16 The emphasis is on information. Each of the

17 cases the Court has decided, and Marty is right, it's

18 been over a decade since the Court has struck down, has

19 upheld a restraint on commercial speech, but in each of

20 these cases, the issue related to information.

21 So, my question is this: The concern about

22 children's advertising is that the ads are designed not

23 to inform reason, but to overcome reason. These are not

24 informational ads, these are emotional appeals. How

25 should the First Amendment deal with those kinds of ads?
112

1 Let's just go down the panel.

2 So, Dan, you're up first.

3 MR. JAFFE: Well, first of all, I guess you have

4 to accept that theory.

5 MR. VLADECK: Right, I get to ask the questions.

6 MR. JAFFE: Right, which I do not believe you

7 can make that total generalization. But putting that to

8 those ads which some might agree are noninformational,

9 the only group that you would be concerned about would

10 be kids, it would seem to me, because they would not be

11 able to possibly deal with that issue, and that's why

12 parents, I guess, were created by God.

13 So, for the kids who are eight and nine years

14 old who can't fully understand the selling purposes of

15 advertising, some people say it's low or some people say

16 it's a little higher, parents are there to step in, kids

17 can't drive themselves to the supermarket or to the

18 quick service restaurant.

19 So, once you get past that, once you get to

20 where people do understand the selling purposes of ads,

21 the government should not be the national nanny, and the

22 person who steps in to decide for the public how to deal

23 with this information, which they're well able to deal

24 with on their own.

25 MR. VLADECK: I'm not sure I heard a First
113

1 Amendment theory there.

2 Marty, do you want to add some theory to Dan's

3 response?

4 MR. REDISH: Well, the reason that we protect

5 commercial speech is that we don't approve of government

6 engaging in paternalism through manipulation of

7 information and opinion. The very idea that government

8 can draw a distinction between what's informational and

9 persuasional necessarily implies that government has the

10 authority to protect citizens against the expression of

11 opinion that will unduly or improperly influence their

12 lawful choices.

13 If we're going to start making the assumption

14 that we're all something out of B. F. Skinner or that

15 we're all laboratory rats, the entire basis of the First

16 Amendment disappears. In the area of political speech,

17 I wouldn't dare think of allowing them to make those

18 choices. In the area of commercial speech, the same DNA

19 is going on. The same concern about government treating

20 us all as children.

21 So, the very idea that that distinction can be

22 drawn by the government is itself an affront to the

23 basic notion of individual choice that the entire First

24 Amendment, and indeed the democratic system, are

25 premised on.
114

1 MR. VLADECK: Well, there's some theory. Thank

2 you.

3 Tamara?

4 MS. PIETY: Well, I would say that under the

5 First Amendment, it's appropriate to regulate for

6 children's benefit, it is appropriate to be

7 paternalistic towards children. Children don't have the

8 faculty and are not accorded the sort of cognitive

9 development that adults are, and so it's not clear to me

10 why we haven't said that a long time ago.

11 Most of the autonomy arguments don't seem to

12 have very much purchase with respect to children, and

13 particularly very young children, but even older

14 children, and I think the work that Professor Yosifon

15 and many others, including Jon Hanson at Harvard and

16 others, have done, Cass Sunstern, Richard Thaler, have

17 illustrated for us that in many circumstances, there

18 isn't any neutral stance from which we can choose.

19 There's going to be somebody doing what they

20 call choice architecture, the question is do we, the

21 people, our elected representatives, make that choice

22 architecture, or do we want General Foods to make it? I

23 didn't elect General Foods, I don't have any say on the

24 board of directors of General Foods, and indeed, the

25 shareholders don't have much.
115

1 So, that's what my response would be.

2 MR. YOSIFON: I think that the problem is not

3 between informational and non-informational speech, I

4 agree with Professor Redish, it's conceptually

5 impossible, or very, very difficult to distinguish

6 between what is informational or noninformational, what

7 is informational, what is persuasive. The issue is

8 whether the speech is false and misleading or whether

9 it's truthful. Unless you want to eviscerate the false

10 and misleading dimension to the commercial speech

11 doctrine and say that even false and misleading speech

12 is protected, then I think the question is: are the

13 rhetorical appeals false and misleading?

14 Now, we have a doctrine of puffery in consumer

15 protection law, and that has creeped into constitutional

16 law, that says that when you have a magic clown, or

17 expressions of sexuality associated with a product, that

18 that's puffery, and it's not actionable as misleading

19 speech, because no reasonable person, no rational person

20 takes it seriously.

21 The $2 billion a year spent in advertising gives

22 the lie to that doctrine of puffery, and so my view is

23 that we need to take seriously what the social science

24 is telling us about what effects magical clowns have on

25 our perceptions of the consequences of consuming the
116

1 product.

2 MR. VLADECK: I'm not sure Professor Redish is

3 going to be any happier with having social scientists

4 make that choice than my colleagues at the FTC.

5 Let me change the question a bit. The Supreme

6 Court has never really decided, though, there's some

7 hints, perhaps in Lorillard, decided whether the

8 Commercial Speech Doctrine applies in full force when

9 you're dealing with advertisements directed at children.

10 Now, I want to put aside the Butler versus

11 Michigan, the roasting, the burning down the house to

12 roast the pig problem, when you have ads that are

13 directed both at children and at adults. But where the

14 ad is plainly targeted at children, not at their

15 parents, what are your views about what, if any, First

16 Amendment protection should be accorded to those ads,

17 because I assume, and you can take issue with this, I

18 assume you will take the position, as I think most

19 scholars do, that protecting the health and welfare of

20 children is a governmental interest of the highest

21 order.

22 It's to all of you.

23 MR. JAFFE: You go first.

24 MR. REDISH: It's an area on the frontier of the

25 First Amendment. When you deal with tobacco and
117

1 alcohol, it is unlawful for underaged individuals to

2 engage in those activities, so promotion to them, the

3 idea that they should take advantage of those products

4 would be a promotion of unlawful activity, and that's

5 absolutely outside of the First Amendment.

6 When you get to the area of cereals or other

7 kinds of food, it is not unlawful for minors to use it.

8 You have to remember that there still has to be an

9 opportunity for the parents to hear about it, and if the

10 ads are framed in certain ways that simultaneously

11 appeal to children and parents, the fact remains the

12 parents are going to be making the final decision.

13 I understand the concept of the nag factor, but

14 if you're a parent that gives in to anything your kid

15 nags about, obesity is only one of the problems you're

16 going to have, and the adults are making many of those

17 choices.

18 Now, there are First Amendment rights for

19 minors, not necessarily young children, but they could

20 wear anti-Vietnam War arm bands. There is a whole spate

21 of recent cases about regulations of video games which

22 have struck down restrictions aimed at minors. Where

23 the First Amendment outer limits are for minors above

24 the very young age has simply not been litigated fully.

25 MR. VLADECK: Tamara, do you want to go next?
118

1 MS. PIETY: Sure. Obviously, I think it is a

2 frontier. Certainly there isn't any good, I think,

3 theory that supports why we ought to permit that,

4 particularly to the extent that we have the evidence of

5 manipulation and we have, I think, a fair amount of

6 evidence of manipulation.

7 So, what value sets against this sort of idea is

8 not really the right to speak, and so I would just

9 object a little to what Mr. Jaffe said. It's not really

10 expression. It's the right to make Cheerios or Froot

11 Loops, and then if you make it, to sell it. You have to

12 market something, a lot of times, to sell it.

13 It's just like cigarettes are not illegal,

14 alcohol is not illegal, what we saw in the context of a

15 for-profit enterprise is that they will attempt to do

16 whatever they have to do to market that thing, even to

17 children, at the same time they're saying that they're

18 not marketing.

19 MR. YOSIFON: I think it must be frustrating for

20 non-lawyers in the audience to learn that there is no

21 Supreme Court doctrine directly on point. This often is

22 the case when you turn to an important problem in law.

23 You find that there is no law.

24 So, I would just say that I think that the only

25 thing I would add to the conversation is I think the
119

1 emerging challenge as courts are going to be required to

2 confront this problem is, again, the science that we

3 heard today suggesting that this radical distinction

4 that we would like conventionally to make between

5 children and adults or young children and adolescents

6 seems to be breaking down, and that what we're learning

7 is that the human mind, adults are subject to persuasion

8 and manipulation in many of the same ways that children

9 are.

10 So, I don't think that it's going to be easy to

11 come up with a doctrine that distinguishes children

12 radically from adults.

13 MR. REDISH: David, I have to ask you, would you

14 feel the same way in the political area? Because the

15 same dynamic is involved. So, is it okay to suppress

16 political speech on the grounds that it might

17 noncognitively influence people? I just want to see how

18 far you extrapolate your point.

19 MR. YOSIFON: I would rest provisionally on the

20 distinction that the Supreme Court has made between

21 political speech and commercial speech and say that

22 misleading and false political speech is entitled to

23 First Amendment protection, but misleading and false

24 commercial speech is not.

25 MR. REDISH: That's circular. I mean, I asked
120

1 you whether that distinction should be maintained, you

2 can't respond by saying there's the distinction.

3 MR. YOSIFON: Then I would retreat to the

4 hierarchy of First Amendment values and say that we have

5 a greater interest in the free flow of expressive

6 content with respect to social and political discourse

7 than we do with respect to commercial discourse.

8 MR. VLADECK: I want to give Dan an opportunity

9 to answer the last question and then I want to move on.

10 MR. JAFFE: One thing that I think is important

11 is that those who claim that this advertising is false

12 or deceptive are talking about the kinds of advertising

13 that is used in all product categories. It's colors,

14 pictures, illustrations. This is how advertising works,

15 and it seems to me to say that if we're going to start

16 saying that we can't have these ads to kids who can't

17 buy these products themselves, because they are the ones

18 who don't understand it, then you must be saying that

19 these ads have no significance to adults.

20 I think that's just wrong. I think doctrinally

21 wrong. So, you can't just get these nice little ideas

22 that there's these kids who are living off in this world

23 all by themselves without parents or without other

24 people who are making decisions from them and we are

25 going to protect them from themselves because they are
121

1 going to make the choice. They don't. Or they don't

2 unless the parents allow them to.

3 Therefore, the communication is both to children

4 and to adults, which is a very significant

5 doctrinally-protected area by the Supreme Court. That's

6 why they wouldn't allow, even in the tobacco area, or

7 the alcohol area, where these products would be illegal

8 for kids to be used to not allow that to be suppressed

9 so that adults couldn't see those ads.

10 MR. VLADECK: So, we are going to move on to

11 disclosures. You've mentioned the tobacco regime, and

12 Dan was critical of efforts to categorically suppress

13 speech. So, let's switch gears. Suppose the government

14 were to adopt the same kind of disclosure regime that

15 was adopted for tobacco. So, we would simply require

16 foods that were marketed principally to kids that were

17 high in fat, sugar, calories, sodium, to bear a warning

18 that said something like this: Consuming foods of this

19 kind contribute to obesity, Type 2 diabetes, heart

20 disease, and all sorts of other things. What does the

21 Constitution say about a disclosure regime like that?

22 Let's start with Tamara, because we're just

23 going down the line.

24 MS. PIETY: Well, I guess I'm not so much

25 concerned about what the Constitution says about a
122

1 disclosure regime like that because I don't think it

2 forbids it, as I am about how effective it would be, but

3 it's something we're looking at solutions, I think.

4 MR. VLADECK: Putting aside whether you think

5 it's efficacious or not, I just want people's view on

6 the constitutionality of a regime like that.

7 MS. PIETY: Particularly on the types of foods

8 that we're talking about, yes, I think it would be, but

9 I'm sure that there will be heated dispute.

10 MR. YOSIFON: I certainly think that it would be

11 permissible as well. Maybe that's a circular argument

12 as well to say that the Supreme Court would likely hold

13 that it's permissible, and this is not at all out of the

14 ordinary.

15 You can't market a security in General Mills.

16 You can't say that General Mills is going to make you

17 sexy and have magical powers if you buy stock in General

18 Mills. The government requires you under the securities

19 laws to give reams and reams of disclosures in

20 connection with that speech, requiring similar speech in

21 an area as important as food consumption as a security

22 investment I think isn't Constitutionally problematic,

23 but I guess I would put Professor Redish's question back

24 to him and say would your theory of the First Amendment

25 cause us to say that even misleading and false
123

1 commercial speech is protected?

2 MR. VLADECK: Let Dan get involved and then

3 we'll give Marty the last word on this one.

4 MR. JAFFE: I think there's two interesting

5 parts to your question. One, this type of disclosure

6 regime, I would assume, is not directed to kids, because

7 the question before that we had talked about how we have

8 to protect kids from non-informational images.

9 MR. VLADECK: The question did suppose foods

10 marketed to children, but I realize that that definition

11 may be problematic.

12 MR. JAFFE: But when you put the disclosure in,

13 I think what you're trying to do is to reach adults,

14 which is a perfectly legitimate sort of thing, but it

15 will be judged by the constitutional standard, does it

16 directly advance a material interest, the burden on the

17 government to show that.

18 MR. VLADECK: Is that your assertion that the

19 disclosures are required to meet the same test?

20 MR. JAFFE: I believe that any kind of

21 restriction on First Amendment speech, and I think the

22 Supreme Court has said this as well. If there is a

23 problem about the truthfulness of the ad, then you can

24 obviously do either disclosures or bans to take care of

25 it. If the ad is not false or deceptive, then if you're
124

1 going to regulate it under the Central Hudson test, the

2 test is very clear that you have to show that whatever

3 restrictions you're placing on that ad directly advance

4 your purpose in a narrowly tailored manner.

5 MR. VLADECK: Marty?

6 MR. REDISH: I suppose you could put a

7 disclosure that was aimed at kids specifically that said

8 warning: This product will make you fat, and if you're

9 fat, people won't like you.

10 MR. VLADECK: Or that you will die early.

11 MR. REDISH: No, they think they're immortal.

12 I don't think there's any doubt, and you

13 mentioned earlier that the Supreme Court, and we could

14 debate theoretically whether this is right or wrong, but

15 there is not much doubt that they have been much softer

16 on disclosure requirements or warnings than they've been

17 on direct restrictions, and the theory is, well now

18 we're giving more speech, more communication, so people

19 have even more information to make choices rather than

20 selective suppression.

21 There are still a couple of issues. One, is the

22 information in the warning considered accurate, and who

23 gets to make that choice is open to question. Two, this

24 is coming up under the new tobacco law, does the warning

25 take up so much of the packaging that it effectively
125

1 undermines the ability of the company to communicate.

2 I would like to say to David that referencing

3 the securities laws really doesn't get you very far,

4 because again, rightly or wrongly, the securities laws

5 have just been assumed to be outside the First

6 Amendment, and anything can be done in terms of

7 government regulation of the securities laws without

8 triggering the First Amendment. So, by that metaphor,

9 we would end up having no protection at all in any area.

10 MR. VLADECK: Well, I'm sure the SEC is now

11 relieved to hear that.

12 MS. PIETY: There are certainly some scholars

13 who say that.

14 MR. VLADECK: Last question, and then we will

15 open this up to the audience. One chip from the master

16 settlement agreement that was entered into between the

17 states and the tobacco, some of the tobacco companies.

18 One of the regulations that has been debated, some would

19 say it's been efficacious, some would not.

20 Suppose there was, and this would be

21 government-imposed, as opposed to voluntarily assumed,

22 but suppose there was a regulation that set a high

23 nutritional standard for foods advertised on TV were

24 more than a certain percentage of the audience, say

25 one-third, were children between the age of let's say
126

1 two and 11? Sort of roughly modeled on some of the MSA

2 provisions.

3 David, you go first on that one. Constitutional

4 or not?

5 MR. YOSIFON: Well, I think that, as Professor

6 Redish said, the Court has said that you can't reduce

7 the level of discourse for adults to that level which

8 exists in the sandbox. So, if a fifth or a third of the

9 audience is children, meaning that the majority of the

10 audience is going to be adults, I think that that would

11 be problematic, which is why I think that we need, from

12 my view, is that we need to be developing a robust

13 conception of the permissibility of regulating

14 commercial speech generally, rather than focusing in the

15 area of children, because I think that it's not

16 conceptually sound to do so.

17 MR. VLADECK: Dan?

18 MR. JAFFE: Well, to some extent, that was what

19 the Lorillard case is a question of how high you raise

20 the percentage.

21 MR. VLADECK: That's correct, yes.

22 MR. JAFFE: The Lorillard case said you couldn't

23 have advertising within a thousand feet of schools or

24 the perimeters of playgrounds, just for the same purpose

25 of trying to protect kids, and the Supreme Court clearly
127

1 thought that was not okay.

2 MR. VLADECK: Five-four, I'm not sure clearly is

3 the right adverb to use.

4 MR. JAFFE: The effective law as of now and we

5 will find out again because this is going to be tested

6 very specifically on the tobacco legislation that was

7 passed by the Congress this year.

8 My guesstimate is that you are always going to

9 be running into the problem of starting to restrict too

10 much speech to adults. So, if there's a preponderance,

11 a substantial preponderance of adults in the audience, I

12 don't think you could do that.

13 MR. VLADECK: Marty?

14 MR. REDISH: I think it's dangerous to start

15 using the MSAs as an analogy to the First Amendment,

16 because there's no doubt the tobacco companies in

17 exchange for valuable consideration were conceding some

18 of their First Amendment rights. Their First Amendment

19 rights I think go well beyond what they voluntarily

20 agreed to in the MSA.

21 What you're talking about is what I call the

22 dolphins and the tuna problem. How many dolphins are

23 you allowed to get in when you're collecting the tuna?

24 I think the Supreme Court in the Lorillard case, and I

25 don't know whether it was five-four or eight to one, Dan
128

1 was right, the opinion of the majority was very clear,

2 and that clearly is the controlling law and the four

3 dissenters can go off on their own, I suppose.

4 Basically what they said is there is an element

5 of proportionality that's involved. That the mere fact

6 that there are some children exposed to the ads doesn't

7 matter as long as the large majority of people being

8 exposed to the ads are adults.

9 MR. VLADECK: Tamara, you're going to get the

10 last word.

11 MS. PIETY: I think I would echo what Professor

12 Yosifon said. I really think what we need to be doing

13 is looking at commercial speech generally, but I also

14 would say that this is a very, very, very complicated

15 problem, it's a public health problem, you have to start

16 on the ground somewhere with something, and children and

17 the products marketed to children it seems to me a good

18 place to start.

19 That sort of metric that kind of says, well, if

20 you don't have enough children in the audience, then

21 maybe it can shift over into a different kind of

22 framework, I think highlights the real question that I

23 wanted to propose, which is what is the value here of

24 commercial speech? What's the value that we're giving

25 to those adults that makes it important enough to say,
129

1 okay, now we can't impose these kinds of restrictions.

2 So, and I think I don't have enough time to talk

3 about all the ways in which I think there are many

4 empirically, theoretically problematic assumptions, but

5 the principal one I think is this sort of assumption

6 about the rational person and the rational chooser.

7 MR. VLADECK: I promised to leave some time for

8 questions from the audience. We have about ten or 12

9 minutes.

10 JEFF CHESTER: Well, a far-reaching discussion,

11 I really appreciate you having this discussion. Dan

12 Jaffe described what I sort of call advertising 1.0.

13 What I would like the panel to talk about, reflect on,

14 is what David Britt and others talked about this

15 morning, that you have an entirely new system that's

16 really able to identify individuals, including children

17 and teens, in an invisible nontransparent way, profile

18 them by collecting lots of data in realtime, target them

19 in a myriad of ways, and in particular, use techniques

20 honed by neuroscience to directly affect them through

21 their subconscious and conscious minds in the words of

22 the advertisers directing it. What are the First

23 Amendment issues for the best kind of contemporary

24 digital marketing system? Thanks.

25 MR. VLADECK: Who wants to go first with that?
130

1 Dan, David? I mean, who?

2 MR. JAFFE: David, I will be glad to follow.

3 MS. PIETY: Well, I'll go first.

4 MR. JAFFE: Please.

5 MS. PIETY: Maybe because I don't think it's a

6 First Amendment issue, but I think the question is

7 really good for illustrating the question about market

8 research. It's a permissible activity, right, and is it

9 a speech activity? It's a business activity, but why

10 are we allowing children to be basically human subjects

11 in the research. I mean, we're doing research on human

12 subjects without any sort of control. It's not clear to

13 me why we would permit that generally, but with respect

14 to children, and I do not see a First Amendment issue.

