Legislators Say Food Marketing Guidelines Need Study

Food marketing principles gave legislators a lot to chew on Wednesday.

The first panel of a joint hearing Wednesday on government-proposed food marketing guidelines featured government officials explaining that the principles, announced last April, are only voluntary recommendations to Congress that industry can ignore if they chose, while legislators, primarily Republicans, countering that they represent Big Brother government intruding into meal planning for families and a focus on marketing, without scientific backing, rather than focusing on more physical activity.

The focus of the hearing was the FTC's April release of the guidelines, released by an interagency working group (IWG) in response to a request from Congress.

Republican lawmakers pointed out that Congress had asked for a study, which was over a year overdue, and what it got was recommendations to industry, not advice to Congress, and so far no study on which to base those recommendations.

FTC official David Vladeck, who nearly wore himself out repeating that the guidelines were voluntary and had no force of law, said the report should be out by the end of the year. He even said that if he could coordinate it with the other agencies involved -- USDA, FDA, CDC -- he would put a note in the final report that they were recommendation and should not be the basis of any civil litigation against food marketers or producers. One of the legislators' complaints was that voluntary guidelines could be used as the basis for class action suits.

Vladeck also pointed out that the Children's Food and Beverage Advertising Initiative (CFBAI) had instituted new, standardized, marketing criteria that already addressed some of the issues raised by the guidelines and would likely be incorporated, or at least taken into account, into the final recommendations. "That is good news," said Elaine Kolish, VP of and director of CFBAI.

Health Subcommittee Chairman Joe Pitts (R-Pa.) said the IWG guidelines -- IWG called them "principles" -- should be withdrawn and the study should be completed ASAP. Pitts was one of several legislators who asked what would happen when litigious groups sued food manufacturers based on the guidelines.

Republicans focused on potential loss of jobs from the restrictions on what types of foods could be marketed to kids, saying it could cost 74,000 jobs per year and cost media billions in ad dollars. Vladeck countered that the new CFBAI standards suggested that the industry could modify its marketing without killing the category and that those estimates of billions of lost dollars were based on the assumption that all those kids ads would go away, which wasn't going to happen.

One legislator suggested that CFBAI may have made that move because they feared the government. Vladeck said he thought it was because they knew it was the right thing to do, eliciting a raised eyebrow from the questioner.

But it was not only Republicans who questioned the principles, which have been criticized for putting things like yogurt, cereal, bottled water and 2% milk in the unacceptable category.

For example, Rep. John Dingell (D-Mich.), whose state is one of the nation's cereal capitals, said that there were studies that showed that kids who ate breakfast cereals were actually less likely to be obese than those who did not. He asked whether the guidelines shouldn't have instead encouraged kids to eat more cereal, not less.

Echoing that concern about businesses in his district was Rep. Pete Olson (R-Tex.), who talked about the over 600 jobs at Frito-Lay in his district that could be at risk.

There were also a number of Dems who stood up for the guidelines, pointing to the healthcare costs of childhood obesity ($3 billion per year), and the prospect of a generation that would live sicker, shorter lives than their parents.

Rep. Henry Waxman (D-Calif.) said the outcry over voluntary recommendations was "crazy." He said the hearing was not about big government replacing parents but about a way for industry to do something on a voluntary basis to help fight the obesity epidemic affecting a third of children who are either overweight or clinically obese. He said it was important to educate the public about not having kids subjected to ads they don't know how to deal with.

Rep. Joe Barton (R-Tex.) said the problem was not food marketing to kids, but the fact that adults were not doing the right thing. He asked how many in the hearing room had a sit-down family dinner the night before and estimated only a quarter. He said he had been 160 pounds when he came to Congress and was now over 200. He said that was not because he didn't know what was good for him to eat, but because he stops at McDonald's or eats at a reception or, if he wants to eat healthy, at Subway. He said the hearing would yield a lot of sound bites, but that voluntary regs aren't going to solve the problem. "It's up to each of us to do what must be done."

He was right about the sound bites. Rep. Marsha Blackburn (R-Tenn.) defended giving her grandkids M&M's after they had eaten their dinner and drank their milk, and Commerce Subcommittee Chair Mary Bono Mack (R-Calif.) said something didn't smell right about the guidelines, then later pointed out that her mom made her eat liver whose smell hung in the house for a week.

A second panel featured several food marketing representatives some of whom agreed with Pitts and other Republicans that the guidelines should be rescinded and self-regulation be allowed to work without what they saw as "radical proposals" that were in effect a threat of government intervention. A lawmaker on the first panel had pointed out that Sen. Tom Harkin (R-Iowa) has introduced a bill (S. 174) that would legislate food marketing standards.

Dan Jaffe, EVP of the Association of National Advertisers, said there was more compulsion behind the guidelines than was being talked about in the hearing. He pointed to a White House recommendation that if food marketers didn't self-regulate, the FCC should step in and limit ads. He also pointed to the FCC's authority over TV station licenses.

John Eggerton

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.