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Commerce Vets FTC Nominees

Federal Trade Commission Chairman Jon Leibowitz tried to assure Republican and Democratic legislators alike that when the final voluntary recommendations from the commission are released on food marketing to kids, they will be balanced, modified from the earlier draft, totally voluntary and essentially unenforceable.

That came in his Senate Commerce Committee renomination hearing. Also on the hot seat, though the welcome was essentially warm for both, was Maureen Ohlhausen, the former long-time FTC official up for an open Republican seat on the commission.

Sen. Kay Bailey Hutchison (R-Tx.) expressed the most concern about the proposed food marketing guidelines, whose original draft drew heavy fire from ad agencies for being overly restricted. She pointed out that some of the foods -- yogurt and 2% milk -- whose marketing the guidelines suggested could be restricted, were on the list of foods approved HHS and the Agriculture Department in their 2010 dietary guidelines. 

Leibowitz said he hoped to get the FTC's final recommendations out soon, but said they were only that. He pointed out that the FTC's portion of the interagency working group recommendations were focused on marketing, not dietary guidelines, and that he, too, was surprised when he learned that his daughter's breakfast of Special K and yogurt would not pass muster. As he has said before, the guidelines have been modified to reflect stakeholder input, including recommending they apply to 2-11 year olds rather than extending them to up to 17-year-olds. There will also be other carve-outs. In fact, he said the new guidelines will pretty much track with self-regulatory proposals by industry, which he pointed out the release of the draft guidelines helped prompt after half a decade of pushing by the FTC.

He likened the modified recommendations as a "more balanced nutritional meal" of sorts, compared to the initial draft.

Leibowitz made the point even clearer, saying that the FTC has not intention of regulating food marketing, doesn't have the authority to do so if it did, and would run into First Amendment problems to boot.

Committee Chair Jay Rockefeller (D-W. Va.) asked how Leibowitz would make it easier for consumers to prevent online tracking, suggesting the ideal would be a single button that would send the message "to everyone for all time" that unless it was retracted, they did not want to be tracked. Rockefeller has proposed do not track legislation.

Leibowitz said that do not track "needs to be one click away," but he also said that he was seeing lots of support in the ad industry for various versions of do-not-track; Leibowitz reiterated his support for a browser-based approach like that of Microsoft and Mozilla. He also said the Digital Advertising Alliance -- which is promoting an opt-out icon -- has taken "very meaningful strides" toward do not track in a couple of clicks.

He said he had been speaking to an ad industry conference and was surprised at how much support there was for consumer control of their info, but then suggested that was not such a surprise. He said that the more power consumers have, the more comfortable they are with online commerce, and the more trust they have, the more commerce they will be doing.

He said he thought the industry had gotten the message that the sky would not fall, but still said that if there is not more progress, he was sure Rockefeller's do not track bill would move through Congress and he would help. And of course, he added, if companies promise privacy and security they don't deliver, the FTC will go after them, as it has others, using its authority to prevent false and deceptive claims.

Ohalhausen added that consumers preferences and choices needed to be respected, and that she would talk to FTC staff about the feasibiilty of some sort of one-click do-not-track through the browser or some other way, as well as get the views of the Digital Advertising Alliance on self-regulation. She said she agreed that it was important that consumers have confidence in how information is used and collected.

Rockefeller also expressed concerns during the hearing about a recent Charlie Rose interview with Facebook CEO Mark Zucerkberg and COO Sheryl Sandberg. He said that while they had talked about the world being theirs and about how they were the future, he said he got no sense of restraint or the potential of collateral damage.

The FTC has been looking into complaints about Facebook's privacy policies and changing settings without notifying users, which Leibowitz said he could not talk about and Rockefeller agreed. But Rockefeller was under no such restriction, and suggested the FTC should consider requiring informed consent from users for any Facebook changes in those privacy policies, plus "rigorous enforcement."

Leibowitz said he heard the chairman "loud and clear."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.