15 MR. VLADECK: Who wants to go next? Does anyone

16 else want to respond? Because I wanted to refine the

17 question when you're done.

18 MR. JAFFE: Why don't you refine the question

19 now.

20 MR. VLADECK: Well, it seems to me that the

21 question that is embedded there is whether this is

22 advertising of the kind that Central Hudson is directed

23 at, or is this the kind of in-person solicitation that

24 really falls more closely into Ohralik/Primus, because

25 these are tailored comments, at least as I understood
131

1 the question, directed to an individual, and if that

2 conception is warranted, does it change the First

3 Amendment calculus? Marty looks like he's shrinking, so

4 I think we need to let Marty answer first.

5 MR. REDISH: The Ohralik case was about an

6 ambulance-chasing attorney who went into somebody's

7 hospital room and promoted himself for his services and

8 the individual was in an extremely vulnerable state.

9 MR. VLADECK: But remember, the case was paired

10 with Primus as well.

11 MR. REDISH: And Primus said that the First

12 Amendment does apply when it's a communication that

13 isn't quite in-person solicitation under those unique

14 circumstances.

15 First of all, my instinct is to think that the

16 language is too sweeping. That it's just as maybe the

17 rational model is oversimplistic, the idea that we're

18 all a bunch of automatons, I'm willing to bet, is overly

19 simplistic. The fact that they profile us, assuming

20 I've invaded some privacy rights, I don't find anything

21 wrong with, because they might know what we like and we

22 are allowed to make choices that way.

23 But most importantly, the danger is you're

24 proving too much. Because the exact same thing goes on

25 in the political process, and if we basically reject the
132

1 notion that individuals ultimately can make choices

2 about whom they want to govern because we've decided

3 that they're all just sheep, then we've basically thrown

4 out the whole concept of democracy. If we're not going

5 to throw it out in that realm, I don't see how we can

6 throw it out in this realm.

7 We can't say we're all sheep when it comes to

8 commercial ads, but that we're rational individuals when

9 it comes to political choices.

10 MR. VLADECK: Anyone else on the panel want to

11 add?

12 MR. YOSIFON: I just want to respond briefly and

13 say that the idea that we can't draw distinctions, even

14 with respect to constitutional protections, is in my

15 view foreign to our constitutional tradition. You're

16 not allowed to yell fire in a crowded theater. That

17 doesn't mean that the entire First Amendment goes out

18 the window. You're not allowed, as a lawyer, to solicit

19 business in person. That doesn't mean that therefore

20 there's no political speech. You're not allowed to lie

21 when giving testimony in a courtroom or to disrupt an

22 ongoing cross examination. That doesn't mean that

23 political parties can therefore be regulated.

24 We draw all kinds of categorical distinctions,

25 many of which no doubt we would universally agree are
133

1 acceptable. So, the very pursuit of categorical

2 distinctions I don't think is threatening to the

3 constitutional regime. We can argue about the wisdom of

4 where we draw those lines, but the pursuit of it is done

5 all the time.

6 MR. REDISH: But you're changing your empirical

7 assumptions about what reality is. Professor Yosifon

8 accused me in one of his articles about being obsessed

9 with consistency, and I guess I have to plead guilty to

10 that, and I can see why you wouldn't prefer a consistent

11 system, because you're being completely inconsistent

12 here. Either we are sheep or we're not. It's totally

13 different from the situations you're distinguishing.

14 These are situations where it's premised on a factual

15 assumption, and --

16 MR. JAFFE: I thought we were bringing light to

17 the situation.

18 MR. VLADECK: The prince of darkness.

19 MR. REDISH: I've been called worse. To make

20 that shift, I think is just blatantly inconsistent.

21 MR. VLADECK: One last comment and then we need

22 to get some of the other questioners involved.

23 MS. PIETY: I think that's a strawman, to say

24 either we're sheep or we're rational. Obviously we're

25 somewhere in the middle, and just like we have to draw
134

1 some lines in the Constitution, the lines that will

2 create us, Professor Redish has so eloquently described

3 as twilight zones, the fact that we can't think of in

4 advance every, something, a theory, that will decide

5 every case or every circumstance or easily put something

6 in one category or another doesn't mean that in the face

7 of a threat like this, that we shouldn't try to begin to

8 act in certain ways, and there may be places where we

9 get to some point where we say, all right, now this

10 seems to look like this is too much intervention, but it

11 seems like to throw up our hands and say we can't do

12 anything at all is also not the appropriate response.

13 MR. VLADECK: This gentleman has had his hand up

14 for a while.

15 MR. SILVERGLADE: Thank you, Bruce Silverglade,

16 Director of Legal Affairs at the Center for Science in

17 the Public Interest. I would like to just make a

18 comment and then pose a question to Martin. Very quick

19 comment, if you look at this from a level of 30,000

20 feet, the World Health Organization has made it very

21 clear that restrictions of children's food marketing of

22 high fat, high sugar, high salt foods is a top priority,

23 along with product reformulations, better labeling,

24 nutrition education, better school foods, better

25 agriculture policies, but restrictions on marketing from
135

1 the World Health Organization standpoint after working

2 with dozens and dozens of experts around the world

3 looking at hundreds and hundreds of studies have come

4 out with a formal policy calling for these kinds of

5 restrictions.

6 So, while we have an impassioned defense of the

7 First Amendment by Dan and Martin, it goes wholly

8 against public health policy around the world.

9 Second --

10 MR. VLADECK: Is there a question?

11 MR. SILVERGLADE: Here's the question: The

12 United Kingdom has instituted restrictions advertising

13 of high salt, sugar and fat foods to children under 16.

14 It's been in effect for two years. I haven't seen them

15 slide into totalitarianism, they are still a democracy

16 as I know.

17 MR. VLADECK: The panel is to address the First

18 Amendment, and the WHO and the British have not adopted

19 our First Amendment regime. So, is there a question?

20 MR. SILVERGLADE: The question, Martin, I'm

21 going to play reverse law school and give you a Socratic

22 question, if you pardon me, but is there any

23 hypothetical situation that children, a child under six,

24 watching a television show, directed to children, under

25 six, in a day care center where parents are not present,
136

1 where the advertisement is for a cereal consisting of 50

2 percent sugar by weight, is there any situation where

3 you can perceive that a restriction on that kind of

4 marketing would pass First Amendment protections?

5 MR. REDISH: Sure. Advertising that is

6 dominantly or predominantly aimed at really underaged

7 children who we have decided aren't at the stage that

8 can make those kinds of rational choices, I would have

9 no doubt about it, that would be okay.

10 MR. VLADECK: Does anyone disagree with that

11 answer?

12 (No response.)

13 MR. VLADECK: We have peace, finally. There's

14 one question at the end.

15 MS. CAMPBELL: Hi, this is Angela Campbell from

16 Georgetown Law. Professor Redish, you talked about in

17 the political context how the remedy for sort of

18 over-the-top advocacy would be more speech or counter

19 speech, but I don't see how that can work in the

20 commercial realm, because, unlike in the political

21 system where you have multiple parties, there really

22 isn't someone who has the counter advertising point of

23 view.

24 So, I guess the question for all the panelists

25 is, is there a remedy here that would involve more
137

1 speech rather than suppressing speech, and is the only

2 person that can do that the government? Does that raise

3 problems if the government does it, or are there other

4 ways to get different points of view and would that be

5 effective?

6 MR. JAFFE: Well, as I mentioned in my talk,

7 there is about a half a billion dollars worth of

8 expenditures by the Ad Council to talk about all sorts

9 of issues that deal with the question of obesity, and

10 how parents and children should respond to that issue.

11 Certainly the government should weigh in, and

12 unfortunately, they backed off because it was a VERB

13 program where they were spending I believe about $100

14 million a year and they could certainly increase where

15 they were talking about these issues.

16 So, I think that you can certainly get those

17 ideas in. I think what I find really surprising and

18 distressing is that no one believes that in this

19 marketplace, that if parents and the public at large

20 becomes concerned about obesity, that they will believe

21 that that will not start creating pressures in the

22 marketplace for companies to respond to that. In fact,

23 there has been that type of pressure, and 10,000

24 products have been reformulated to try to meet these

25 requirements. So, it's not as if the marketplace only
138

1 skews to hurting kids. If you listen to this discussion

2 today, that's what you would come away with. That's

3 just not an accurate picture.

4 The marketplace will respond to the legitimate

5 concerns of people. Corporations may not be people, but

6 they respond to people. That is how they make money.

7 Unless you feel that they're so manipulative that they

8 could just overwhelm the marketplace with ideas, they're

9 going to try to respond to the legitimate concerns of

10 people as they begin to discover them.

11 MR. VLADECK: Marty?

12 MR. REDISH: I'll just add that government, it

13 is well recognized that government has its own right to

14 speak and that government informational campaigns or

15 disclosure requirements or warnings on packaging are

16 perfectly permissible as a matter of free and open

17 debate, rather than selective regulation through

18 suppression.

19 MS. PIETY: I just want to echo this point about

20 the not being an effective source of counterspeech,

21 partly for commercial speech, because there's not an

22 effective place for a profit motive to drive some of

23 that, but I would support all sorts of solutions,

24 including more speech and industry solutions and

25 involvement from lots of different sectors. This is a
139

1 complicated problem and I think it probably has multiple

2 solutions.

3 But this idea that corporations respond, I also

4 want to say that I do not, I've been caricatured,

5 sometimes, I do not have anything against corporations,

6 I think corporations are great, but I think

7 intrinsically their structure makes them sort of

8 neutral. Like they have sort of amoral structure.

9 So, I don't think you can depend on them to

10 respond appropriately in every circumstance, and very

11 often the public has wanted these restrictions. It

12 said, please, don't advertise to our kids. Don't put

13 soda machines in the schools. Don't do this kind of

14 advertising. Don't call me at home at dinner, the

15 Do-Not-Call Registry. The industry has responded with

16 lobbying efforts to shut that down.

17 So, when the public wants a particularly

18 apparently paternalistic intervention that says, we

19 would like you to do this for us, because we cannot do

20 this adequately ourselves, it's systemic, that seems to

21 me not to be paternalistic, it's paternalistic in the

22 extreme to respond to that desire by saying, oh, no, no,

23 no, you really want us to pitch to your kids, you don't

24 know it, but it's good for them, it's good for them to

25 keep saying no, tough love, they'll be better for it.
140

1 Even though you say you want it, we're not going to take

2 you seriously.

3 MR. VLADECK: And I didn't ask for that pitch

4 for the Do-Not-Call Program.

5 David, you have the last word.

6 MR. YOSIFON: Well, I would just say that I

7 agree, it's certainly permissible, whether or not it's

8 efficacious I guess remains to be seen. More speech is

9 always desirable, but more listening isn't always

10 possible, and I think that legal scholars and this

11 country, our culture, our constitutional tradition, must

12 ultimately grapple with the reality that we have limited

13 cognitive capacity and we need to develop a conception

14 of the First Amendment that is consistent with that

15 biological reality, and the reality is that more speech

16 is not always possible.

17 MR. VLADECK: I want to ask everyone to join me

18 in thanking our panel for a very stimulating discussion.

19 (Applause.)

20 MR. VLADECK: Keith has some housekeeping

21 announcements to make quickly.

22 MR. FENTONMILLER: We'll take a one-hour lunch

23 break and reconvene at 1:30. Please take your

24 belongings and also keep your sticky badges. You will

25 have to go back through security. Thank you.
141

1 (Whereupon, at 12:30 p.m., a lunch recess was

2 taken.)

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 
142

1 AFTERNOON SESSION

2 (1:43 p.m.)

3 MR. FENTONMILLER: We're going to go ahead and

4 get started and hopefully the people winding their way

5 through security will filter in quietly and orderly.

6 Our next panel on self-regulatory initiatives is

7 going to be moderated by the associate director for

8 Advertising Practices, Mary?

9 MS. ENGLE: Good afternoon, everybody, I am Mary

10 Engle, the director of the FTC's Division of Advertising

11 Practices, and this first panel this afternoon is going

12 to take a look at some of the initiatives that the food

13 and media companies have taken of their own accord to

14 help improve the landscape of food marketing to kids,

15 both what's being marketed and how it's being marketed,

16 and we will also hear some critiques of some of those

17 efforts and some discussion about how well they may be

18 working.

19 The panel here today, I am just going to briefly

20 introduce them because you have the bios with you for

21 their full background. We have Dr. Dale Kunkel, who is

22 a professor of communication at the University of

23 Arizona, Dr. Margo Wootan, director of nutrition policy

24 at the Center For Science in the Public Interest,

25 Dr. Elizabeth Taylor Quilliam, who is assistant
143

1 professor at the Department of Advertising, Public

2 Relations and Retailing at Michigan State University,

3 Jennifer Anopolsky, who is senior VP of corporate

4 responsibility at the Walt Disney Company, Mary Sophos,

5 who is senior VP and chief government affairs officer of

6 the Grocery Manufacturers Association, and Elaine

7 Kolish, who is vice president and director of the

8 Children's Food and Beverage Advertising Initiative of

9 the Council of Better Business Bureaus.

10 So, we're going to start with Dale.

11 DR. KUNKEL: Thank you very much. Welcome back.

12 I don't have time for much context, but I want

13 to provide a very, very brief one here. As many of you

14 know, I served on the Institute of Medicine Committee

15 that was conducting a Congressionally-mandated study to

16 evaluate the role of food marketing as a possible

17 contributor to childhood obesity, and since I served on

18 that committee for about two years, I have a relatively

19 high degree of confidence in stating our conclusion, and

20 our conclusion was that food marketing is a significant

21 contributor to childhood obesity.

22 I heard some comments earlier today that I am

23 not sure are completely consonant with that, but it

24 absolutely is. It is a significant contributor. In

25 fact, I will read you very briefly our quote from that
144

1 report, it says, "Food marketing to children is out of

2 balance with a healthy diet and puts children's health

3 at risk."

4 Now, as a result of that, the Institute of

5 Medicine issued, as was mentioned earlier, a number of

6 recommendations, but there's one that I am critically

7 focused on, and that recommendation is if the food

8 marketing industry could not, within the near term,

9 reverse the predominance of low nutrient, high density

10 food products in marketing to children, that Congress

11 should regulate to achieve that goal.

12 The study I'm going to share with you today

13 holds the industry accountable for whether or not or

14 whether or not they have really achieved that with the

15 Children's Food and Beverage Advertising Initiative.

16 The data that I'm going to report here today was

17 gathered between February and April in a large-scale

18 study of monitoring of advertising on children's

19 programming, and so let's go directly to the results.

20 At the very first level, did the industry do

21 what it promised to do. Now, it didn't make one

22 promise, it actually made about 15 promises, while we

23 were studying the Initiative, there were 15 different

24 companies participating, each one has different

25 nutritional criteria, different standards, and pledges,
145

1 and so did they adhere to that? Did they do what they

2 said they would do?

3 Here's the simplest bar graph you will ever see

4 at any presentation. It says that 100 percent of the

5 advertising efforts by the pledge companies did comply

6 exactly with their promise. So, there is perfect

7 compliance with the pledge details.

8 So, that must be good news, and that must

9 resolve the problem. Well, I don't view it that way.

10 In fact, what I want to do, and what I do with this

11 study, is I conduct an independent nutritional analysis

12 of what this pledge program has accomplished in terms of

13 shifting the overall marketing landscape. What's the

14 nutritional quality of foods marketed to children under

15 this initiative?

16 So, the next thing we need to do is define

17 basically how we're going to conduct that analysis. You

18 heard from Secretary Sebelius this morning, the

19 Department of Health and Human Services has a food

20 rating scheme, it's a public information program to

21 inform American parents about what are the appropriate

22 foods to buy and feed to their families. It has three

23 categories, the first is "Go" foods that are healthy,

24 rich in nutrients and relatively low in calories. They

25 can be eaten any time. "Slow" foods, foods that have
146

1 some nutritional value, but are a little bit higher in

2 fat, salts and sugars, should only be consumed in

3 moderation. Finally, "whoa" products, products that are

4 high in fat, salts and sugar, pose the highest risk of

5 obesity, and should be eaten only once in a while, or on

6 special occasions.

7 So, I've analyzed, and this first slide here

8 reports data from a study I've previously published.

9 This is how the children's food marketing landscape

10 looked in the year 2005, that was before this

11 controversy had really mushroomed, that was before the

12 self-regulatory initiative began, and so you can see

13 this is the context that we started with. Nutritionally

14 poor food ads predominate. It's 84 percent of the foods

15 marketed to children on television are in this category

16 that says they're unhealthy when consumed in abundance.

17 Now, the next slide I'm going to show you is

18 actually the most important slide in the entire study,

19 because it documents what's the shift as a result of the

20 industry's Initiative. If the industry's Initiative was

21 as effective as we hope it would be, then that would be

22 a complete reversal, like a giant teeter-totter, the

23 "Go" percentage should shoot way up and the "Whoa"

24 percentage should shoot way down.

25 Let's see what we find. What we find is modest
147

1 movement in the desired direction. Very modest. The

2 proportion of foods that are rated in the poorest

3 nutritional category has diminished from 84 to 72 and a

4 half percent, but the conclusion is that nutritionally

5 poor foods still predominate. In fact, even though the

6 industry is complying with all their pledges, we now see

7 that roughly three out of four foods that are marketed

8 on television to children are in the "Whoa" category,

9 they should not be consumed on a regular basis.

10 Also note, on the far right side of this chart,

11 that "Go" foods are barely visible. Let's look at that

12 a little more closely with another slide.

13 This slide depicts what a child would see if

14 they watched ten hours of children's programming. In

15 ten hours of children's programming, you would see 76

16 food ads, 55 of those 76 would be for products in the

17 poorest nutritional category, 20 would be "Slow"

18 products, these are products that have some nutritional

19 value, but a child would have to watch ten hours of

20 children's programming before they would see one ad for

21 a healthy food product. The conclusion here is that

22 healthy food advertising is invisible.

23 Now, not all companies that advertise food to

24 children participate in self-regulation. This pie

25 depicts the distribution of the advertising environment
148

1 that's accounted for by self-regulation, it's roughly 70

2 percent, about 30, if you want to be technical, 29

3 percent here of the ads that appear during children's

4 programming are from non-pledge companies, so that means

5 that more than a quarter of the food ads that are airing

6 on TV to children are from non-pledge companies. All of

7 this advertising is not subject to any of the policies

8 or pledges that the CFBAI program employs.

9 So, the next thing that we want to do, then, is

10 we want to compare how do pledge companies look as

11 compared to non-pledge companies in their nutritional

12 profile.

13 So, what you see here, first, is the pledge

14 company, nutritional profile, now when we only look at

15 pledge companies, we see it's 68 and a half percent of

16 foods that they advertise are in the poorest nutritional

17 category, or a little more than two out of every three

18 ads. They have then the other third is "Slow" foods.

19 If you compare that to the non-pledge participants, the

20 non-pledge participants have a little higher proportion

21 of the unhealthy food products, and I'll bring those

22 bars together so you can see the comparison more

23 directly, 68 and a half to 82.9.

24 So, we can conclude that the pledge companies

25 are doing a slightly better job by showing a little bit
149

1 lower proportion of "Whoa" food ads, but they're still

2 showing two out of three ads for products that are in

3 the poorest nutritional category.

4 Finally, we want to deal with licensed

5 characters. Licensed characters, I know there are a lot

6 of people here from media companies, there are a lot of

7 people here from advertising companies that use licensed

8 characters to promote products to children. This is a

9 sensitive topic, and the reason why is young children in

10 particular have unique trust and they have a parasocial

11 relationship with characters like Sponge Bob and so

12 forth, and so these ads are particularly powerful.

13 So, what we want to see is are they being used

14 to market healthy foods to children, are they being used

15 to market poor nutritional quality foods to children.

16 One of the first findings that we see here is

17 that the use of licensed characters has actually

18 increased under self-regulation. The percentage has

19 nearly doubled from 2005 to 2009. I don't know, this

20 may well be a more widespread pattern across the ad

21 environment, but in that context, with an increased use

22 of licensed characters, then we've got to remember that

23 the Institute of Medicine recommended in its 2006 report

24 that licensed characters should only be used to promote

25 healthy foods -- not healthier foods than used to be
150

1 advertised, healthy foods.

2 What do we see in our data show that roughly

3 half of all of the ads featuring licensed characters

4 promote foods in the poorest nutritional quality

5 category.

