Introduction
The harms of marketing unhealthy food products to children are well documented,Reference Clark, Coll-Seck, Banerjee, Peterson, Dalglish and Ameratunga 1 including major concerns over adverse impacts on health equity due to targeted marketing to racial and ethnic minority populations.Reference Grier and Kumanyika 2 A 2020 review article found sixteen countries regulate unhealthy food marketing to children primarily on television during children’s programming and using a nutrient profile.Reference Taillie, Busey, Stoltze and Carpentier 3 To date, the U.S. has overwhelmingly relied on industry-derived standards and self-regulation, which have not kept pace with modern marketing practices.Reference Campbell 4 With an international focus on regulating food marketing to children, 5 and a U.S. awakening around the importance of racial equity and increased attention to nutrition security, there is a renewed interest in this topic.
This article briefly reviews legal barriers and opportunities to regulate food marketing to children in the United States, the limitations of current self-regulatory approaches, and the existing problematic marketing tactics that are amenable to regulation. This article also provides new thinking on food companies’ ability to conduct marketing research on children without the oversight required in other areas of privacy protection, most notably academic research. It concludes with recommendations for the federal government and state attorneys general to address the issues identified, as well as additional research necessary to support such regulatory efforts.
Legal Barriers and Opportunities to U.S. Government Regulation of Food Marketing
The First Amendment to the U.S. Constitution protects against government abridgment of speech. The original rationale for this protection was to protect public discourse and free debate necessary to participate in a democratic society. In the 1970s, the U.S. Supreme Court held that commercial speech should be similarly protected. The Court defined commercial speech as “speech that proposes a commercial transaction” 6 and found it to include advertising, 7 labeling, 8 and trade names. 9 In 1980, the Supreme Court created the Central Hudson test for courts to use to determine whether government restrictions on truthful, non-misleading commercial speech are constitutionally viable. 10 Although this test was described as an intermediate-level test, in practice it has proven difficult to pass and subsequent cases throw the viability of the test into question. 11 One case in particular sheds light on the difficulty of restricting commercial speech to children. In 2001, the Supreme Court struck down under Central Hudson, Massachusetts Attorney General restrictions aimed at protecting children from tobacco advertising. 12 A key finding in that case was that the government could not restrict speech viewed by children — even for a product not legally purchasable by them — if it interfered with companies’ ability to communicate with adults and adults’ ability to receive the information. 13 Thus, restricting speech for food products, which are legally purchasable by not only adults but children themselves, is even more challenging because children likewise may be deemed to have a legally protected interest in receiving such information (and companies a legally protected right to impart it to them). In addition, subsequent Supreme Court cases question the extent the government can restrict non-misleading commercial communications at all, including a broader array of speech by corporations (e.g., political speech, 14 prescriber prescription data for marketing 15 ) and speech directed at children (e.g., violent video games 16 ).
This article briefly reviews legal barriers and opportunities to regulate food marketing to children in the United States, the limitations of current self-regulatory approaches, and the existing problematic marketing tactics that are amenable to regulation. This article also provides new thinking on food companies’ ability to conduct marketing research on children without the oversight required in other areas of privacy protection, most notably academic research. It concludes with recommendations for the federal government and state attorneys general to address the issues identified, as well as additional research necessary to support such regulatory efforts.
On the other hand, the Central Hudson test posits that “misleading” commercial communications are not similarly protected under the First Amendment. Thus, the First Amendment’s protection for commercial speech has been deemed to not include protection for false, deceptive, or empirically misleading commercial communications.Reference Pomeranz17 The Federal Trade Commission (FTC) and state attorneys general have the authority to protect consumers from false, deceptive, and unfair commercial communications. The FTC defined deception as a representation, omission, or practice that is likely to mislead a reasonable consumer and that materiality affects their purchasing decisions.18 Importantly, when the speech is directed at children, reasonableness is evaluated from a child’s perspective regardless of who would ultimately purchase the products.19 Congress defined a practice as unfair if it leads to a substantial consumer injury that is not outweighed by any countervailing benefits to consumers or competition, and the injury is one that consumers themselves could not reasonably have avoided.20 See Table 1 for definitions.
Table 1 Definitions
* Congress has not codified this policy but the FTC uses these criteria in bringing complaints and courts review the FTC’s findings according to this test.
