FTC Defends Proposed Child-Food Marketing Rules Critics Say Could Kill 'Tony the Tiger'

By Fred Lucas | July 1, 2011 | 3:44 PM EDT

(CNSNews.com) – The Federal Trade Commission is defending its proposals to change food and beverage marketing to children ages 2-17, which industry and legal critics say would lead to the end of iconic commercial characters such Tony the Tiger and Toucan Sam and create free speech issues.

The proposed “voluntary” guidelines for marketing food resulted from the Interagency Working Group made up of representatives of the FTC, the Food and Drug Administration, the Centers for Disease Control and the U.S. Department of Agriculture. The report was opened for comment in April, and public comment closes on July 14.

The report is merely a report to Congress and is not an enforceable regulation, said David Vladeck, director of the bureau of consumer protection for the FTC, in a FTC blog post Friday.

“But we’ve heard amped up stories claiming to know what this project is ‘really’ about and suggesting that the agencies are trying to ban almost all food marketing to kids and punish food companies that don’t adhere strictly to the principles,” Vladeck said. “Frankly, these folks might want to switch to decaf.”

Vladeck stressed that the guidelines would not violate the First Amendment, as critics charged.

“[A] report to Congress containing recommended nutrition principles can’t violate the Constitution,” Vladeck said. “A report is not a law, a regulation, or an order, and it can’t be enforced. While we hope companies voluntarily choose to adopt the principles (when finalized), there’s no legal consequence if they don’t. So there’s no effect on their free speech rights.”

He further stressed, “It’s voluntary. Companies can continue to market and sell the same products they do now.”

However, when the government issues “voluntary” industry guidelines, the industry considers it the same as a mandate, Dan Jaffe, executive vice president of the Association of National Advertisers, told CNSNews.com.

That’s because, he said, companies that don’t voluntarily follow the guidelines could run afoul of FTC regulations on unfair advertising or Federal Communications Commission regulations requiring broadcasting stations to operate in the public interest.

The interagency report is intended to help the food industry determine which items are “appropriate and desirable to market to children to encourage a healthful diet.” The group’s report says that by the year 2016, “all food products within the categories most heavily marketed directly to children should meet two basic nutrition principles. Such foods should be formulated to: (A) make a meaningful contribution to a healthful diet; and (B) minimize the content of nutrients that could have a negative impact on health and weight.”

Vladeck said the government is not trying to ban Toucan Sam. However, he said the interagency group would hope to see sugary children’s cereals change their formula.

“Nobody’s saying Toucan Sam has to fly the coop,” Vladeck wrote. “Ideally, during the next five years it would be great to see the cereal companies voluntarily tweak their formulations to raise the whole grain content and lower the added sugars for cereals marketed to children. That’s not just a wish.

“In the past three years, cereal companies have made impressive strides toward improving the nutritional profile of their kids’ brands and many already are close to meeting the nutritional goals the proposal has suggested for 2016,” Vladeck added.

These guidelines are no way to deal with childhood obesity, said Martin H. Redish, a professor at the Northwestern University School of Law.

“In attacking this problem, however, it is vitally important not to settle for simplistic ‘quick fixes’ — especially when they seriously threaten important constitutional rights,” Redish wrote in a June 8 white paper.

“The so-called ‘voluntary’ regulations prohibiting the advertising of certain foods (recently issued, with a request for comments, by the congressionally established and directed Interagency Working Group on Food Marketed to Children) will do nothing to remedy the problem of childhood obesity,” Redish wrote.

Even the White House Task Force on Childhood Obesity said in its report to the president “efforts must carefully consider freedom of speech issues.” Further, Redish pointed out that the U.S. Supreme Court has protected commercial speech for the last 15 years.

“Equally important, however, is the fact that those regulations unambiguously contravene the First Amendment’s protection of commercial speech as currently established by clear Supreme Court doctrine,” Redish further wrote. “Ineffective and unconstitutional remedies are hardly the appropriate responses to one of the most pressing public health concerns currently facing the nation.”