6 In sum, the food marketing industry is

7 overweight, but they have chosen a diet that won't lose

8 the pounds the doctor prescribed. Removing a small

9 proportion of the sugar and calories in a cookie or a

10 cereal product doesn't make it a healthy choice, no

11 matter what label the industry chooses to invent, such

12 as the so-called better-for-you foods, or what

13 nutritional standards are applied. Whether the count is

14 1.6 or 10, the industry is spending billions of dollars

15 to entice children down the path toward obesity. It's

16 outrageous, and it can't be allowed to continue.

17 As Senator Tom Harkin said in his statement

18 about my study in a press release yesterday, "When

19 private interests work against the public good,

20 government is obliged to act. It's past time for the

21 Federal Trade Commission to size things up and it's time

22 to get moving on a real solution. At the present rate

23 of reform, we'll have unhealthy food advertising off of

24 the airwaves by 2033. We can't afford to wait that

25 long."
151

1 Thank you.

2 (Applause.)

3 MS. WOOTAN: Great. Well, Dale, I'm glad you

4 put some context to everything, because with only ten

5 minutes, I'm just going to cut right to it. Is

6 self-regulation working? Unfortunately, the answer is

7 clearly no. As a mom, looking at what's marketed to my

8 child and other children, and as a public health

9 professional doing studies looking at what's being

10 marketed to kids, clearly as self-regulation is

11 currently being practiced, self-regulation is not

12 working. Still the overwhelming majority of products

13 that are marketed to kids are still for foods that are

14 unhealthy, too high in fat and salt and sugars with not

15 enough key nutrients.

16 So, one of the key problems with the current

17 self-regulatory system is that not all companies belong,

18 that a number of food manufacturers have joined the

19 CBBB, Children's Food and Beverage Advertising

20 Initiative, but many food manufacturers are still

21 missing. A number of key manufacturers that market

22 their products to kids.

23 Also, restaurants are not doing so well.

24 Actually, the food manufacturers are doing much better

25 than restaurants. So far, only two restaurant chains
152

1 belong to the CBBB initiative. Entertainment companies

2 are doing even worse.

3 Now, one thing that companies are telling us is

4 that we don't market to kids, so we don't need a policy.

5 So, some companies that we've approached and encouraged

6 them to join the CBBB initiative have said, no, we don't

7 market. It's true that most of these companies, though

8 not all of them, don't advertise during children's

9 television, but that doesn't mean they don't market.

10 They still are doing lots of other kinds of marketing.

11 They have children's menus, children's meals, birthday

12 clubs, they have advergames on their website, whole

13 children sections. They have programs like the Book-It

14 Program and other promotional programs in school. They

15 have branded fundraisers in schools. They're marketing

16 to kids in lots of other ways.

17 So, even if a company doesn't advertise on TV

18 doesn't mean that they shouldn't have a policy, and many

19 of these companies are not doing their part.

20 As I mentioned, entertainment companies are

21 particularly missing in action, where entertainment

22 companies have done the most is in setting nutrition

23 standards for the use of their licensed characters, and

24 a number of the big companies have. A few other

25 companies have gone further, like Qubo, which has a
153

1 comprehensive policy with nutrition standards for all

2 their marketing to kids. Other companies are in

3 between, maybe covering some aspects of their marketing,

4 but it's essential for the entertainment companies to

5 have policies that cover not only the use of their

6 licensed characters, but all of the ways that they are

7 communicating with kids about food, through television,

8 first and foremost, radio, magazines, their websites and

9 all the other innovative ways that they are marketing to

10 kids.

11 The companies that do have policies generally

12 are covering the traditional media. They have policies

13 for television and radio and print, for the food and

14 restaurant companies, but still, there are a number of

15 the ways that they are marketing to kids aren't covered.

16 I gave a few examples here, policies tend to be weaker

17 for on-package promotions, many companies don't have

18 policies at all for on-package marketing.

19 In schools, marketing through toys, like this

20 Pizza Hut toy set here, through the use of company

21 logos, product names and other branded information on

22 T-shirts and cereal bowls, and new media, as we heard

23 about this morning, from Dr. Montgomery, cell phones and

24 social networking. There are lots and lots of ways that

25 companies are reaching out to children, encouraging them
154

1 to eat their products, but many company policies fall

2 short in covering the full range of the media that they

3 are using.

4 On-package marketing is particularly

5 problematic. A few companies have good policies, but

6 many policies are weak in this area, and there's lots of

7 on-package marketing. Not only the use of licensed

8 characters, but the company's own equity characters,

9 contests, games, promotions of their websites, toy

10 give-aways, you know, often times on-package marketing

11 involves many different types of marketing on just a

12 single item.

13 Policies on food marketing in schools are

14 particularly problematic. One of the reasons for this

15 is that many of the food companies are using the bare

16 minimum principles that are laid out in the CBBB

17 Children's Food and Beverage Advertising Initiative.

18 While CFBAI does ask companies to limit certain types of

19 advertising in school, it seems to me that its program

20 has more holes than it has covering different kinds of

21 marketing.

22 This is hard to read, but you can see there are

23 some types of direct advertising, like posters or tray

24 liners or branded curricula that aren't allowed under

25 the CFBAI program, but there's lots of other ways that
155

1 companies can still market in elementary schools. The

2 exterior of the vending machines, menu boards, branded

3 displays. Some things don't even make any sense, like a

4 tray liner can't be used to market a product to kids

5 unless you also happen to sell that product in schools.

6 So, if you're selling the junk food in schools, it's

7 okay to also market that product in schools.

8 So, this framework for self-regulation in

9 schools has no chance of being successful, given what's

10 covered and what's not covered. Equally problematic, it

11 only applies to elementary schools, it doesn't apply to

12 middle and high schools, and I think most companies have

13 agreed that schools are a special space where kids need

14 additional protections. I think a lot of parents have

15 more trouble feeding their kids healthfully as they get

16 older in middle and high schools.

17 Now, some companies' policies limit the

18 marketing of all their products. So, certain companies

19 have agreed not to advertise any of their products to

20 children, in the way that they define advertising and

21 marketing. Most other companies set nutrition standards

22 for what they will and won't market to children. The

23 companies generally have pretty good standards for

24 saturated fat, trans fat and portion sizes or calories,

25 but the policies are not as strong for sodium, for
156

1 sugars, and also ensuring that the food contains some

2 positive nutritional benefit. That the product is not

3 only devoid of the bad stuff, but also provides some

4 positive nutrition to the children.

5 Now, if you look at these standards, and we have

6 this huge grid on our website with all these different

7 nutritional standards, it's very complicated to try to

8 keep track of which company has which standards. But

9 there's a lot of similarities between them, but if you

10 look closely, there are a lot of strategic weaknesses,

11 or loopholes.

12 So, for example, a number of the cereal

13 manufacturers have weak sugar standards, but pretty good

14 sodium standards, whereas McDonald's has no sodium

15 standard, but great sugar standards.

16 So, if you look at these standards, you see what

17 some of the problems are. One of the key reasons why

18 Dale and others are finding so many ads for foods with

19 poor nutritional quality are these strategic differences

20 between the companies' nutrition standards.

21 So, we did a study recently, and we looked at

22 all the products that CBBB-participating companies had

23 approved as appropriate to market to children, and we

24 used the list that was available in January of 2009. We

25 compared those against a single nutrition standard, the
157

1 one that the Center for Science in the Public Interest

2 has developed. We found that 60 percent of the

3 company-approved products did not meet our nutrition

4 standards, because of these weaknesses in the standard.

5 So, one key problem is the lack of a consistent

6 nutrition standard, which the FTC recommended last year,

7 and which many advocates have been calling for, that

8 having a single strong nutrition standard would change

9 what's marketed to kids quite a bit.

10 We look forward to hearing what the Interagency

11 Working Group on Food Marketed to Children has to say

12 about this. We hope it will provide a good model for

13 companies to follow.

14 We also have done a study looking at doing a

15 content analysis, looking at how self-regulation has

16 impacted what's advertised to children on Nickelodeon,

17 and I think it's remarkable, Dale, that Dale and I came

18 at this with different nutrition standards, different

19 approach, different sample, and we found almost the same

20 thing, that between 2005, before the self-regulatory

21 program, and 2009, after most of the pledges had been

22 put into place, we did find a modest decrease in the

23 number of ads for unhealthy foods on Nickelodeon. But

24 that effect was very modest. Very modest.

25 So, in 2005, about 90 percent of the ads were
158

1 for foods of poor nutritional quality, and in 2009, it

2 went down to 80 percent.

3 So, it's good to see some progress, that gives

4 me some hope, but it's clearly not enough progress,

5 given the magnitude of the obesity problem, and just

6 generally children's poor diets.

7 So, I'll just sum up by making some

8 recommendations. I think that self-regulation can work.

9 I know Elaine is feeling like I'm no longer the

10 supporter of the CFBAI, but we see there's some

11 infrastructure, there's some promise, there's some hope,

12 but it's not playing out in the marketplace. I mean, I

13 really feel like as a mom I've hardly seen any

14 difference in what's being marketed to children, but I

15 think with some changes, that it could be much stronger.

16 One thing is that all companies need to have a

17 marketing policy. Food and beverage manufacturers,

18 chain restaurants, entertainment companies, anyone who

19 is talking to kids, marketing to kids, promoting food to

20 children. Those marketing policies need to cover all

21 their marketing, and not just TV, not just traditional

22 media, but any way that the companies are talking.

23 Entertainment companies, particularly, need to do more,

24 it's not enough to just cover licensed characters, we

25 need to cover full range.
159

1 Companies need to have a strong definition of

2 what they consider to be kid-directed marketing, that

3 there's a lot of differences between companies. We need

4 for companies to adopt a common set of nutrition

5 standards, and I would encourage all companies that are

6 marketing to children to join the CBBB's Children Food

7 and Beverage Advertising Initiative. This does provide

8 an infrastructure that if you look at the policies of

9 different companies, the companies that belong to the

10 CFBAI have clearer, stronger policies. For

11 policymakers, for parents, for advocates, it's nice to

12 have them all in one place. For some companies, it's

13 impossible to track down what they're actually doing.

14 This way, it's right on Elaine's website. If I have a

15 question, I can bug her, which I do all the time. What

16 does this mean, this doesn't seem to fit. They are

17 doing some monitoring. It would be very helpful to set

18 up a track within the program for entertainment

19 companies, so that there could be the same kind of

20 monitoring and accountability and availability of the

21 policies.

22 So, I think with these changes, perhaps

23 self-regulation can work, but right now, it isn't, and

24 this needs to happen in a reasonable time table. I feel

25 like we first called on companies to be responsible
160

1 marketing to kids a long time ago. For Mike, it was 40

2 years ago, for me it was about ten years ago. We came

3 out with our guidelines for responsible food marketing

4 about five years ago. We did our first more recent big

5 report on food marketing about seven years ago.

6 Companies have had a long time. Given the magnitude of

7 these problems, we can't wait ten more years to let

8 self-regulation work.

9 I think advocates are getting restless, and if

10 something significant doesn't happen in the next year or

11 two, I think we're going to be going to Congress and to

12 regulatory agencies to look for the government to fix

13 this problem if companies can't.

14 Thank you.

15 (Applause.)

16 MS. QUILLIAM: Good afternoon. I'm Liz Taylor

17 Quilliam from Michigan State University. I would like

18 to thank the FTC for inviting me to participate. I'm

19 very honored to be part of this panel.

20 I'm going to be talking about one specific

21 marketing technique that Margo mentioned and that Dick

22 Mizerski talked about this morning, and that's

23 advergames, which Dick identified as a type of masked

24 marketing. The study that I'm going to report was

25 conducted with some of my colleagues at Michigan State,
161

1 Drs. Mira Lee and Richard Cole, who are with me here

2 today, and Mikyoung Kim. Our data was collected earlier

3 this year, spring and summer of 2009.

4 I will first discuss briefly what are

5 advergames, in case you aren't familiar with the term,

6 and talk about how they can persuade children. Then

7 I'll look at two specific pertinent self-regulatory

8 guidelines the food industry has that apply to digital

9 interactive online games, and what we found in our

10 study.

11 Advergames are defined as branded custom casual

12 interactive games. A key factor that identifies an

13 online game as an advergame is that it incorporates some

14 type of brand identifier. That could be an

15 advertisement as a billboard in the background of a

16 game, a brand trade character used in the game, pictures

17 of products, packages, the food itself, sometimes as

18 tools that are used by the game players or as items that

19 need to be collected to earn points and advance in the

20 game.

21 So, here, for example, you see the Postopia

22 website as a portal to enter a number of different

23 advergames. This is a screenshot of one particular

24 game. I would have put the game up to play it, except

25 that I am not any good at it at all. Young kids are
162

1 much better at playing these type of games than old

2 folks like me.

3 But in this game, we see Lucky Leprechaun, the

4 trade character for Lucky Charms cereal, and the

5 objective of the game is to help Lucky collect as many

6 mini charms as possible. The more mini charms Lucky

7 collects, the more points that the game player earns,

8 and the higher the game player advances. It also is

9 explicitly tied into the brand and to the product,

10 because on the entry page to this game, there's a

11 picture of the package with instructions to the game

12 player to enter a code from the package in order to get

13 a bonus.

14 Now, the charms, the tokens, that Lucky is

15 collecting, look just like the marshmallow candies in

16 the cereal. So the more marshmallow candy icons that

17 are collected, the better the player does in playing the

18 game. As you can see by this example, kids get actively

19 engaged with the brand while they're playing.

20 What we know of advergames from prior research.

21 First of all, several studies have identified how

22 prevalent these games are, including one of our earlier

23 studies that was published in the Journal of Consumer

24 Affairs earlier this year. Advergames are used

25 extensively to promote food products to children, and in
163

1 those previous studies, which predate the Initiative, we

2 found, as did others, that the majority of the food

3 advergames promoted foods that were high calorie, low

4 nutritional value.

5 They also integrated brand identifiers as active

6 game components, allowing children to virtually play

7 with the food products in the game. There have also

8 been a couple of studies, we heard one in detail this

9 morning, that showed that advergames can influence

10 children's food preferences and choices, and this goes

11 for healthy as well as unhealthy foods. In fact, the

12 Pempek and Calvert study showed that children who played

13 a game with a more healthy food were more likely to want

14 that food choice.

15 How do advergames influence children and why do

16 they matter? Well, they have the potential to be

17 particularly persuasive, especially for children that

18 have difficulty distinguishing between entertainment and

19 advertising. Because these games actually combine the

20 two. So, the distinction that we would normally see

21 between a television program and a commercial is more

22 difficult to identify in an advergame.

23 That leads to the first self-regulatory

24 guideline that we thought was of interest in this

25 particular environment, the Children's Advertising
164

1 Review Unit guideline directly references this by

2 calling on advertisers to make sure the children know

3 their interactive games are advertisements.

4 The second guideline of interest is in the

5 Initiative, with respect to interactive games, that

6 Initiative companies will incorporate either products

7 that represent healthy dietary choices, or healthy

8 lifestyle messaging in their games.

9 We thought it would be reasonable to expect,

10 then, that the Initiative companies would be

11 significantly ahead of other companies with respect to

12 their performance of these particular guidelines. So,

13 we conducted a study and compared Initiative and

14 non-Initiative company performance. We looked at the

15 number of food advergames, we looked at whether the

16 games contained or were preceded by advertising

17 disclaimers. We looked for healthy lifestyle messaging,

18 and using external nutrition standards we also examined

19 the proportion of healthy versus unhealthy foods that we

20 found in advergames.

21 Finally, for the Initiative companies only, we

22 wanted to find out whether there were better-for-you

23 products or not. Clearly the non-Initiative companies

24 have no better-for-you products lists to explore.

25 To do this, we located 446 games on the websites
165

1 of major food manufacturers, fast food restaurant and

2 family restaurants. There is no list of advergames nor

3 a comprehensive list of websites targeted to children.

4 Since we looked at the entire landscape, we applied the

5 same decision rules to both Initiative and

6 non-Initiative companies in identifying games on

7 websites.

8 We took a random sample of half of those 446

9 games for our analysis, and after we eliminated

10 non-advergame activities, things that weren't

11 interactive, or that didn't have brand identifiers in

12 them, we also eliminated games that were not available

13 for the whole duration of our study. Some of the games

14 were when we started, but were not by August. Games

15 that clearly targeted adults. We took those out and we

16 ended up with a sample of 146 advergames.

17 We gathered nutrition data from the nutrition

18 facts labels and applied the nutrition standards for

19 foods in schools guidelines that Jennifer Harris uses in

20 a study published earlier this year.

21 What we found with respect to disclaimers is

22 that the Initiative companies were, in fact,

23 significantly more likely to indicate that their

24 advergames were advertising, but that was only 63

25 percent of the games that we studied. So, there were
166

1 still a third of the games that did not have advertising

2 disclaimers.

3 We also found, overall, that only 37 percent of

4 the advergames we studied included explicit healthy

5 lifestyle messaging, and there was no significant

6 difference between the companies.

7 When we looked at the list, the published list

8 of better-for-you products and healthy lifestyle

9 messaging in Initiative company games, we found that 30

10 percent of the games featured better-for-you products

11 only, another seven and a half percent had healthy

12 lifestyle messaging, 16 and a half percent had both.

13 But that still left, as you can see on the bar, nearly

14 half of the games that we studied without either healthy

15 lifestyle messaging or better-for-you products.

16 Now, the base for these were games that had

17 identifiable products. So, if it was only an umbrella

18 brand, that's not included. We were only looking

19 specifically here at the products.

20 When we applied the nutrition standards for

21 foods in schools, we found that 83 percent of the

22 identified food products would be unhealthy, 36 percent

23 high in sugar, next highest was fat, also high in sodium

24 and calories. We found a significant difference here

25 between Initiative and non-Initiative companies, but in
167

1 the opposite direction of what we expected. We found

2 that Initiative companies had healthy versus unhealthy

3 foods in just under 12 percent of their games, where the

4 non-participating companies had about a third of their

5 games with healthy food products.

6 So, quick recap, since I have one minute left.

7 CFBAI advergames were more likely to include a greater

8 proportion of unhealthy versus healthy foods. That

9 better-for-you products and healthy lifestyle messaging

10 were not present in about half of their advergames, but

11 we did find that the four companies that pledged to

12 refrain from advertising directed to children did not

13 have games targeted to children with unhealthy food

14 products. Also, we did find that the Initiative

15 companies were more likely to identify the games as

16 advertising.

17 Our conclusions pretty much mirror what you've

18 just heard from Dale and Margo, that where there has

19 been some progress, there are still some substantial

20 gaps, at least with respect to online games. We would

21 like to see some standardized definitions of media

22 directed to children, particularly with websites. Short

23 of purchasing syndicated data or getting proprietary

24 data from the companies, there's no way that we know

25 other than our type of content analysis to find out what
168

1 games are available for children online, and similarly,

2 this huge variety of nutrition standards in the

3 better-for-you products area makes it very difficult for

4 not just scholars, but for parents as well to understand

5 what is the content of those products that children are

6 virtually playing with in the games.

7 So, in summary, we found no clear evidence that

8 interactive online games are promoting healthy dietary

9 choices or healthy lifestyles.

10 I would like to also give special thanks to the

11 W. K. Kellogg Foundation for their grant to help fund

12 part of this research, and to our research assistants

13 and the Federal Trade Commission. Thank you.

14 (Applause.)

15 MS. ANOPOLSKY: Hi, I'm Jennifer Anopolsky from

16 The Walt Disney Company. I want to thank you for having

17 me here today to provide an update on our efforts to

18 promote healthier lifestyles for kids and families.

19 You've heard a lot today from other people about

20 what the media and entertainment industry has done or

21 hasn't done, and I'm pleased to be able to tell you what

22 we're doing at Disney, personally.

23 Children have always been at the heart of what

24 we do at the Walt Disney Company, we care about them

25 deeply, and this is an area that we care very much
169

1 about.

2 I last addressed this group in 2006, when Disney

3 made a pioneering commitment to associate our brands and

4 characters with a healthier and more nutritious

5 portfolio of foods, and at the time we also announced

6 industry-leading nutritional guidelines to ground our

7 efforts.

8 So, today, what I would like to do is to provide

9 an update on our progress. I think what you will see is

10 that we have come a long way by applying what we do best

11 at Disney. Our best strength and our best creativity to

12 this area. We also know that there's still so much more

13 that we can do as a company as part of our long-term

14 commitment, and that there's much more that the industry

15 can do overall.

16 First, a refresher on our nutritional guidelines

17 that have helped transform how our Disney characters are

18 used on food products. They were developed with the

19 help of top health experts Dr. Keith Ayoob and Dr. Jim

20 Hill, and they are based on the USDA's Dietary

21 Guidelines for Americans. They are organized by key

22 meal occasion, and include specific limits for calories,

23 fat, saturated fat, sodium and sugar per portion, per

24 meal occasion. At the time, we also committed to zero

25 grams added trans fat across the board.
170

1 Now, I'm pleased to report that the guidelines

2 that we announced in 2006 are now rolled out globally,

3 not just in America, but in all the markets where Disney

4 does business around the world.

5 So, here I want to show you just a few examples

6 of some of our everyday foods that are in the market now

7 that meet our guidelines. From low-fat dairy, you will

8 see up there some yogurt and some milk, to fruits and

9 vegetables. These are now widely available and are a

10 really easy choice for parents and kids to agree on. We

11 are really proud to have brought these new food

12 solutions to market, and to families, to help them eat

13 better at home.

14 I'm also pleased to tell you that we have

15 reached a really important goal that we announced back

16 in 2006, and now ordinary food items like that that meet

17 our guidelines account for 85 percent of all our Disney

18 branded foods that are in the marketplace. That was a

19 big milestone. The remaining 15 percent includes items

20 such as birthday cakes and seasonal sweets and treats

21 and things like that that families expect Disney to have

22 in the marketplace as they celebrate special occasions

23 as a family.

24 Across all of the food items, our everyday foods

25 and our treats, we have phased out added trans fats
171

1 across the portfolio.

2 Now, fruits and vegetables have been a really

3 big focus for us and there are now more than 80

4 varieties of Disney-branded fruits and vegetables in the

5 marketplace, such as the ones shown here. They are

6 available at price parity to other produce in the

7 market, and just in 2009, we've sold more than half a

8 billion servings of fresh fruits and vegetables in the

9 U.S. Considering that we were not even in this business

10 five years ago, it's pretty extraordinary. These types

11 of items are really being purchased by average families

12 across the board.

13 Now, most of you should be able to find these at

14 your local grocery store, but one of the things we're

15 doing now is really focused on broadening distribution

16 even further.

17 In our parks and resorts, the focus has been a

18 little bit different, and here our approach has been to

19 make healthier eating options more available and

20 appealing throughout the Disney park and resort

21 experience. So, back in 2006, we announced that our

22 standard kids meal program would be changing. So, you

23 know the typical kids meal out there in the marketplace

24 typically includes fries and a soda as a side and

25 beverage. Since 2006, we have changed our program, and
172

1 our bundle kids meals all come with a healthy side dish,

2 like a fruit or vegetable, and either juice, water or

3 milk to drink. That's the default. If you don't ask

4 for anything else, that's just what it's going to come

5 with. The program has been really successful and we

6 have rolled that out globally as well.

7 Throughout our parks and resorts, we have also

8 made healthier snack foods, like you see, the fruit

9 stand here, much more widely available and appealing to

10 our guests. As well as adding new healthy snacks such

11 as the fruit and nut snack that you see there, all in

12 resealable containers that make it really easy for our

13 guests to have a small snack and save the rest for

14 later.

15 Turning now to our media networks, as you may

16 know, Disney Channel is a commercial-free platform, but

17 it does accept some brand sponsorship messaging from

18 both non-foods and also foods that meet our very same

19 guidelines that I mentioned earlier. Pre-existing

20 contracts notwithstanding, any contracts we had before

21 we announced the guidelines may still be in place.

22 On our other kids media outlets, we accept

23 regular advertising from a variety of food and non-food

24 products that comply with our regulatory standards and

25 practices.
173

1 Now, on the media side, as a broader

2 industry-wide issue, we continue to expect things to

3 evolve in this area. As different efforts are made by

4 food marketers and grocery manufacturers and the BBB

5 food pledge will all continue to evolve and that will

6 also have an impact on what's shown on our airwaves. Of

7 course we will also continue to follow the guidelines

8 from the Children's Advertising Review Unit.

9 Turning now to our programming, we know that our

10 Disney characters can have a really positive influence,

11 and we really do make a concerted effort to use our very

12 best talent to promote a range of pro-social topics. If

13 you've been watching Disney Channel lately, I'm sure

14 there are many parents in the audience, you may have

15 seen something called Disney Friends For Change, with

16 messaging that helps kids help the environment. Or

17 maybe you've seen an episode of Handy Manny that

18 reinforces healthy habits for preventing the flu this

19 season. Coming soon in January, we will be debuting a

20 new campaign that's in development right now with Common

21 Sense Media that focuses on online safety. These are

22 things that we do all the time and maybe you don't see

23 them.

24 So, what I wanted to do is share with you some

25 of the healthy lifestyle messages that are on our
174

1 airwaves, they've been on for many years, and they tend

2 to not get reflected in advertising studies such as

3 you've heard about earlier today from Dale, because they

4 don't run during commercial time. They run during our

5 programming time. Because Disney Channel tends to get

6 excluded from those things because we're not a regular

7 advertising network.

8 So, just a quick sample that I would like to

9 share with you.

10 (Whereupon, the Disney announcements were played

11 before the forum.)

12 MS. ANOPOLSKY: So, content like this that

13 features our top talent, like the Jonas Brothers, is a

14 really important contribution, and it's one we're really

15 proud to make. I hope you enjoyed watching that.

16 We also work with groups like the Ad Council to

17 promote healthy lifestyle education for families, and I

18 want to show you a recent example from one campaign.

19 (Whereupon, the Ad Council campaign was played

20 before the forum.)

21 MS. ANOPOLSKY: So, I've been asked to keep my

22 remarks brief, so to learn more about what we're doing

23 in this area, or to see more of our content, you can

24 find it online at our corporate responsibility report at

25 disney.com/crreport.
175

1 In closing, I want to thank all of you for

2 taking interest in our progress as a company, and for

3 inviting us to share and update on the work that we've

4 been doing. At Disney, we will continue to promote good

5 nutrition and healthy lifestyles to kids using our very

6 best talents and abilities, and we look forward to

7 reporting back to you.

8 Thank you.

9 (Applause.)

10 MS. SOPHOS: Good afternoon, I'm Mary Sophos,

11 with the Grocery Manufacturers Association, and I'm

12 delighted to be here this afternoon to provide an update

13 on the advertising trends since our last report at the

14 FTC Forum, and to discuss some very promising

15 initiatives that we're taking in schools, in the

16 workplace, in the marketplace and the media that we

17 think will make a very positive contribution to our goal

18 of reversing the trends in childhood obesity.

19 First, let me quickly highlight some of the

20 findings in our report on advertising trends, and these

21 are based on Nielsen data that we've been tracking since

22 2004. As you can see, overall advertising viewed by

23 children, whether on kids TV or all TV, has declined in

24 2008, just as it did in 2007. In 2008, on children's

25 TV, the typical child saw 14 percent fewer food and
176

1 beverage ads, and eight percent fewer food, beverage and

2 restaurant ads.

3 This is a decline that began in 1977, and from

4 2004 to 2008, children viewed 31 percent fewer food,

5 beverage and restaurant ads on children's programming,

6 and 15 percent fewer on all TV.

7 The second noteworthy thing about these trends

8 is the continuation of the shift and mix of products

9 advertised. As you can see, soft drinks, both regular

10 and diet, have disappeared almost entirely from

11 children's TV. Sugared fruit drinks advertised on

12 children's TV have declined by almost 50 percent. On

13 the other hand, fruit and vegetable juices have

14 increased over 150 percent, albeit from a very small

15 base. This same trend is observed for bottled water,

16 both in advertising seen by kids on children's TV, and

17 on all TV.

18 The shift and mix continues with significant

19 declines in categories, including cookies, snack bars,

20 candy, gum and mints. In the case of cookies and snack

21 bars, the decline is over 80 percent on children's

22 television.

23 In terms of meal components, we are seeing

24 declines in categories such as frozen pizzas, breads,

25 pastries, waffles, pancakes, cereals and oatmeal, we are
177

1 seeing increases in other categories such as entrees,

2 soups and fruits and vegetables. Again, while the

3 fruits and vegetables category starts from a very small

4 base, the increase is over 150 percent.

5 We are also reporting on advertising viewed by

6 teens. Teens view 28 percent fewer food and beverage

7 ads in 2008 than in 1994. Although ads viewed did

8 increase slightly from 2007 to 2008, by 2.4 percent.

9 Similarly, teens viewed eight percent fewer

10 food, beverage and restaurant ads since 1994, while they

11 viewed 7.3 percent more ads in 2008 than 2007.

12 Importantly, the same shift in product mix that

13 we're seeing in the ads viewed by kids under 12 is

14 occurring in ads viewed by teens, particularly with

15 respect to the declines in ads for soft drinks.

16 Again, you can see the same kind of declines for

17 teens in cookies, snack bars, snacks and candy, and a

18 slight increase for gum and mints. Again, the same

19 basic trends and shifting of the mix of products, frozen

20 pizzas down, fruits and vegetables up. As we reported

21 last year, television still represents the lion's share

22 of paid advertising.

23 I want to talk a little bit about some of the

24 efforts that the industry is undertaking with the many

25 stakeholders who will be critical to achieving our goals
178

1 and reversing the trends in childhood obesity. In

2 October, more than 40 retailers, nongovernmental

3 organizations, and food and beverage manufacturers

4 launched the Healthy Weight Commitment Foundation, a $20

5 million national multi-year effort designed to help

6 reduce obesity, particularly childhood obesity, by 2015.

7 The Healthy Weight Commitment Foundation will

8 promote ways to help people achieve a healthy weight,

9 through energy balance, in the places that people spend

10 most of their time, in schools, in workplaces, and in

11 the marketplace. It will also undertake a public

12 education campaign aimed at six to 11-year-olds and

13 their caregivers.

14 Among other things, the Healthy Weight

15 Commitment Foundation is supporting an expansion of the

16 Healthy Schools Partnership, with an $8.5 million grant.

17 The Healthy Schools Partnership is an innovative program

18 with partners being the American Dietetic Association

19 Foundation, PE4Life and the American Council For Fitness

20 and Nutrition Foundation. It provides an integrated

21 nutrition curriculum into the PE4Life physical education

22 classroom, bringing RDs, registered dieticians, in to

23 coach and motivate students alongside of PE4Life

24 teachers.

25 Together, they teach students the concept of
179

1 energy balance, and it is working. In the fall of 2008,

2 the ADAF and UC Berkeley launched a study to evaluate

3 the effectiveness of the RD nutrition coaching component

4 of the Healthy School Partnership. Although they

5 started out roughly the same, after coaching, students

6 in the intervention schools had scored significantly

7 higher than those of students in control schools,

8 particularly as shown here, in understanding how to

9 maintain a healthy body weight and recognizing the value

10 of eating more fruits and vegetables.

11 The study included 500 fourth, fifth and sixth

12 grade students from five schools in the urban core of

13 Kansas City, Missouri, where the student population is

14 75 percent or more eligible for free or reduced price

15 lunch.

16 After RD nutrition coaching, twice as many

17 students from intervention schools, 31 percent, compared

18 to the control group, 17 percent, were eating vegetables

19 at school lunch, and the program evaluators validated

20 the self-reporting with photographic measures of actual

21 consumption during school lunch. The difference was

22 statistically significant.

23 So, the next step for UC Berkeley research is to

24 develop, with the Kansas State University, a joint

25 assessment of HSP's PE and nutrition coaches'
180

1 curriculum. Based on the student verbatims, we believe

2 this is likely to show an added value to an integrated

3 curriculum, as students connect the energy balance dots

4 and learn how to balance healthful eating with physical

5 activity.

6 Finally, in addition to these efforts in the

7 marketplace, the workplace and schools, the Healthy

8 Weight Commitment Foundation will launch in the first

9 quarter of 2010 a national public education campaign on

10 energy balance. The campaign is designed to help raise

11 awareness about the importance of balancing a healthy

12 diet with physical activity, particularly among children

13 six to 11, their parents and their caregivers.

14 So, in conclusion, the average child aged two to

15 11 viewed fewer food, beverage and restaurant ads in

16 2008 than in any recent year, and the long-term decline

17 has accelerated in the last four years. The mix of

18 advertising continues to shift, a key objective of the

19 IOM recommendations, as well as those of the FTC.

20 Industry is developing and supporting initiatives in

21 schools, in workplaces, and in the marketplace that are

22 already having an impact and are gaining momentum, and

23 we are going to continue to make every effort to address

24 this problem, which we view as one of the most serious

25 ones facing our society today.
181

1 So, I will stop there. Thank you.

2 (Applause.)

3 MS. KOLISH: Thank you, Mary, for inviting me

4 and giving me an opportunity to discuss the BBB program

5 over the last two years. My name is Elaine Kolish and

6 I'm the director of the BBB's Children's Food and

7 Beverage Advertising Initiative. As you may recall,

8 this program became operational when we announced the

9 commitments of our then 11 participants, right here at

10 the FTC's July 2007 Forum.

11 At that time, we announced that our participants

12 had exceeded our baseline commitment requirement of 50

13 percent, and instead had pledged that 100 percent of

14 their advertising would be for healthier or

15 better-for-you product advertising, or that they would

16 not advertise to children at all.

17 Among other things, we now have expanded the

18 program and have 16 members of the Initiative, and all

19 16 of these companies have now implemented their

20 pledges.

21 My remarks today are focused on two points.

22 One, the participants have made serious and important

23 commitments about food advertising to kids. They are

24 honoring those commitments and those commitments are

25 resulting in significant improvements in the products
182

1 advertised to kids.

2 Second, we have been listening to the feedback

3 on the program, and while it is not feasible for us to

4 make every change that has been recommended, later in

5 this presentation, I will be describing the many changes

6 that we are adopting that will be effective on January

7 1.

8 Let me say first, Mary Sophos nicely talked

9 about the overall decline in food advertising to

10 children, and that's important data for food

11 policymakers to know about and to consider, but the goal

12 of the CFBAI, however, is not to reduce the amount of

13 food advertising to children, but instead to change it.

14 The food pledge program is seeking a shift in the mix of

15 food ads directed to kids under 12.

16 By this, we mean that we are encouraging ads for

17 products that are more nutrient dense and have fewer

18 calories and that are lower in fat, sodium and sugars.

19 As is widely acknowledged, however, childhood obesity is

20 a complex problem. The food pledge program is not and

21 cannot be a silver bullet that ends this problem, but we

22 are a part of the solution, and our actions support the

23 efforts of the most important influences in children's

24 lives, their parents and their schools.

25 We recently released a report on the year 2008,
183

1 and we found that compliance was virtually 100 percent.

2 Because of the comments that have been made about

3 advergames today, I would like to spend just a minute on

4 this topic, but first let me say, we do not have the

5 benefit of seeing the MSU study in advance, so we don't

6 know what food manufacturers are in the study, what

7 websites and games were reviewed or exactly how the

8 foods were analyzed, and without this information, it's

9 difficult for us to comment on the results.

10 But we do think that it's important that

11 research do contain this methodology, or it's of little

12 use for policymakers in this area.

13 During our review of website compliance during

14 2008, we found that when companies use branded products

15 in their child-directed games, they used only foods

16 approved under their pledges with just a couple of minor

17 exceptions, and our results are fully laid out in our

18 report.

19 Since then, there have been some independent

20 analyses of Internet advertising, and they have not

21 reported any problems to us.

22 We are also surprised that the MSU researchers

23 are contending that the nutritional content of foods in

24 participants' advergames is not as good as the foods in

25 nonparticipants' games. These results appear to be
184

1 contrary to the findings and reports issued recently by

2 both the Center For Science in the Public Interest and

3 by Professor Kunkel. Both those reports that

4 participants' foods were better than nonparticipants'.

5 Before our Initiative was launched, almost

6 anything went about what was advertised. Now,

7 science-based nutrition standards guide participants on

8 what they're going to advertise and the BBB's oversight

9 is providing transparency and accountability. The

10 nutrition standards the company used are very

11 recognizable, as they are based primarily on the dietary

12 guidelines and FDA standards, and they're similar to a

13 number of third-party standards.

14 We think that looking at the progress that has

15 been made on a product and meal basis is very important,

16 but we think using simplistic, and sometimes

17 inexplicable categories such as "Go, Slow, Whoa," is a

18 woefully inadequate way to measure change. These

19 categories cannot measure the significant reductions in

20 calories, fat, sodium and sugars that have occurred

21 across a range of products. Those categories also seem

22 to judge kids' meals that are advertised based simply on

23 one component, such as the entree, and do not recognize

24 the large amount of fruit and low-fat dairy advertising

25 that is occurring through ads for kids' meals that now
185

1 meet our nutrition standards.

2 For those of you who are interested in learning

3 more about this, I presented remarks yesterday at

4 Children's Now Events, and those prepared remarks are

5 available on the BBB's website.

6 The fact that not all products meet CSPI

7 standards is not surprising either. Our program is

8 designed to encourage participation, and accordingly, it

9 balances flexibility -- by allowing individually

10 developed standards -- with rigor -- by requiring that

11 the standards be science-based. We think that judging

12 products solely on the basis of whether they are above

13 or below a particular threshold to draw conclusions of

14 "healthy" or of "poor nutritional quality" is overly

15 simplistic and yields to misleading conclusions.

16 Nutritional science isn't that simple, nor are people's

17 diets.

18 What is surprising is that CSPI does not

19 acknowledge its own role in the standards used by some

20 companies. In particular, CSPI singles out cereals as

21 having too high a sugar content. So, I'm going to spend

22 a minute describing the basis for the 12 grams or

23 48-calorie guideline that seems to be of particular

24 concern.

25 This standard is based in part on taking the 200
186

1 discretionary calories in the diet and dividing those

2 calories by four daily eating occasions, which equals 50

3 calories, or 12.5 grams, which was then rounded down to

4 12 grams, but beyond that, I considered data showing

5 that ready-to-eat sweetened cereals are not a major

6 source of added sugars in the American diet. Cereal

7 accounts for just five percent of a child's daily intake

8 of calories, and just five percent of the sugar in their

9 diets.

10 I also considered that ready-to-eat cereals are

11 nutrient-dense products, generally eaten with milk,

12 which provides calcium, another nutrient that most

13 children do not get enough of.

14 Finally, just before we finalized our pledge

15 review, I took into account that CSPI had announced it

16 had negotiated a settlement with Kellogg's. That

17 settlement included a 12-gram sugar guideline, and

18 here's a picture of their press release. Margo

19 conveniently omits this fact when she calls this 12-gram

20 sugar guideline a "hole" in the standards. As you can

21 see, although it was a settlement, CSPI lauded it as

22 both historic and as an important agreement that could

23 be a rising tide that should lift all boats.

24 So, to disavow it now suggests that the Center

25 For Science in the Public Interest settlement was
187

1 neither based on science, nor in the public interest,

2 but what is more likely is that CSPI believed, as I do,

3 that it was a reasonable place to begin, and that

4 important first step could lead to further progress, and

5 that, in fact, is what is happening.

6 The use of nutrition standards has resulted in a

7 lot of changes, well over 100 products have been

8 reformulated or newly created to meet participants'

9 nutrition standards. The significance of the large

10 number of reformulations may not be obvious to everyone.

11 It may seem like a simple task to remove some sodium or

12 sugar or fats from some product, but it is not simple.

13 Changing one ingredient can affect the rest, and even

14 small changes can significantly affect taste, mouth feel

15 and, very critically, consumer acceptance of the

16 product.

17 I've included this flow chart to illustrate the

18 numerous steps that are involved in a reformulation, but

19 even this flow chart is unlikely to give you a full

20 appreciation of the time and effort that is involved.

21 In addition to being a multifaceted, lengthy

22 process, it is a very costly, resource-intensive

23 process. Exact figures are not available, but many,

24 many, many millions of dollars have been spent to

25 reformulate products to meet a company's standards for
188

1 child-directed advertising. In some instances, just

2 changing one flavor could cost a million dollars or

3 more.

4 So, I would now like to turn and talk about some

5 examples of company changes. Burger King implemented

6 its pledge six months ahead of schedule in July of 2008.

7 In doing so, it launched a new product, BK fresh apple

8 fries. These fries are really popular. They are

9 actually even going to be sold in grocery stores. Later

10 in 2008, it strengthened its already rigorous nutritious

11 criteria for Kids Meals by adding a 600-milligram sodium

12 limit and a requirement that a meal provide a good

13 source of at least two nutrient shortfalls for children.

14 I also wanted to visually show you how Burger

15 King's advertising has changed over the last five years.

16 Back five years ago, the Kids Meals included a double

17 cheeseburger, french fries, soft drink and, of course, a

18 Sponge Bob toy. A couple of years later, the Kids Meals

19 now include a variety of options, including Mott's apple

20 sauce, low-fat chocolate milk and, of course, a Sponge

21 Bob toy.

22 Now in 2009, all BK's Kids Meals primarily

23 advertised to children meet strict nutritional criteria.

24 This meal, one of four currently permitted under its

25 pledge, comes in at 390 calories, well under its limit
189

1 of 560, and less than 25 percent of the calories come

2 from fat.

3 Campbell's also has successfully tackled one of

4 the hardest jobs in food science, reducing the sodium in

5 soups and pastas significantly while retaining flavor.

6 It devoted substantial resources to developing a

7 proprietary sea salt and other know-how that allowed the

8 sodium content to be reduced while keeping great taste

9 that consumers like.

10 This know-how is being used across the company's

11 different brands, and just yesterday, Campbell's

12 announced it will be further reducing the sodium in its

13 canned pastas by up to 35 percent. Now, all varieties

14 of SpaghettiOs will be nutritionally aligned with FDA's

15 criteria for healthy main dishes. My kudos to

16 Campbell's.

17 I would also like to acknowledge the efforts

18 that ConAgra Foods has made in reducing sodium and fats

19 in its canned pastas. For example, the sodium content

20 in one variety of Chef Boyardee has been reduced 30

21 percent. Additionally, the company has pledged to

22 reduce sodium in its products 20 percent by the year

23 2010.

24 Here is one example of a Campbell's product,

25 it's Chicken and Stars soup showing that it has been
190

1 reformulated twice, first from 940 to 640 and then to

2 480, the FDA level for healthy individual products.

3 General Mills has reformulated many products and

4 introduced new products to meet its standards. In

5 particular, it has now reformulated Trix cereal twice.

6 First it reduced the sugar content from 13 grams per

7 serving to 12, to meet its sugar guideline, and this

8 month it again reduced the sugar content, it is now at

9 11 grams per serving.

10 This visual shows exactly how the reductions

11 have taken place and the years they have taken place in

12 these eight cereals that it advertises to children, and

13 General Mills announced last week that it would be

14 further reducing the sugar content of all of these

15 cereals to single digits. That's great news.

16 Kellogg's also has reformulated a number of

17 products, too, including many well-known and popular

18 products, such as Apple Jacks, and here you can see that

19 the sugar content of Apple Jacks was reduced from 15

20 grams to 12, which was a 20 percent reduction.

21 McDonald's has introduced some new combinations

22 that meet its standards, these snack wraps, and its

23 Happy Meal advertising now always includes apple dippers

24 and low-fat milk. The number of healthier options that

25 are being purchased that include apple juice, chocolate
191

1 and low-fat white milk and apples has increased

2 significantly since they were introduced as options in

3 2004. Now about one-third of Happy Meals sold include

4 these healthier products, and an astonishing 100 million

5 orders of apple dippers have been purchased in Happy

6 Meals since January 2008. That's a lot of apples.

7 In terms of long-term changes in food

8 advertising, the first Happy Meal promotion was in 1979,

9 and it featured fries and a soda. Now Happy Meals are

10 shown with milk and apple dippers, and that you can see

11 that the calories alone have decreased substantially.

12 I also want to share with you an informal

13 analysis of participant advertising in 54 hours of

14 children's program that we did in March 2009. This

15 involved 233 ads for 24 products. First we found that

16 all of the products of our participants in our sample

17 met their nutrition standards. We then analyzed the

18 products to determine whether they provided at least 10

19 percent of the daily value of potassium, fiber, calcium,

20 magnesium or vitamin E, which the 2005 Dietary

21 Guidelines for Americans identify as nutrient shortfalls

22 for children. Or whether they supplied at least a half

23 serving of fruit, vegetables, low-fat dairy, or eight

24 grams of whole grains. We found that 83 percent of the

25 ads provided one or both of these nutrients.
192

1 We also looked to see how many ads were for

2 products in specific categories, and we found the

3 following: 35 percent of the ads were for products or

4 meals that had whole grain, 12 percent featured or

5 included yogurt products, seven percent of the

6 participants' ads were for products that included a half

7 serving of vegetables, and 28 percent of participant ads

8 included apples and milk.

9 We also thought it would be useful to share an

10 analysis of the cereal category with you. As a

11 preliminary matter, let me first explain that the

12 products on the CFBAI's approved product list change as

13 new products get added and others are discontinued.

14 Currently, there are 37 cereals on the list. This means

15 that they may be advertised to children, though not all

16 of them are necessarily actively advertised to kids.

17 Some flavors may be advertised only on websites or are

18 on the list because they meet the company's nutrient

19 criteria, though they are not necessarily currently

20 advertised to kids.

21 There are several noteworthy characteristics of

22 this collective group of cereals. The analysis you see

23 on this slide is based on up-to-date formulations.

24 First, much has been made of the sugar content of

25 cereal. Well, prior to adoption of this program, some
193

1 cereals advertised to kids had as much as 16 grams of

2 sugar per serving. Now, current formulations of the

3 product contain no more than 12 grams of sugar per

4 serving. But, in fact, the number of cereals that have

5 ten grams or less of sugar is larger than the number

6 that have 12 grams. Almost half have no more than 35

7 percent sugar by weight, a commonly used standard.

8 Of course, sugar is just one ingredient. When

9 you look at the products in their entirety, you will

10 find that virtually all meet FDA's definition for a

11 healthy nutrient content claim, and all of them meet it

12 on a per-label serving basis.

13 Further, all of the cereals contain essential

14 vitamins and minerals, and the vast majority, 73

15 percent, are a good source of a nutrient shortfall for

16 children. Well over half provide at least eight grams

17 of whole grain per serving.

18 Finally, many scientists believe that children

19 and adults are not getting enough vitamin D. More than

20 two-thirds of the cereals in this group are at least a

21 good source of this vitamin.

22 Going forward, as I said at the outset, we have

23 been listening to feedback and we are making some

24 changes. A key change is increasing the baseline

25 advertising commitment to 100 percent from 50 percent,
194

1 and eliminating the possibility of meeting the

2 commitment by including healthy lifestyle messaging in

3 ads. This means that going forward, all new

4 participants will have to meet this revised standard and

5 no participant may go down in its commitment.

6 Consistent with our focus on child-directed

7 advertising, we are expanding the venues and type of

8 advertising covered to include other child-directed

9 advertising in games, cell phones, and in child-directed

10 DVDs. Word-of-mouth advertising also would have to meet

11 our principles, and our new principles are available on

12 the table in the foyer.

13 Since the outset, we have said that our

14 standards will be grounded in science and

15 evidence-based. Accordingly, in the fall or winter,

16 after the Dietary Guidelines for Americans 2010 are

17 issued, we will look comprehensively at relevant

18 authoritative developments in nutrition science,

19 including the recommendations the Interagency Working

20 Group will send to Congress in July of 2010.

21 Secondly, although we think that the current

22 definitions of child-directed advertising are working

23 well, we are considering changes that could further

24 harmonize them.

25 The participants in this program have not only
195

1 met their commitments, they have exceeded them. They

2 have made many, many improvements in the products they

3 advertise to kids. I am proud of what we have

4 accomplished together, and I look forward to working

5 with the participants to accomplish even more through

6 collaboration and competition.

7 Thank you very much.

8 (Applause.)

9 MS. ENGLE: Thank you, Elaine.

10 Since we started late, I'm going to exercise the

11 prerogative of extending this panel a little bit so we

12 have some time for questions. I have a few questions

13 that I would like to just to clarify some of the

14 presentations.

15 Dale, one of the things you mentioned was the

16 increase in the use of licensed characters that you saw

17 between 2005 and 2009, and you noted that IOM had

18 recommended that licensed characters be used only for

19 healthy products, and that was one of the

20 recommendations that the FTC made as well, and on some

21 of the slides we saw a lot of examples of Disney and

22 Nickelodeon characters on healthy products.

23 So, one of your findings was that half of

24 licensed characters promote foods in the poorest

25 nutritional category, which I believe was in 2009. I
196

1 wondered if you were able to compare that to 2005,

2 whether the characters promoted more nutritional value

3 over time, did that get better?

4 DR. KUNKEL: I'm not sure that we did that in

5 2005, and we absolutely could, so it's a very legitimate

6 question.

7 MS. ENGLE: Okay. A question for further

8 research, I guess.

9 DR. KUNKEL: Well, could I expand, though? What

10 I would like to do is address one of the points that

11 Elaine makes, where she says that the "Go, Slow, Whoa"

12 approach doesn't measure the improvements that the

13 industry has accomplished, and that's actually not true,

14 it's just that the changes have been so inconsequential,

15 that they haven't moved to another category of

16 nutrition.

17 So, I think it's important to appreciate that as

18 Margo underscored, she's using a more precise or refined

19 measure, her data matched mine perfectly, it's just a

20 question of whether we want to have benchmarks and

21 basically have an analysis where we can categorize and

22 make sense of it rather than saying you have to have a

23 Ph.D. in nutrition to understand this issue.

24 I think it's a really legitimate measurement

25 technique.
197

1 MS. KOLISH: I would like to respond to that,

2 Mary. I think the categories are very nice ones as an

3 effort to simplify complex nutrition to make it easier

4 for consumers to make purchasing decisions for their

5 menus over the course of a week. This tool was not

6 designed to be a basis for formulating public policy

7 decisions and presumably policymakers are sophisticated

8 enough to understand the complexities of nutrition

9 science. These categories can't and won't ever capture

10 change. Some of them are totally inexplicable.

11 For example, french toast and waffles are in the

12 "Slow" sometimes category, while sweetened cereals,

13 regardless of their sugar content, seem to be in the

14 "Whoa" category. There is no explanation of the

15 nutrition science that underlies the basis for these

16 categorizations. It doesn't make sense.

17 Cheerios with one gram of sugar could be in the

18 "Whoa" category as well as any other cereal that had 12

19 or more grams. Those categories don't make sense for

20 assessing change and the progress in the nutritional

21 profile of foods.

22 DR. KUNKEL: You need to talk to Secretary

23 Sebelius and her 12 leading nutritional experts who

24 devised that framework, not, you know, I'm just a client

25 of the framework that they measured.
198

1 MS. KOLISH: They devised it for consumers to

2 help them.

3 MS. WOOTAN: But it doesn't matter, because even

4 using nutrient-based standards, which are very similar

5 to what your companies have pledged to follow, you said

6 our standards are arbitrary, but they're very similar to

7 what many of your participating companies have used.

8 Using those types of standards, with limits for fat and

9 salt and sugars, the results come out the same.

10 MS. KOLISH: No, they don't.

11 MS. WOOTAN: So, it's not the problem that

12 Dale's categories don't work. I use standards very

13 similar to what your companies are using and I got the

14 same results. So do a number of other researchers that

15 are finding the same thing over and over again.

16 MS. KOLISH: Margo, you apparently do not use

17 the 12-gram sugar guideline that you negotiated with

18 Kellogg in evaluating those cereals.

19 MS. WOOTAN: It was a litigation compromise, it

20 wasn't our nutrition --

21 MS. KOLISH: Oh, so --

22 MS. WOOTAN: We have had these nutritional

23 standards since 2005, that's what I use.

24 MS. KOLISH: So, it wasn't science-based or in

25 the public interest? I guess I was wrong to give you --
199

1 MS. WOOTAN: You know what, Elaine, that's

2 really uncalled for.

3 MS. KOLISH: No, it's not.

4 MS. ENGLE: May I interrupt? I would like to

5 ask a question. I think the panelists have --

6 MS. WOOTAN: She has a Ph.D. in nutrition and

7 none of the rest of us do.

8 MS. ENGLE: I think Elaine has provided some

9 concerns about the measure that was used to evaluate

10 success, and that's always, of course, going to be very

11 important, what the measure is, and I think going

12 forward, in the next panel, we will have a discussion

13 about standards, uniform standards that the Interagency

14 Working Group is coming up with, and that's something

15 that the FTC will also use to evaluate changes. If I

16 may, I think we're not going to probably agree on that

17 standard right now, but I just had a couple of other

18 questions I just wanted to pose to some of the

19 panelists, if I could clarify.

20 For example, on Liz's research on the

21 advergames, it was interesting because Dale's research

22 suggests that very good compliance with the pledges on

23 TV advertising, and on advergames, it didn't look that

24 way, but I'm wondering if, again, it's a question of

25 measurement or the universe that you studied. I notice
200

1 that you said that you excluded advergames that were

2 clearly targeted to adults from your study. What about

3 the teen category, because the CBBB initiative just

4 covers 11 and under. So, those pledges would only go to

5 advergames for the youngest segment?

6 MS. QUILLIAM: That is also a very good

7 question. There is, as I mentioned, there's no

8 published list that we could find for which websites

9 target children, which advergames are directed to

10 children, so we did cast a wide net, and looked for

11 games that children would find and children would play.

12 The fact that we found disclaimers saying, hey, kids,

13 this is an ad, on a site, seemed to us to be an

14 indication that the marketer was expecting that children

15 would play those games.

16 Also, we found games particularly among the four

17 pledge participants that agreed to refrain from

18 advertising, we found games that were age restricted,

19 that you had to enter a birth date, and if we entered a

20 birthday that made us younger than 12, or younger than

21 11, our researchers were not allowed to play those

22 games.

23 So, we tried to apply those criteria across the

24 board, regardless of whether it was an Initiative

25 company or not. But in the absence of published
201

1 information, clearly there is some judgment that we had

2 to apply to categorizing the games.

3 MS. KOLISH: Mary, not to be argumentative, this

4 time, but --

5 MS. WOOTAN: It's too late for that.

6 MS. KOLISH: You mentioned that where if they

7 had an ad flag on it, saying hey, kids, this is an ad,

8 that you counted it as kids games, and I think some

9 companies may be including that in the excess of

10 caution, in case a kid does come across it, so they are

11 trying to be very, very careful, but they may not still

12 be considering that website to be directed to kids or

13 for the game to be directed to kids. It just may be the

14 lawyer saying, you better put it on there.

15 MS. QUILLIAM: We would like to be able to do

16 future research where we have actual data on the

17 demographics of who is visiting these sites and who are

18 using these games. We don't have that information.

19 MS. KOLISH: That's very important. We did a

20 lot of research in our report looking at that, and there

21 are scores and other empirical evidence available.

22 Because occasionally we went to one of our members and

23 say, we're worried about this game and they pull out

24 Nielsen data and say the visitors are women age 35 and

25 up. So, apparently, although you and I may not be good
202

1 game players, we are apparently in the minority for our

2 gender and age group.

3 MS. ENGLE: Elaine, one of the announcements you

4 made today was the extension of the Initiative to some

5 other forms of marketing. I didn't see product

6 packaging on that list. I'm wondering, that's certainly

7 something the FTC has called attention to as an area we

8 would like to see Initiative extended to. Is that

9 something that your companies might be willing to

10 discuss?

11 MS. KOLISH: Aren't we out of time?

12 (Laughter.)

13 MS. KOLISH: It's not a change that we were able

14 to agree on. Some companies, of course, do include it

15 as part of their global corporate social responsibility

16 commitment, but for others, there are complex business

17 decisions that don't make it feasible for them to make

18 that change.

19 MS. ENGLE: Mary, I had a question for you. You

20 had some graphs showing trends in the categories of

21 foods that are advertised and the decrease in sodium and

22 some other things and an increase in fruit juice and

23 water, and as you noted, the baseline is quite different

24 on those. So, I wondered the magnitude of the increase

25 is hard to assess without knowing what the baseline is.
203

1 Does your report provide that, the baseline figures?

2 MS. SOPHOS: We can provide that. I think all

3 of these categories are relatively a small percentage,

4 cereals may be the largest, but they are fairly small

5 percentages overall. We can probably find that

6 information for you.

7 One thing I would like to do, though, is maybe

8 just address something that Dr. Kunkel said earlier,

9 when he referred to the conclusions of the IOM report

10 from 2005, and while his quote was accurate, I think it

11 left the audience with the misimpression about what the

12 IOM actually did conclude, because what they said on

13 their conclusion on obesity is that the evidence is not

14 sufficient to arrive at any finding about a causal

15 relationship between television advertising and obesity

16 among children and youth.

17 So, I think it's important to make sure we get

18 the record reflected accurately on that point.

19 DR. KUNKEL: We don't have the time to engage in

20 this.

21 MS. ENGLE: Just to try to wrap up here.

22 DR. KUNKEL: We're not going to address it.

23 MS. ENGLE: I have a question for each panelist,

24 it's almost New Year's, any New Year's resolutions on

25 this topic? I'll just start with you, Dale, and go
204

1 down.

2 DR. KUNKEL: A New Year's resolution in this

3 topic area. Boy. We need to see a uniform nutrition

4 standard. How do I put that into a resolution form?

5 The fact that Margo observed that there's so much

6 variability between the nutritional standards and that

7 the cereal companies are weak on sugar, one of the

8 findings that I didn't have time to report is that if

9 you look at the percentage of products that meet one

10 company's standard, but violate other companies'

11 standards, it's 88 percent for children's meal products.

12 They meet their own standard. They don't meet the other

13 company's standards. It's 92 percent for cereal

14 products.

15 So, I think the industry needs to resolve to

16 have a more uniform nutrition standard and I'm looking

17 forward to the next panel to address that.

18 MS. WOOTAN: I don't know, I think I changed my

19 mind a little bit over the course of the day, that I

20 came in really with a very open mind about

21 self-regulation and the chance of it working and I feel

22 much less optimistic now than I did. So, my resolution

23 might be to talk to some members of Congress about what

24 to do on food marketing.

25 (Applause.)
205

1 MS. QUILLIAM: I guess I agree with both Margo

2 and Dale. I would like to see not only more

3 standardization with respect to nutrition, but also in

4 terms of what does it mean that media is targeted to

5 children, particularly in the online world, where it's

6 clearly undefined, and Elaine and I have differing

7 opinions, obviously, on which websites or which games

8 might be child-directed or not, makes it very difficult

9 for not just researchers, but policymakers and parents

10 to have a clear understanding of what kids are being

11 exposed to and how it affects them.

12 So, I guess that would be my New Year's hope as

13 opposed to a resolution.

14 MS. ANOPOLSKY: So, I guess our New Year's

15 resolution will be to continue to focus on this topic

16 and try to apply the strengths and gifts that we have as

17 a company to advancing the best interests of children.

18 UNIDENTIFIED FEMALE SPEAKER: Go Disney.

19 [Applause].

20 MS. SOPHOS: I think I would like to echo

21 Jennifer's New Year's resolution, which is an actual

22 resolution, because it involved a commitment on her

23 part, and we certainly intend to continue our commitment

24 to do things, including around the issue of marketing,

25 but also on areas that we talked about with the healthy
206

1 weight commitment where we're actually going to have a

2 chance to make a significant impact in improving

3 children's lives, and I guess on my Christmas wish list,

4 which is what we heard from the first half of the panel,

5 is that we could perhaps stop arguing over categories

6 and individual foods and figure out how to talk to

7 consumers about how to manage a whole diet, to look at

8 their diets and to look at energy balance and calories

9 in and calories out and find some common sense ways to

10 get a handle on this really difficult and challenging

11 issue.

12 MS. KOLISH: My resolution is to try to persuade

13 people that self-regulation is working, and that

14 companies have made very sincere, meaningful commitments

15 to addressing childhood obesity. No one wants children

16 to be in the position they are, and to recognize that

17 cereal companies, the other companies, are not

18 pernicious purveyors of sugar, they're making products

19 they think consumers want and need.

20 The reason I focused on the CSPI and 12 grams is

21 that, settlement or not, it was a standard that was

22 agreed to in negotiation, and one that the company had

23 to then agree to use and reformulate its products to,

24 and I thought it was unfair then to then judge them by

25 yet a different standard two years later when they were
207

1 doing exactly what they promised to do, and that's what

2 all of the companies have done in this program.

3 Two years ago, the standards we announced, had

4 great fanfare, people were thrilled, from FTC to

5 lawmakers, American Dietetic, American Heart, CSPI, the

6 companies have done exactly what they pledged to do, and

7 more. The goal post may be moving, I understand that,

8 but that doesn't mean the companies aren't doing what

9 they promised to do, and don't deserve some recognition

10 of the significant progress that's been made.

11 MS. ENGLE: Thank you. Please join me in

12 thanking the panel.

13 (Applause.)

14 MS. ENGLE: We're going to take a break now and

15 reconvene at 3:30.

16 (Whereupon, there was a recess in the

17 proceedings.)

18 MR. FENTONMILLER: We're going to move on to the

19 final panel of the day, presentation from the

20 Interagency Working Group on Food Marketed to Children.

21 There will be a presentation and then a town hall

22 discussion will follow. I am going to introduce the

23 moderator of the panel, senior attorney Michelle Rusk.

24 MS. RUSK: Good afternoon, and thank you for

25 staying for the last panel of the day. I don't know
208

1 when I've been at a conference where I've seen so many

2 people stay for the last panel, and thank you for the

3 earlier panels for plugging this one.

4 I'm Michelle Rusk, I'm a senior attorney in the

5 Division of Advertising Practices at the Federal Trade

6 Commission, and it is my great honor to introduce my

7 fellow panelists who also happen to be the principal

8 participants in the Interagency Working Group on Food

9 Marketed to Children, which you've been hearing about a

10 lot today. You may have even heard it referred to by

11 the unofficial name, "SNAC PAC." It is one and the

12 same.

13 With me this afternoon, I'm pleased to introduce

14 Dr. William Dietz. Dr. Dietz is the director of the

15 Division of Nutrition, Physical Activity. And Obesity

16 in the Center For Chronic Disease Prevention and Health

17 Promotion at the CDC.

18 From the Food & Drug Administration, we are

19 honored to have Dr. Barbara Schneeman. Dr. Schneeman is

20 the director of the Office of Nutritional Labeling and

21 Dietary Supplements in the FDA Center for Food Safety

22 and Applied Nutrition.

23 From the Department of Agriculture, I am happy

24 to welcome Dr. Robert Post, who is deputy director for

25 USDA's Center For Nutrition Policy and Promotion.
209

1 I just need to say that our participants this

2 afternoon bring to this panel and to the working group a

3 very impressive set of credentials and years of

4 experience in fields like pediatric medicine, clinical

5 nutrition, food and health, public policy, and I don't

6 think that we could have hoped for a more qualified

7 group of individuals to take on the charge of this

8 working group.

9 So, speaking for FTC staff, it has been an honor

10 working with all of you for the last several months.

11 I would like to explain how this afternoon's

12 panel will be organized, because it's our goal to allow

13 as much time as possible for open discussion, but we do

14 need to provide you with some background first. For my

15 part, I will lay out the parameters of the task that

16 Congress set for the working group, and before we get

17 into what I hope will be the focus of our discussion

18 this afternoon, which is the nutrition portion of our

19 work, I do need to briefly present our proposed

20 standards on how we will be defining children's media.

21 Dr. Dietz then will give us some background as

22 to the health and nutrition concerns that were really

23 guiding the group's efforts as we went forward.

24 Dr. Schneeman has the big task of describing the

25 nutrition standards that we're proposing today, and
210

1 those are standards as they've been developed and

2 refined up to this point. I think you've all received a

3 copy of the handout that includes a one-page summary of

4 those standards. If you don't, raise your hand,

5 somebody on our staff will get you a copy.

6 Dr. Post will then identify what we have

7 identified as some of the outstanding issues and

8 questions that the working group has yet to resolve, and

9 I think everybody on this panel will readily admit that

10 our work is not yet complete.

11 So, we are soliciting your input on these

12 outstanding issues today, and I do want to make sure

13 that everybody understands that we will also be issuing

14 a Federal Register notice, so there will be a public

15 comment period for more extensive comment.

16 So, once we've heard from the panelists, we

17 really do want to open up the forum to discussion with

18 all of you. We know we'll need to provide some

19 clarification, we want to answer your questions, and

20 really we would appreciate your candid reactions to what

21 the group is proposing. Hopefully, you won't be shy,

22 I'd say from the day so far that's not going to be a

23 problem, about sharing your ideas with us, about what

24 works and what does not, and also about how to fill in

25 some of the missing details.
211

1 So, I encourage you to prepare your questions as

2 you are listening to the panelists, give their

3 overviews, but please hold them to the second part.

4 There are a couple of ways that you can participate. If

5 you want to use the microphone and give us a brief

6 statement or ask a question, just please identify

7 yourself and your affiliation for the record, and also

8 we anticipate that there will be a lot of people who

9 want to give us their input, so please try to keep your

10 statements brief. I'm going to limit you probably to a

11 minute or less.

12 If you prefer not to speak, you can submit your

13 questions to the group on cards, and just signal one of

14 our staff if you need a card, and finally, for those of

15 you who are watching on webcast, again, if you have a

16 question, you can email it to us at

17 childhoodobesity@ftc.gov, and we will do our best to fit

18 everyone in, but again, there will be a Federal Register

19 notice and an opportunity for written comment after the

20 new year.

21 So, let's start. The Interagency Working Group

22 on Food Marketed to Children was established last spring

23 by Congress. You all have on your handout the exact

24 language of the statement from the Omnibus

25 Appropriations Act, but I will just summarize it
212

1 quickly.

2 Congress directed the Federal Trade Commission,

3 together with FDA, CDC and USDA, to form the working

4 group, and the stated mission of the group was to

5 develop standards for the marketing of foods to

6 children, and I will note that children were

7 specifically defined in the Congressional language as 17

8 years old and younger.

9 We were directed as a group to consider both

10 positive and negative contributions to the diet, and

11 also the role of foods as well as specific nutrients and

12 ingredients in both preventing and promoting childhood

13 obesity.

14 We were also directed obviously to determine the

15 scope of children's media to which these standards would

16 apply, and finally, Congress requested a report of the

17 working group's findings and recommendations, no later

18 than July 15, 2010, which is exactly seven months from

19 today. I think that we will hear reminders of this from

20 our other panelists, but I feel the need to address two

21 things right up front about what this effort is, and

22 what it is not.

23 It is not a regulatory proposal. Congress was

24 seeking the best thinking of the government agencies

25 that have expertise on children's health and nutrition
213

1 and on marketing, but the final product of this group

2 will be a report to Congress, and not regulations by the

3 agencies.

4 Second, we didn't want anyone to misinterpret

5 these standards as either a substitute or replacement

6 for any of the food labeling regulations or a change in

7 the dietary guidance. The working group was absolutely

8 guided by the policies and regulations of the

9 participating agencies, but the proposed standards

10 should not be seen as a change in policy. So, these are

11 not a new definition of healthy for labeling for

12 children's food products, nor do they signal any change

13 in the Dietary Guidelines for Americans.

14 We really see this as a set of standards to

15 guide industry in determining what is appropriate to

16 market to children, and especially given the tremendous

17 health concerns that we've heard so much about earlier

18 in the day. If industry responds, and we certainly hope

19 and expect that they will, by limiting children's

20 marketing to the foods that meet these standards, then

21 we really do believe it will have a meaningful impact on

22 children's food choices, on their diets, and ultimately

23 on their health. That is really what was driving the

24 work of the group.

25 I do want to make sure we make the best use of
214

1 this open forum to focus on the nutrition standards

2 component of our task, because that really has been the

3 lion's share of the efforts of the working group so far,

4 and probably going forward as well. As to the other

5 component, what constitutes children's media, the

6 working group decided early on that there was already a

7 template in place, and that comes directly from the

8 FTC's 2008 study and report to Congress.

9 So, I don't want to use up valuable time

10 outlining all of the details of that, because it is

11 available in our study and online, and I know many of

12 you in this room are already intimately familiar with

13 them as companies that were asked to provide data for

14 our study, but I will just describe a couple of key

15 elements.

16 First, those definitions, we divided up into

17 marketing to children ages 2 to 11, and adolescents,

18 which was ages 12 to 17. So, children and adolescents,

19 and for each of those we have definitions that

20 encompass, I think, a significantly broader range of

21 marketing activities than those that have typically been

22 the basis of self-regulatory pledges, although I think

23 you've heard Elaine announce in the previous panel that

24 those were being expanded.

25 So, the FTC definitions actually identify 20
215

1 categories of advertising, as well as marketing, and

2 promotional activities, and I think it's worth me

3 reading them to you so you really have a sense of how

4 broadly this is defined. It covers traditional measured

5 media, like TV, radio and print, marketing on the

6 Internet, other digital advertising like email and text

7 messages, packaging, point of purchase and in-store

8 labeling, product placement in movies and video games,

9 contests and sweepstakes, cross promotions and product

10 tie-ins, sponsorship of events, in-school marketing,

11 philanthropic activities, and word of mouth and viral

12 marketing.

13 So, those are the categories, those are the

14 ages, and then for each of those activities that we've

15 identified, we've established a combination of both

16 objective indicators, typically something like the

17 audience share for a television program, as well as

18 subjective indicators like the use of child oriented

19 characters, themes, language, and those two combined

20 help us determine when something is child directed.

21 So, again, all of those definitions are set out

22 in our study, there will be a formal opportunity to

23 comment on the children's media piece of those, as well

24 as the nutrition standards, and I do really want us to

25 try and focus this afternoon, our discussion on the
216

1 nutrition piece of the working group's effort. So, with

2 that, I would like to turn it over to Dr. Dietz.

3 Thank you, Michelle, and let me just echo

4 Michelle's comments that this working group has been I

5 think one of the most efficient and compatible groups

6 that I have worked with, either inside or outside the

7 Federal Government. So, it's been a real pleasure

8 working with you, Michelle, Barbara and Rob.

9 My job is to provide the background that we

10 considered for these standards for food marketed to

11 children, and we began with the issue of obesity, you've

12 heard earlier about the rapid increase in the prevalence

13 of obesity among children and adolescents, and although

14 we're now at a plateau in some groups, that's no cause

15 for complacency, because these children will grow up to

16 be obese adults and are likely to contribute

17 disproportionately to the prevalence of severe obesity

18 in adults and contribute even further to the major

19 contribution that obesity makes to health care costs.

20 As was mentioned earlier in the day, those costs

21 are about $150 billion a year, about almost 10 percent

22 of the national health care budget, and we cannot

23 continue on this, we cannot achieve successful health

24 reform, and cost reduction, unless we address the

25 epidemic of obesity.
217

1 Television is an important contributor. These

2 are data that we published in 1996, they echo the data

3 that we published earlier in 1985, showing the linear

4 relationship between the prevalence of obesity and the

5 amount of time that children were watching television.

6 As I'll come to the potential mechanism by which this

7 relationship exists in a moment, but I wanted to revisit

8 the IOM standards that you heard mentioned several times

9 earlier and the controversy about them.

10 The IOM committee concluded that there was

11 strong evidence that the quality of children's diets

12 were affected by television viewing and the food

13 marketed on television, both in terms of preferences,

14 requests and short-term consumption. Moderate evidence

15 that it affected food and beverage beliefs in younger

16 children and affected usual dietary intake. But the key

17 phrase here, which was batted about in very

18 contradictory terms earlier today, is the conclusion

19 that there was insufficient evidence on the causal

20 relationship that television advertising has to obesity,

21 and it's important to understand the term

22 "insufficient," because insufficient means there was

23 just inadequate data that did not permit a conclusion

24 one way or the other.

25 Our perspective was like that shared by those
218

1 who are interested in extra terrestrial life who say

2 that the absence of evidence is not evidence of absence,

3 and in this situation, given that the pressure of

4 obesity and its adverse health effects, we felt that we

5 couldn't wait for the best possible evidence around any

6 of the criteria that I'm going to share with you, or

7 that actually Barbara is going to share with you, but we

8 really had to act on the best available evidence.

9 Some of that evidence began with this study by

10 Claire Wang who showed that the average daily energy gap

11 that accounted for the rise in BMI, or mean BMI, among

12 adolescents in this study, of ten pounds, was roughly

13 150 calories a day. That's quite a modest increase. It

14 was certainly greater among those who became obese, but

15 for the general population, that modest increase of

16 about 150 calories a day is what accounted for the shift

17 in average BMI over this roughly ten-year period.

18 That can be accounted for by relatively modest

19 alterations in dietary intake, like replacing a can of

20 soda or reducing television time or increasing physical

21 activity, either by walking or increasing physical

22 education in schools.

23 So, these are manageable tasks, and it's likely

24 that obesity is not caused by any single behavior, but

25 by a multiplicity of behaviors, all of which contribute
219

1 small amounts of excess calories to daily caloric

2 intake, and many of those are promoted by television.

3 Among the strategies, I should say, that we believe are

4 essential to begin to implement to reduce obesity in the

5 population. That is, decrease the intake of high-energy

6 density foods, largely fast foods, reduce the intake of

7 sugar sweetened beverages, decreased television time and

8 increased daily physical activity.

9 All of these can be associated with the amount

10 of time that children are watching television, but

11 increasingly, as the Epstein study, which was cited

12 earlier today indicated, it appears that the

13 relationship between television viewing and obesity is

14 mediated more by food intake than by the displacement of

15 vigorous or even moderate physical activity. Which once

16 again, brings us back to the issue of advertising.

17 This slide shows the contribution of food ads,

18 food products advertised on television, you saw data or

19 you heard about the data by Powell earlier today in

20 terms of the fact that foods advertised on television

21 are largely unhealthy, and that was very nicely

22 demonstrated by the study out of the Rudd Center that

23 has also been alluded to.

24 On the left column are the cereal ratings for

25 the ten least healthy cereals, and as you can see, that
220

1 these are also among the top ten marketed to children

2 and the top ten cereals that are marketed on the

3 Internet.

4 These and the foods that I showed you in the

5 previous slide contribute to a discretionary calorie

6 imbalance that is likely accountable for obesity and led

7 us to focus very carefully on the added sugar

8 recommendation that you'll see when Barbara presents.

9 Now, we were also mindful of the fact that

10 although sodium was not a factor that contributed to

11 obesity, certainly hypertension is highly prevalent in

12 the population, and elevated blood pressure is true

13 across the population, and is a particular problem for

14 children and adolescents, as well as adults, with

15 obesity. So, we felt that we also needed to consider a

16 sodium standard.

17 Just by way of reviewing, the dietary guideline

18 recommendation for sodium is 2300 milligrams per day,

19 but specific populations, namely 75 percent of the

20 population, which are accounted for by

21 African-Americans, older Americans, or those who are

22 hypertensive, is 1500 milligrams per day, the average

23 intake is about 3500 milligrams per day.

24 The recommended allowance for children and

25 adolescents, particularly children, I should say, is
221

1 lower than 2300 milligrams per day.

2 We felt that because the sodium intake and

3 sodium tastes are likely to begin in childhood, and that

4 the predisposition to hypertension is augmented by

5 overweight and obesity, which affects 30 percent of the

6 population, we needed to consider a sodium standard,

7 particularly if we were going to have a long-term impact

8 on reducing sodium in the food supply and reducing the

9 consequent morbidity and mortality associated with

10 increased sodium intake.

11 Some of those numbers are shown here, that in a

12 model program, that the effects of reducing sodium by 50

13 percent in processed and restaurant foods will

14 contribute to an important decline in systolic blood

15 pressure, a decline in the prevalence of hypertension,

16 coronary heart disease, strokes, death and mortality.

17 So, although these are not consequences suffered

18 by children, we felt that it was also important for us

19 to begin to address the issue of sodium in children's

20 food supply.

21 Now, I wanted to close with just a few comments

22 about the process, and what led us to some of these

23 standards. We recognize very well the role that

24 children's advertising plays in support of children's

25 television. That's been true for 40 or 50 years.
222

1 Nonetheless, we recognize that children are this

2 nation's most precious resource, and that our obligation

3 was to health and health determined by what children

4 ate.

5 So, at the outset, although we began by focusing

6 on the foods that needed to be excluded from

7 advertising, we very quickly shifted to a consideration

8 of criteria that were based on the impact of these foods

9 on children's long-term health, at least to the best of

10 our judgment, and focused on foods and nutrients to

11 limit and encourage, as the original scope of our work

12 required.

13 But we thought that food ads needed to be based

14 on the merits of the food, and we recognized that the

15 standards that we're proposing may be challenging to

16 meet, and we recognize further that the product

17 reformulation necessary to meet these standards may take

18 time. However, we also believe that food industries

19 that cater to children are also concerned about their

20 health, and share our view that nothing is more

21 important than the health of children in this country.

22 So, in the discussion that's going to follow, we

23 urge industry to show us how competing or alternative

24 standards you might propose are compatible with the

25 health of our children, because that's the discussion
223

1 that we need to have. It needs to be based on the

2 merits of the foods that are advertised and nothing

3 else.

4 Thank you.

5 (Applause.)

6 MS. SCHNEEMAN: Great, thank you. I'm Barbara

7 Schneeman, from the FDA, and I have the enviable task of

8 walking through the standards that we have tentatively

9 agreed to, and as Michelle has indicated, this is still

10 a work in progress, and we look forward to the input

11 that we will get from this forum, as well as the input

12 that we will get from the Federal Register notice. I

13 think you can be most helpful to us in terms of focusing

14 on what you see works well in what we have developed and

15 what you think could work better, have we missed the

16 mark or not considered an important issue.

17 I will also point out that my task is to walk

18 you through the handout, and the standards, in terms of

19 our thinking behind each of the standards. Rob will

20 have the task then of kind of going back through that,

21 talking about some of the unresolved issues, some of the

22 questions that are still under consideration, some of

23 the things that we need additional input on so that you

24 see this is, indeed, a work in progress.

25 So, first of all, the resources that the working
224

1 group has used. I do want to highlight while you're

2 seeing four of us up here, as representing our various

3 agencies, I note we have all tapped into excellent

4 resources within our agencies. We have done data runs

5 to try and evaluate what is the impact that some of the

6 standards that we might apply. Some of which we've

7 accepted, some of which we've rejected. We've engaged

8 the expertise within our agencies to try and come up

9 with our best thinking about how to approach this task,

10 which has, indeed, been a challenging task.

11 So, while we're here to take the tomatoes, I

12 guess, we have colleagues who could share.

13 We also did look closely at the current

14 regulations, particularly those for health claims and

15 nutrient content claims. I refer you to the Code of

16 Federal Regulations, some of the criteria that are in

17 the CFR, we looked very closely at that to determine

18 when something that has already gone through a process

19 of vetting, and we know works, when we might be able to

20 tap into that and use that kind of criteria.

21 Of course, we have the 2005 Dietary Guidelines

22 for Americans, that is the basis for federal policy in

23 the area of nutrition, so we certainly wanted to be

24 aligned with the dietary guidelines.

25 The relevant reports from the National Academies
225

1 of Science, the Institute of Medicine and of particular

2 interest, of course, are the two key reports, the

3 Dietary Reference Intakes, especially the Macronutrient

4 Report, but all of the DRI reports, as well as the

5 Nutrition Standards For Foods in Schools. So, that just

6 gives you an idea of some of the materials that we

7 looked at, tried to evaluate in coming up with the

8 standards.

9 So, the first thing we felt we had to address is

10 that there are certain foods that are recognized in the

11 dietary guidelines as foods that are part of a healthful

12 diet, and we felt that these are foods we would want to

13 encourage their marketing to children as a part of a

14 healthful diet.

15 So, we created a foods exempt from standards II

16 and III, and our goal here, we're not sure that we have

17 the wording completely right yet, but our goal here is

18 really to talk about these foods in their most basic

19 form. So, 100 percent fruit or fruit juices, 100

20 percent vegetables or vegetable juices, and with that,

21 recognizing some might be processed, that they must not

22 exceed the 140 milligrams of sodium per RACC.

23 I realize not all of you will know RACC, RACC is

24 the reference amount customarily consumed. It's the

25 standard serving size that FDA has in the CFR.
226

1 But also then things like 100 percent non-fat

2 and low-fat milk and yogurt, 100 percent whole grain

3 products, and 100 percent water.

4 Again, the goal was to address those foods in

5 their most basic form, and these are all representative

6 of foods that are to be encouraged from the Dietary

7 Guidelines for Americans.

8 Now, when we moved to standard II and III,

9 standard II and III are intended to work together.

10 They're not two separate standards, they're standards

11 that build upon each other. So, they work together, not

12 separately. Standard II is, I think, a new concept to

13 consider, but again, it comes out of the Dietary

14 Guidelines for Americans, and that is that foods

15 marketed to children must provide a meaningful

16 contribution to a healthful diet.

17 If, in fact, children are going to achieve a

18 healthy diet, then the foods that they are choosing and

19 consuming should help them along that path. The

20 committee has two options to consider, and this is not

21 you can choose an option, this is we are trying to

22 choose an option. So, we're interested in the comments.

23 So, the first option that has been discussed by

24 the committee is that the food must contain at least 50

25 percent by weight, or one or more of the following:
227

1 Fruit, vegetables, whole grain, fat-free milk or low-fat

2 milk or yogurt, fish, extra lean meat or poultry, eggs,

3 nuts and seeds or beans. So, it's simply using a

4 by-weight criteria, does it make a meaningful

5 contribution to the diet.

6 Option B refers back to the concept of the

7 recommended serving. So, if we look at the food guide

8 developed by USDA, commonly known as My Pyramid, but

9 also referred to in the Dietary Guidelines for

10 Americans, there are several food groups that are

11 recommended, and if we take the approach of saying you

12 would typically achieve those food groups over four

13 eating occasions per day, three meals, one snack, then a

14 quarter of that recommended serving is what would

15 constitute a meaningful contribution of a food group

16 within a single food.

17 So, the numbers here under option B lay out what

18 would be a quarter of the food groups that are

19 encouraged or recommended. We recognize that in some

20 cases, that may be equivalent to the RACC, the reference

21 amount customarily consumed, so that is something we

22 would adjust for.

23 Then standard III recognizes that there are

24 nutrients to limit in the diet, and specifically, what

25 we focused on, and Bill gave you some of the background
228

1 here, we focused on saturated fat, trans fat, sugar, in

2 particular added sugars, and sodium. Again, focusing on

3 some of the key nutrients from the dietary guidelines.

4 So, for saturated fat, the criteria are

5 basically what FDA has used to evaluate the claim of low

6 in saturated fat, which is one gram or less per RACC,

7 reference amount customarily consumed, and not more than

8 15 percent of calories. For trans fat, we don't have a

9 reference value, so we simply set the criteria at zero

10 grams per RACC. Since there was no reference value that

11 we could use, other than to say zero.

12 Sugar was a bit more challenging. Again, we do

13 not have a reference value for sugar. To come up with

14 the number that we have, and I know many of you are

15 saying, oh, no, that's a different number than we just

16 heard about. But to come up with this number, we looked

17 at the Dietary Guidelines for Americans, and in a 2000

18 calorie diet, it refers to 267 calories that can be

19 considered discretionary calories.

20 So, if you convert that into grams of added

21 sugar, you take all of those calories, convert them into

22 grams of added sugar, and estimate, use the rule of

23 thumb that FDA uses that 20 percent of a daily value

24 would be considered high, you get to a value of 13 grams

25 of added sugar.
229

1 Now, what's important about this number is that

2 it's per RACC, it's not per label serving, it's per the

3 reference amount customarily consumed. The footnote

4 becomes very important in this context, because there

5 are many foods that have a small RACC. For example,

6 many of the cereals that we've been hearing about all

7 day have a small RACC, they're 30 grams or less. So, in

8 that case, the criteria applies to 50 grams of that

9 food. If I had done my arithmetic correctly, that means

10 that really in that smaller RACC food, if it were about

11 30 grams, a smaller RACC food, we're really talking more

12 seven to eight grams of added sugar.

13 So, that consideration of how that criteria

14 applied becomes very important.

15 Then with sodium, sodium, again, was a very

16 difficult number to evaluate, and I think our

17 inclination was to use the criteria for low sodium,

18 which is the 140 milligrams per RACC; however, you would

19 be amazed at how many foods get eliminated using that

20 criteria.

21 So, in this case, we went to the IOM report on

22 setting standards for competitive foods, in which they

23 used the 200 milligrams per portion. We felt that

24 perhaps this needed to be an interim value before we

25 could continue to ratchet down the criteria until we got
230

1 to a standard of low sodium.

2 So, that's just walking you through the

3 standards that where we are now, as tentative standards,

4 the thinking behind them. These apply to individual

5 foods, and this last slide is just to remind you that

6 standard I really sets what foods could be exempt from

7 standards II and III, whereas standard II and III are

8 meant to work together. There's an "and" between them,

9 not an "or" between them.

10 So, with that, I'm going to turn it over to Rob,

11 to go through some of the issues, concerns, questions

12 that are still under consideration.

13 (Applause.)

14 MR. POST: I think it might be helpful to go

15 through these and refer to the slides as we raise these

16 questions. So, thank you.

17 My role this afternoon, as you have heard, is to

18 look at the tentative proposed nutrition standards, and

19 review some of the questions and discussion issues that

20 we know we have and we think you probably will as well,

21 and perhaps others will come to mind, and we can promote

22 some discussion that will help us better frame the

23 questions, perhaps, in our Federal Register document.

24 Hopefully we'll get very helpful comments to help us

25 complete this task.
231

1 Well, the first set of questions that we thought

2 of on which we're soliciting comment relate to the

3 nutrition standards in general. We had some concerns

4 about the age category that we're dealing with, children

5 versus teens. The tentative standards were presented

6 for kids two to 17, as was noted, and that response to

7 the Congressional directive that we received.

8 So, we're asking, should we recommend standards

9 that include two age tiers, based on nutritional needs

10 and caloric intake of teens and younger children.

11 Further, should standards cover foods for children that

12 are less than two years of age. That wasn't a category

13 we were asked to deal with.

14 With regard as a general comment on the

15 standards, with regard to those standards generally,

16 they are representing proposed standards for foods, and

17 they focus on individual foods. We intend to also

18 establish criteria as needed for meals and main dishes,

19 which are categories of products that are defined in the

20 nutrition labeling regulations. What criteria in that

21 regard should be used to adjust to address larger

22 portion sizes for meals and main dishes? We're asking

23 that question, and you probably would think about that

24 as well.

25 With regard to non-specific brand advertising,
232

1 how will the criteria be applied to generic food brands,

2 and product line advertising, and advertising for

3 restaurant chains, rather than specific foods or menu

4 items.

5 With regard to nutrients to encourage, Barbara

6 described those. Our approach to nutrients to

7 encourage. The standards as described don't address

8 nutrients to encourage. The shortfall nutrients. We

9 were thinking of whether, in fact, we should establish a

10 separate set of criteria for shortfall nutrients to

11 encourage. If so, how should the issue of nutrient

12 fortification be addressed?

13 With regard to portion size and caloric limit,

14 should there be a criteria restricting the portion size

15 or calories of foods marketed to children? For example,

16 should the amount of product featured in an ad not

17 exceed the labeled serving size?

18 The next set of questions relate to standard I

19 that you see on this slide here. Foods exempt from

20 standards II and III, with regard to foods exempt from

21 standards II and III, are there foods that should be

22 added or eliminated from the foods that are exempt from

23 the other standards? We've provided a listing here, but

24 it's not exhaustive. So, you might consider what might

25 be added, or even removed from this list.
233

1 With regard to the sodium limit for vegetables,

2 as was noted, there's 140 milligrams of sodium or RACC

3 limit that we're suggesting. Regarding canned

4 vegetables, which are typically packed in a solution

5 that contains added salt, should the sodium limit for

6 vegetables be exempt, or be higher for canned

7 vegetables, since some of the sodium content is drained

8 away before consumption. We weren't sure on how to deal

9 with that.

10 The next set of questions that we haven't fully

11 completed our thought process on relate to the tentative

12 standard II on meaningful contributions of a food

13 component to a healthful diet. So, with regard to the

14 food groups, the list of food groups in standard II goes

15 beyond the food groups to encourage in the Dietary

16 Guidelines for Americans.

17 Are there food groups that should be added to or

18 eliminated from this list?

19 With regard to vegetables, regarding vegetables

20 in standard II, should the meaningful contribution of

21 vegetables in option A or B be limited to dark green

22 vegetables, orange vegetables, red vegetables, which are

23 specifically identified, given the already high

24 consumption of potatoes by children. Dark green, orange

25 and red vegetables are the specific types of vegetables
234

1 that Americans should consume more of.

2 With regard to option A and option B, in

3 general, considering both of them, what are the

4 advantages and disadvantages of these two options toward

5 promoting food group recommendations?

6 With regard to the calculation for option B, the

7 option B calculation, option B thresholds are based, as

8 was noted, on a 2000 calorie level, and it assumes that

9 people have four eating occasions per day. In this

10 scenario, does the calorie level or eating occasion need

11 to be adjusted for children?

12 With regard to the tentative proposed standards

13 that are identified in standard III, we also have some

14 questions to ask regarding nutrients to limit.

15 The proposed standard III limits are for

16 nutrients. Are there other nutrients or food

17 ingredients that should be limited? For example, total

18 fat, cholesterol, and then food ingredients like

19 non-nutritive sweeteners and caffeine.

20 On the issue of added versus total sugars, as

21 described, the sugar criterion is no more than 13 grams

22 of added sugar per RACC, or if the RACC is small, per 50

23 grams of food. Should a limit be set for total or added

24 sugars, and what are the challenges in verifying added

25 sugars content for those that manufacture foods.
235

1 Now, with regard to the calculation of the sugar

2 limit, we had thought about this, and the tentatively

3 proposed 13-gram limit is based on a 2000 calorie diet,

4 of which there should not be more than 267 discretionary

5 calories, as Barbara mentioned, to conform to the

6 dietary guidelines. Should discretionary calories from

7 solid fats and added sugars be adjusted down for

8 children, and should it be apportioned between sugar and

9 fat calories?

10 Also, with regard to the sodium limit that you

11 find in standard III, the 200-milligram criterion for

12 sodium is based on the April 2007 IOM report on

13 nutrition standards for foods in schools.

14 Consideration was given to the approach taken by

15 the more recent IOM report on school meals, and the

16 gradual reduction in sodium that it recommends, and that

17 is advised for schools. So, foods in schools.

18 Currently, low sodium foods contain less than

19 140 milligrams by definition. So, therefore, it's

20 proposed that the nutrition standards for marketing set

21 an interim limit for sodium. Is there a nutrition-based

22 rationale for establishing a limit higher than 140

23 milligrams, we would like to know that. Regarding a

24 gradual reduction of sodium in foods that can be

25 marketed, how can the sodium contents of such foods be
236

1 lowered? What are the methods for doing that?

2 With regard to some other general areas that

3 might come to mind, marketplace impact issues, for

4 example. There are some questions that were raised by

5 the group. In terms of general impact, regarding

6 general market impact, what impact will these standards

7 likely have on foods currently marketed to children?

8 What percentage of foods currently marketed will be

9 eliminated? To what extent can foods be reformulated to

10 comply? So, we would like information and a discussion

11 about that.

12 With regard to outliers, are there, in fact,

13 outlier foods that need to be addressed either with

14 specific restrictions, or specific allowances?

15 Looking at some unintended incentives, or

16 unintended consequences, do any of these standards

17 create incentives for manufacturers to reformulate in a

18 manner that would not improve the nutritional quality of

19 the product? For example, replacing sugar with flour or

20 a bulk filler, or using non-nutritive sweeteners to

21 qualify for lower added sugars.

22 With regard to the definition of marketing to

23 children, as Michelle had mentioned, there are probably

24 questions that relate to that area as well, but for our

25 discussion today, I think we would like to promote a
237

1 discussion that relates more to the nutrition standards,

2 but there will be ample time to comment in that regard

3 with the Federal Register document that we're planning.

4 So, with that, I think I've given you some food

5 for thought, hopefully food that meets our nutritional

6 standards, and by the way, the tomato issue really

7 doesn't bother me, because tomatoes are among those

8 vegetables that we're trying to promote.

9 So, with that.

10 MS. RUSK: As long as they're low sodium. Thank

11 you, Rob.

12 (Applause.)

13 MS. RUSK: So, we've had a few months to wrestle

14 with all of these issues, and I know it's a lot for this

15 audience to take in all in one sitting, so you may need

16 a few moments to catch your breath and gather your

17 thoughts. Maybe not. Actually, why don't we start with

18 a question from Dale.

19 DR. KUNKEL: I'm not sure if this is an issue

20 that you've thought of, but having studied advertising

21 to children very carefully, historically, there are not

22 always clearly identifiable products in the ads. For

23 example, a McDonald's ad could promote the brand but not

24 a specific product, and in one case, I had to make a

25 judgment how I was going to classify the product based
238

1 on a visual of the product on the bed stand for less

2 than a second in a 30-second ad.

3 So, have you thought about how these guidelines

4 would apply to an ad that might not promote a specific

5 product, out of fear that companies could potentially

6 evade the guidelines by just having branded advertising?

7 MS. RUSK: We have thought about that, and I

8 think we've thought about it in connection with other

9 food advertising matters that we've handled and with our

10 food marketing study, and it was one of the litany of

11 questions that we have yet to resolve, but I think it's

12 a very valid issue, and I think one approach may be that

13 if it's a branded ad without specific products depicted,

14 we would be looking at nutrition of the whole line of

15 products.

16 Yes, in the back there?

17 MS. CLARK: This question is for Barbara. In

18 going through the guidelines that you indicated for

19 added sugar, I would just like to have clarity on how

20 you propose to track that, because the current

21 regulations require total sugar to be disclosed on the

22 label, and that's what we do in the industry, so just

23 some idea of how you plan to monitor that.

24 MS. RUSK: Thank you. Before we go any further,

25 I think I didn't ask Dale to identify himself, because
239

1 he was just on the previous panel, but I wonder for

2 those of you who don't know, if you could identify

3 yourself for us.

4 MS. CLARK: Celeste Clark, Kellogg Company.

5 MS. RUSK: Thanks.

6 MS. SCHNEEMAN: The issue of added sugars is a

7 question that we have in our list of questions and

8 issues. I would say the scientific issue is a very

9 challenging one, because if you look at the Dietary

10 Guidelines for Americans, the focus is on added sugars.

11 That's where it's either excess calories or it's

12 displacing more nutrient-rich foods in the diet.

13 So, it's what the dietary guidelines focuses on,

14 it's what the IOM, macronutrient report focuses on, and

15 we don't want to create a situation where you could have

16 total sugars, but you have 99 percent of it is added

17 sugar, but it's still just under the total sugars

18 marker.

19 So, from a scientific nutrition point of view,

20 we feel it's important to get to the issue of added

21 sugars, that's where the public health issue seems to

22 be. We are asking for comment and input on how can we

23 make that a useful criteria, particularly since at this

24 point, it's not a regulatory standard, it's something

25 that we would like to see that the industry could
240

1 embrace, moving in that direction.

2 MS. RUSK: Over here? In the front row, I think

3 we have a question.

4 MS. ANG: I was wondering if you considered --

5 MS. RUSK: Again, if you could identify

6 yourself.

7 MS. ANG: I'm Angelique Ang [phonetic] from

8 Children's National. I was wondering if you considered

9 some limitations on highly processed foods or food

10 products as opposed to what we would traditionally call

11 foods, or if these standards were part of getting at

12 that issue.

13 MS. RUSK: Go ahead.

14 MS. SCHNEEMAN: Actually, I think one of the

15 initial phases and where a lot of people begin with this

16 is we had a standard on foods exempt from the standards,

17 since they are part of a healthful diet, and you

18 instantly start to think of are there foods that you

19 would just simply say categorically should not be

20 marketed to children. Certainly there has been

21 discussion of that, but once we became engaged in the

22 kind of issues that are outlined in standard II and

23 standard III, then these standards seemed to take over

24 that issue, that you're less focused on what shouldn't

25 be marketed and you're more focused on what could be
241

1 marketed within the context of these standards.

2 MS. ANG: My only concern is that there's still

3 room for all kinds of additives and preservatives and

4 unnatural flavorings and those kinds of things.

5 MS. RUSK: But the comment was a concern that

6 there's still room for all kinds of additives and other

7 ingredients that might be of concern to children's

8 health, and that is a point that we've talked about

9 within the group and something that we will be

10 specifically asking, I think, in our Federal Register

11 notice.

12 I see a question -- I'm sorry, Rob.

13 MR. POST: Just to follow up, too. The idea

14 that we are looking at a contribution of foods to

15 encourage or food groups to encourage, or food

16 components, helps address that as well, and if you have

17 comments in that regard, in terms of the benefits of

18 whole grains and vegetables, please provide those

19 comments.

20 MS. RUSK: Bill, did you want to add anything to

21 that?

22 MR. DIETZ: No.

23 MS. RUSK: I think there's a question in the

24 back over there.

25 MR. JAFFE: Dan Jaffe with the Association of
242

1 National Advertisers. Just having eyeballed this

2 proposal, I can see immediately that while I don't in

3 any sense have the full import, this is an extremely

4 complicated proposal that's going to affect a very wide

5 range of our members, and going to have extremely broad

6 impact on the advertising community.

7 So, I was wondering, are you giving a fairly

8 substantial amount of time for comments back? Have you

9 thought out how long that could be? Because I can

10 assure you just looking at it for two seconds, that

11 there's going to be a lot of time that people are going

12 to need to have to really dig into all of this.

13 MS. RUSK: I think that we do want to make sure

14 that we give ample opportunity for people to give us

15 well-thought-out comments and to get valuable

16 information. On the other hand, we're also balancing

17 the constraints of a July 2010 deadline for getting a

18 report to Congress. But certainly, we want to work with

19 everybody to make sure that we're getting detailed and

20 useful feedback from the industry, and I think Bill

21 alluded to this in his opening remarks that we do

22 appreciate the import of what we are recommending and we

23 do appreciate that this is something that would be

24 challenging for the industry.

25 MR. JACOBSON: Mike Jacobson from the Center for
243

1 Science for the Public Interest.

2 I have three quick things. One is Dr. Dietz, I

3 think, could have gone farther in the harmfulness of

4 salt. Salty foods induce thirst, and what kids often

5 drink is fruit drinks or soft drinks, soda pop.

6 On the comments about various additives added to

7 foods, I think the committee should be aware that in the

8 Institute of Medicine Report on School Foods, there was

9 a question about the safety of artificial sweeteners for

10 children, and also the National Institute For Mental

11 Health acknowledges that food dyes may cause

12 hyperactivity in some children.

13 The third thing is, option A and B in standard

14 II, they're complicated. You said you have done

15 computer runs on looking at the effects of various

16 proposals. I think it would be very helpful if you

17 could provide the public with examples of what's the

18 import of choosing option A versus option B? Which

19 products might be included or excluded with these kinds

20 of options.

21 MS. RUSK: Okay. Thank you. So, I think that

22 we will be looking for the kind of input that you're

23 giving in terms of the specific threshold on salt, it

24 was something that we had a lot of discussion on, as

25 well as additives, food coloration, artificial
244

1 sweeteners, that's something that we anticipate getting

2 input on in terms of whether there are other nutrients

3 or ingredients to limit that would advance the mission

4 of these standards. I think I'll let Rob comment on

5 sort of some of the food runs that we did and what data

6 may be available actually soon for everybody to use.

7 MR. POST: As Barbara had mentioned, and

8 Michelle as well, we did, in fact, plug in these

9 nutritional standards into real life effects here, and

10 will consider how we can provide that information,

11 perhaps in the Federal Register document, to show how

12 the various standards will be applied. Ultimately how

13 an option A or option B will play out for standard II.

14 MR. DIETZ: I would also fully expect that we

15 are going to see that from industry. That would be

16 useful data for the food industry to provide us so we

17 get a better sense of the scope and impact of these

18 standards.

19 MR. POST: To add to that, exactly. The

20 formulations and the intricacies of formulating foods

21 we're not fully aware of. There might be foods that we

22 just haven't thought of in terms of the effects. So, we

23 would look forward to manufacturers giving us more

24 information on that.

25 MR. MacLEOD: Bill MacLeod from the law firm of
245

1 Kelley, Drye & Warren.

2 Could you elaborate on how you would define

3 advertising to children two to 17, what factors you

4 would take into account in determining what is marketing

5 or advertising to individuals of those ages?

6 MS. RUSK: Yes, I'm not sure if you came in

7 after my opening, we are using, Bill, as a template the

8 definitions that are in the appendix to our 2008 report,

9 and the food marketing study. So, that defines a set of

10 marketing activities for children, as well as

11 adolescents. We felt like that was the right template

12 to start with, because it was one that has been vetted

13 already, it's one that seems to be workable, at least as

14 a starting point, it's one that many of the large food

15 manufacturers used when they submitted data to us for

16 the study.

17 So, the categories of marketing that are

18 covered, and the indicators for when something is

19 child-directed are in that appendix to our study, but we

20 certainly recognize that that's a template and a

21 starting point and that that will be likely the subject

22 of comment as well.

23 MR. FAVOLI: Jared Favoli from Dow Jones.

24 I guess from a nonscientific perspective, can

25 you explain the importance of these recommendations and
246

1 also what do you expect or what do you want to happen

2 with these recommendations once they get to Congress?

3 MR. DIETZ: Well, the impact of these standards,

4 we hope, is going to improve the health of children, as

5 I stated in my introductory comments. They're certainly

6 open for input, because they are quite a challenge,

7 based on what analyses we've done for industry.

8 On the other hand, we were governed by our best

9 guess, and in some cases it was a guess, some cases it

10 was based in reasonably sound data that these were

11 healthful standards, and would like input, as I said,

12 about whether people agree with that or if industry or

13 others can produce competing standards based on the

14 judgment about what's best for children's health.

15 That's what governed our decision.

16 With respect to this report delivered to

17 Congress, I think that's the task that we were assigned.

18 These are, as Michelle indicated, these are voluntary.

19 This is not a regulatory process, but as earlier

20 speakers pointed out, there's a lot of inconsistency

21 about the standards that are currently available in

22 terms of what companies are doing. We hope to improve

23 that, to set some goals for industry that would improve

24 the health of children and hopefully adhere voluntarily

25 to what we've proposed.
247

1 MR. FAVOLI: May I ask a follow-up?

2 MS. RUSK: Can we use the microphone, also for

3 the webcast I think it's important that we have a

4 microphone.

5 MR. FAVOLI: I guess one thing I'm confused

6 about is are these nutritional standards or marketing

7 limits?

8 MR. DIETZ: These are nutritional standards.

9 MS. RUSK: Well, yes, they are nutritional

10 standards, but the idea is they would govern what foods

11 would be marketed, advertised, in children's media.

12 It's not what foods can be produced and sold in the

13 marketplace, it's what foods do we think it's

14 appropriate for the industry to encourage children to

15 eat.

16 So, we want to see the food industry encouraging

17 them to eat foods that are not high in empty calories,

18 that are high in nutrition.

19 MS. WOOTAN: I'm Margo Wootan with the Center

20 For Science in the Public Interest.

21 I was glad to hear, Robert, some of the

22 additional issues that you all were working on, because

23 as Barbara was going through, I was thinking what about

24 meals and what about brands and what about portion sizes

25 that are depicted, you know, issues that we have seen
248

1 come up. So, I think those are all important

2 considerations.

3 I was very intrigued by the food-based approach

4 that it's not something that we've seen as much with

5 individual company marketing standards, and I need to

6 process it a little bit more, but I think it's very

7 interesting and promising.

8 I was wondering why you included some of the

9 food groups that are not among the food groups to

10 encourage in the dietary guidelines? It's clear fruits,

11 vegetables, low-fat dairy, whole grains are things that

12 kids are not eating enough of, and we need to market

13 them and encourage kids to eat them, but why did you

14 decide to include meat and eggs and some of the other

15 foods which kids are getting plenty of protein that are

16 not areas of concern in the diet?

17 MS. SCHNEEMAN: I can comment, and Rob may have

18 some comments as well. We discussed that issue, and it

19 is important to keep in mind that there is a food guide

20 that outlines what is an overall healthful dietary

21 pattern, and so we recognize that certain foods we need

22 to get more of and those have been outlined in the

23 dietary guidelines, and yet there are foods that are

24 part of a healthful diet.

25 So, it's not that we should not be telling
249

1 children to eat them. I mean, they are part of the

2 healthful diet. So, is the purpose here only to focus

3 on meeting the dietary guidelines, or focusing on a

4 specific recommendation in the dietary guidelines, or is

5 the focus to recognize the overall pattern of a

6 healthful diet and that those are foods that could be

7 appropriate to be marketed to children if, in fact, a

8 food makes a meaningful contribution toward that overall

9 dietary pattern.

10 MR. POST: I was going to say that it is a

11 dietary pattern focus here that we thought was useful.

12 So, the idea that, as Barbara said, you can build a diet

13 with a lot of foods, there are probably more foods that

14 you should be consuming more often.

15 The other point I would like to make is that we

16 did mention or we do list actually meat, I mean, we do

17 take into consideration that there is a need for lower

18 fat versions of foods or where fish has been an emphasis

19 as well. That's part of a healthful diet.

20 MS. RUSK: Stunned silence. Do we have any

21 questions from the Internet as well? I don't know if

22 there are any cards from our webcast viewers.

23 Go ahead.

24 UNIDENTIFIED FEMALE SPEAKER: Since there's

25 total silence, I am going to ask a question as a mother
250

1 as opposed to the attorney, which is why I'm here, and I

2 work for NPLAN.

3 MS. RUSK: Your name?

4 MS. GRAFF: Samantha Graff.

5 My question is, whole grains, I'm not sure I

6 understand it. Because I just understood you to say

7 that Lucky Charms is one of the top three worst cereals

8 for you, and yet it's advertised on the product front as

9 having or being whole grain and promoting whole grain.

10 My understanding is that it has something to do with 51

11 percent whole grain, and then here it says 50 percent.

12 So, how does that shake down is my question?

13 MS. SCHNEEMAN: A good question and I think your

14 question points to the confusion that people often have.

15 So, depending on which option you looked at, option A or

16 option B, we would set a standard for if you're going to

17 market that cereal to children, then you have to meet a

18 certain amount of whole grain. That's the food group

19 that that food is going to make a meaningful

20 contribution, as well as meeting the requirements on

21 nutrients to limit.

22 So, this would be the first time that someone

23 from the Federal Government we would say, gosh, if

24 you're going to market that to children, and you're

25 going to use whole grain as part of the marketing, you
251

1 should have at least this much within the product, and

2 they can obviously provide that information, they could

3 add more than that amount of whole grain, within the

4 product. This is not a limit, they can do more than

5 that.

6 So, I think it's setting a bar to say this is

7 what you should have for that particular food group,

8 food category.

9 Does that help address your question?

10 MR. DIETZ: And it also has to meet standard

11 III.

12 MS. GRAFF: I understood that.

13 MS. RUSK: Over here?

14 MS. SCHNEEMAN: If I could maybe just add

15 another comment to that, I think one of the other issues

16 that has come up during the day, and it came up in the

17 issues that we're looking at, when we set standards like

18 this, does it also provide an incentive for

19 reformulation.

20 So, for example, if your kid's favorite cereal

21 has a little bit of whole grain in it, but it doesn't

22 have this much whole grain in it, does it encourage the

23 manufacturer to increase the amount of whole grain so it

24 now meets the standard, and that's part of what we're

25 interested in, is this a way of encouraging
252

1 reformulation in the right direction.

2 MS. AMENT: Lucy Ament with Chemical News.

3 Have you been charged by Congress also with

4 coming up with possible penalties for compliance

5 enforcement options if companies advertise that they

6 meet the particular standards that you eventually come

7 up with?

8 MS. RUSK: No, not in this Appropriations Act

9 language, no, it was definitely a mandate to issue

10 findings and recommendations and put those in a report

11 to Congress.

12 MS. LEVIN: Hi, Susan Levin from the Physicians

13 Committee For Responsible Medicine.

14 The 15 percent, no more than 15 percent of

15 calories from saturated fat seems a little high,

16 considering the American Heart Association's

17 recommendations are less than seven and the dietary

18 guidelines less than ten. How did you get to that

19 number?

20 MS. SCHNEEMAN: The number for saturated fat is

21 actually, that's one we took straight out of the Code of

22 Federal Regulations that defines, it's how low saturated

23 fat is defined in the criteria, and so that's one, I

24 mean, all of these, you're welcome to comment on, if you

25 think there's another standard that we should be looking
253

1 at or evaluating.

2 MS. RUSK: It isn't just 15 percent, it's also

3 one gram or less.

4 MR. LINUS: Jake Linus with PBS.

5 Quick question, since this is such a large age

6 range of kids, if you were to pick an age to split your

7 recommendations, do you have one in mind across your

8 panel?

9 MS. RUSK: Well, I think there are kind of two

10 ways that you can think about that question. One is how

11 foods are marketed, and what the target audience is in

12 the media, and one is the nutritional needs of different

13 aged children. In terms of the marketing, I think a lot

14 of the media is naturally kind of divided into children

15 two to 11, adolescents 12 to 17, and that's the way our

16 food marketing study looked at that and looked at the

17 marketing.

18 In terms of nutrition, I'll leave that for

19 others to respond.

20 MR. DIETZ: On the nutrition side, there's some

21 concordance, because adolescents is a time of higher

22 nutrient requirement. So, but the dividing point isn't

23 very explicit or clear.

24 MS. WEBER: Jennifer Weber with the American

25 Dietetic Association.
254

1 On the standard I, you have the note that says

2 100 percent how you defined it, and then it says,

3 "Except flavoring for water, milk and yogurt." Could

4 you provide some additional information on your

5 definition for flavoring?

6 MS. SCHNEEMAN: Right. I don't know that this

7 is the final wording that we will have, obviously we

8 don't know if this is the final wording we're going to

9 have on everything, but again, what we were trying to do

10 is make sure we categorize this in a way that said we're

11 trying to get to the basic form of the food, and really

12 modifications that are not changing the amount of solids

13 from fruits or changing the basic nature of the fruit

14 juice, I think this particularly applied for the fruit

15 juices, the milk and the yogurt.

16 We recognize that for flavored milk and yogurt

17 products, we think those can be evaluated using standard

18 II and III. So, once you start adding a lot of other

19 ingredients to any of these food products, then you can

20 look at them under standard II and III.

21 What we were trying to do in standard I is just

22 what foods get a pass. You don't even have to look at

23 standard II and III. So, all foods can be considered at

24 some point, it's whether or not they get exempted from

25 II and III.
255

1 MR. POST: I might also add that there's a

2 benefit to perhaps consuming, in our view, instead of

3 sugared beverages, drinking water, and if it makes it

4 more palatable, in terms of adding flavoring, then that

5 should give it a pass. That was also part of the

6 thinking here. Understanding that flavored milk is low

7 fat or fat free, flavored milk is also potentially

8 better than perhaps a sugared beverage as well. So,

9 flavoring is also an opportunity to be in these

10 products. We believe, at least the way we have

11 tentatively proposed it.

12 MS. RUSK: I think we have time for maybe two or

13 three more questions. I see somebody over here.

14 MS. FOX: Tracey Fox, Policy Consultants, and

15 having worked on the IOM committee for Whole Foods, you

16 all have struggled a lot I know and I think your list of

17 questions is a very good list.

18 I just had a follow-up question on the flavoring

19 one. I thought I understood the answer, and now I'm not

20 sure I do. So, flavored milk would also generally have

21 added sugar. Does that bump it automatically down to

22 the review process of standard II and III?

23 MS. RUSK: Yes.

24 MS. SCHNEEMAN: Yeah, it bumps it.

25 MS. FOX: I thought I heard something different,
256

1 but thank you.

2 MS. RUSK: Anybody who hasn't yet had a chance

3 to ask a question? Okay, we'll go here and here and

4 then I think we can wrap.

5 MS. AMENT: Again, Lucy Ament with Chemical

6 News.

7 Have you given any consideration to where foods

8 fall on the glycemic index? I am not a dietician, but

9 from what I understand, skim milk may be low in fat and

10 sugar, but they enter the blood stream more quickly and

11 can lead to spikes in that index.

12 MR. DIETZ: No.

13 MS. SCHNEEMAN: Again, I would just refer you to

14 the IOM report, the macronutrient report, it has a

15 discussion of glycemic index and how the IOM, the

16 recommendations it made with regard to that information.

17 So, that's where we're guided is from the IOM report.

18 MS. RUSK: One last question, go ahead.

19 MS. CROCKETT: On the 0.75 ounces. Susan

20 Crockett, I work at General Mills. On the 0.75 ounce

21 equivalent of whole grain, is that 0.75 of 30 grams or

22 0.75 of 16 grams? Because I've understood at one point

23 that since 16 grams of whole grain flour in a slice of

24 bread that that was the amount of whole grain in an

25 ounce equivalent, but I'm just asking what your thought
257

1 was.

2 MS. SCHNEEMAN: You know, when we do the full

3 report, I know that the ounce equivalence, I don't have

4 all my notes here, and so I know the ounce equivalence

5 on whole grains gets complicated very quickly, but we

6 will have that description of how it is we're using that

7 concept of the ounce equivalence for the whole grain,

8 but I'm not going to try and repeat it now because I

9 don't have my notes sitting in front of me.

10 MS. CROCKETT: It came out of USDA, Robert, do

11 you have a response?

12 MR. POST: Yes, that unit of ounce equivalence,

13 yes, that's based on my pyramid recommendations.

14 MS. RUSK: Okay, we will finish with one

15 question from our web audience, I think, and I will just

16 read it, rather than paraphrase it. Susie, it looks

17 like this comes from a colleague of yours at General

18 Mills.

19 Did you take into account the extensive body of

20 peer-reviewed scientific evidence conducted over the

21 past three decades that demonstrate the health benefits

22 associated with ready-to-eat cereal consumption, all

23 sweetness levels, including healthier body weight,

24 improved nutrient intake, increased levels of activity,

25 improved cognition and improved lipid levels, especially
258

1 for children?

2 MS. SCHNEEMAN: I would comment that our

3 approach is not to target one particular food and exempt

4 one particular food or other than what we've tried to do

5 in standard I. So, I know it's very easy for people to

6 hone in on one category of food, that's not really the

7 approach that we use. We really tried to think about

8 what's in standard I, what are foods that are part of a

9 healthful diet, standard II and III, how do we make

10 those two concepts work together.

11 Obviously, one of the goals of doing the data

12 runs that we're doing is to make sure that it has face

13 value, that when we looked at what comes out of the

14 criteria, it makes sense, but we're not trying to

15 develop criteria, see what foods get added or

16 eliminated, it's really what's the rationale for the

17 criteria, how can we use the resources that we have

18 available, the experience of many people trying to

19 develop these criteria, and then move from there to make

20 some recommendations.

21 MS. RUSK: Okay, and I think with that, as I

22 said, we will be providing ample opportunity for more

23 detailed comment from everybody and we're looking

24 forward to getting that information. We really are

25 looking for your help on resolving some of the difficult
259

1 questions still and I would like to introduce or maybe

2 Keith, do you want to, or Bureau Director David Vladeck

3 to adjourn the conference and tell us about the next

4 steps.

5 (Applause.)

6 MR. VLADECK: I promise to get you out of here

7 by 5:00, so I will be brief.

8 This has been a fascinating, exhilarating,

9 somewhat exhausting day, but I would like to begin by

10 thanking the wonderful staff, the peerless staff who

11 made today possible, including BCP staff, Mary Engle,

12 Heather Hippsley, Keith Fentonmiller, Michelle Rusk,

13 Kyle Young, Mary Johnson, Sarah Botha, Carol Jennings,

14 Diana Finegold, Will Ducklow, T. J. Peeler, Deborah

15 Clarke, Wayne Abromovich, and our stalwart Bureau of

16 Economics colleague, Pauline Ippolito.

17 So, we also greatly appreciate those of you who

18 are here today, those of you who were panelists, who

19 contributed to the discussion, and for those of you who

20 are watching on the web.

21 These are difficult issues. We're going to need

22 your help. We welcome your input. We're going to need

23 your comments as the SNAC PAC moves forward. So, we

24 think of this as the start of an important dialogue, and

25 we really do welcome it and need your input.
260

1 Let me give you just some thoughts about what

2 we've heard today and what relevance it has to our work.

3 First, we heard evidence correlating advertising for

4 children and their preferences for and consumption of

5 unhealthy foods. Exactly the kinds of foods that should

6 not be the mainstays of a child's diet. We also heard

7 about recent research on the causal impact of marketing

8 on children's food preferences, purchase requests and

9 short-term consumption.

10 This is a particular concern in an age of

11 integrated marketing techniques with the use of

12 ubiquitous and immersive marketing techniques with

13 strong emotional appeal that may circumvent the

14 reasoning capacities of the developing brain. Having

15 raised two boys, I'm still waiting for that moment to

16 happen, and they're in their twenties. But we can't

17 ignore the science. The science is going to have to

18 inform how we move forward.

19 Next, our panel of First Amendment experts

20 discussed the legal implications of regulating

21 advertising to children. We explored the idea that

22 Commercial Speech Doctrine presumes that rational actors

23 will make decisions based on information provided in

24 part by advertising. Much of the advertising to

25 children, however, doesn't fit this model. These ads
261

1 don't convey information. They try to elicit emotional

2 response. For example, by marketing the idea that food

3 is fun, to create positive psychological association

4 with brands. Are these ads entitled to full bore

5 commercial speech protection? I think our panel was

6 divided on that question. I think that's an

7 understatement.

8 (Laughter.)

9 MR. VLADECK: Research will also suggest that

10 the developing brains of children and teens are more

11 heavily influenced by non-informational advertising

12 messages, and that the hypothetical rational adult

13 around whom commercial speech jurisprudence centers is

14 not the children who are the target of these ads are.

15 So, the question remains whether the existing

16 law can accommodate governmental restrictions on child

17 or teen-directed advertising, a question our panel found

18 unresolved by existing case law, but remains an

19 important issue.

20 We would not be talking about government

21 regulation if industry self-regulation had made greater

22 strides. To be sure, I want to acknowledge CBBB's work

23 to get most of the major food marketers to agree on the

24 need to improve the nutritional profile of foods

25 marketed to kids. That is important. But I know that
262

1 the industry members understood that their pledges would

2 be a moving target as we move forward.

3 I think it is clear that the target must move

4 farther and faster. The stakes are too high to settle

5 for partial improvement, or improvements made at a

6 snail's pace. These companies should extend their

7 pledges to encompass all forms of marketing, including

8 product packaging.

9 Responsibility rests with the entertainment

10 companies as well. Companies like Disney are to be

11 commended for their positive messaging on health issues

12 and for imposing nutritional standards on their

13 licensees. That's all to the good. But again, the

14 reality is that these companies still run lots of ads

15 for unhealthy foods. Just flip on Nickelodeon, Cartoon

16 Network, or Disney XD, which we have running constantly

17 in the Bureau of Consumer Protection, or go to their

18 websites, and you'll see what we mean. That, too, must

19 change.

20 Finally, we heard from the Interagency Working

21 Group on Food Marketed to Children, or what we

22 effectually call the SNAC PAC. Here they are. Our

23 version of the Mod Squad. SNAC PAC's guiding principle

24 is that the food industry should not encourage children

25 to eat high-calorie, low-nutrition foods, but this
263

1 should be our collective goal. Our children are

2 important. These foods are enticing enough without the

3 marketing muscle of Madison Avenue behind them.

4 The draft nutritional standards the FTC and our

5 sister agencies have proposed today are our first cut on

6 defining what foods children should be encouraged to

7 eat. We will seek public comment on them before

8 announcing the final standards in the July 2010 report.

9 To be clear, these standards will not be

10 regulations. They will not be binding, but we expect

11 the food industry to make great strides in limiting

12 children-directed marketing to foods that meet these

13 standards. If not, I suspect that Congress may decide

14 for all of us what additional steps are required.

15 In the meantime, the FTC is gearing up to follow

16 up on our previous report on marketing food to children

17 and adolescents. In the spring, we will be serving

18 compulsory process orders on major food and beverage

19 companies that market to children and adolescents. You

20 all know this is coming. The data we collect will

21 enable us to gauge how food marketing activities and

22 expenditures have changed since 2006, as well as the

23 overall nutritional profile of those foods.

24 In sum, the FTC will continue to look closely at

25 food marketing to kids. Not simply because of
264

1 Congressional mandates, but because it's the right thing

2 to do. The status quo is unacceptable. We must stop

3 posturing about responsible self-regulation and get to

4 it. The public demands better, and unless there are

5 substantial advances, our public officials will as well.

6 So, thank you for joining us today. We want to

7 hear from you as we move forward. Thanks so much.

8 (Applause.)

9 (Whereupon, at 4:53 p.m., the forum was

10 concluded.)

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 
265

1 C E R T I F I C A T I O N O F R E P O R T E R

2 

3 DOCKET/FILE NUMBER: P034519

4 CASE TITLE: SIZING UP FOOD MARKETING AND CHILDHOOD

5 OBESITY

6 DATE: DECEMBER 15, 2009

7 

8 I HEREBY CERTIFY that the transcript contained

9 herein is a full and accurate transcript of the notes

10 taken by me at the hearing on the above cause before the

11 FEDERAL TRADE COMMISSION to the best of my knowledge and

12 belief.

13 DATED: 12/21/09

14 

15 

16 SALLY JO QUADE

17 

18 C E R T I F I C A T I O N O F P R O O F R E A D E R

19 

20 I HEREBY CERTIFY that I proofread the transcript

21 for accuracy in spelling, hyphenation, punctuation and

22 format.

23 

24 

25 SARA J. VANCE