Although the FTC has authority to promulgate rules related to unfair commercial acts and practices, Congress removed this authority with respect to “children’s advertising” in 1980 and has not since reinstated it. 21 This congressional action was in response to the FTC’s proposed rulemaking called, Kid-Vid. Out of concern over dental caries, the FTC attempted to regulate television commercials during children’s programming for sugary foods and drinks.Reference Pomeranz 22 Congress reacted by passing the FTC Improvement Act of 1980 which withdrew the authority of the FTC to regulate marketing directed at children that it considered unfair. 23 The FTC has not attempted to use its authority over deceptive acts and practices to establish similar rules, in part out of concern over similar backlash. In addition, the FTC’s rulemaking authority requires it to undergo extensive hearings, unlike other agencies that can issue rules pursuant to the Administrative Procedure Act.Reference Pomeranz 24 Nonetheless, the FTC continues to bring cases against companies for specific unfair and deceptive practices such as misleading ads for children’s cereal. 25 Further, the FTC has used its authority to gather information to require food, beverage, and fast food companies to produce data documenting the amount of food and beverages they advertised to youth; 26 the FTC released reports on the subject in 2008 and 2012. 27
State attorneys general work at the intersection of law and public policy and enforce state laws that also prohibit unfair and deceptive acts and practices and generally follow federal precedent.Reference Pomeranz and Brownell 28 Attorneys general have a broad range of consumer protection authority and some also have the authority to engage in rulemaking. 29 Like the FTC, state attorneys general have brought specific cases against unfair and deceptive advertisements and in these matters, they often work in concert across states. 30 Thus, within the confines of the First Amendment, the FTC and state attorneys general still have the authority to protect consumers, address unfair and deceptive acts and practices, and gather information.
Limitations of Current Industry Self-Regulatory Approaches
The U.S. largely relies on self-regulatory mechanisms for food marketing to children. In 2007, the Better Business Bureau created the Children’s Food and Advertising Initiative (CFBAI) as a self-regulatory program to address food marketing to children who are less than 12 years old. Under the original version, the initial ten companies (large multinational food manufacturers and chain restaurants) created their own marketing pledge with their own nutrition requirements that were quite weak. In 2009, Congress appointed an Interagency Working Group on Food Marketing to Children (consisting of members from the FTC, Centers for Disease Control and Prevention, Food and Drug Administration, and U.S. Department of Agriculture) and in 2011, the group released voluntary nutritional standards for food marketing to children. 31 The food industry refused to implement the stronger nutrition standards but in response, the CFBAI announced improved program requirements. Nonetheless, several exceptions embedded in the CFBAI program render it ineffective to address common marketing tactics directed at children.
According to its most recent program requirements, the current nineteen CFBAI companies agree to only market products that meet uniform (and stronger) CFBAI nutrition criteria to children less than 12 years old. 32 However, this only applies to media (television, radio, print, internet, mobile, and digital media including video games, YouTube, and influencer communications) where at least 35% of the audience are children less than 12. 33 As such, this does not capture the range of family programming or media directed at older children that are also watched by younger children. In addition, these voluntary commitments do not extend to marketing on food packaging, in the retail environment (in-store or online), at secondary or high schools, or at sporting or other events. 34
While some advocates have focused on strengthening the nutritional requirements for the CFBAI, the range of marketing practices directed at children often make such nutrition standards irrelevant. 35 For example, McDonald’s markets the experience of being at McDonalds — e.g., family time at the restaurant, Happy Meal toys, tie-ins with children’s movies and shows, etc. — so the food shown (e.g., apple slices versus French fries) is less relevant to the child-viewer than the restaurant brand itself. 36
Additionally, companies often advertise a subset of their products to children that meet CFBAI nutrition criteria, but the form of advertising itself markets the entire brand category, including many products that do not meet these criteria.Reference Ralston Aoki, Moore, Williams, Pasch and Collins 37 One example of this is for the brand Lunchables. In 2013, Kraft Foods advertised five varieties of Lunchables that met CFBAI nutrition standards, but offered 37 additional varieties in retail establishments that did not meet these standards. 38 Extensive marketing focused on fun, games, and celebrity endorsements of the overall brand — not the specific varieties meeting the standards. 39 As mentioned, CFBAI also does not apply within the retail environment where actual purchase decisions are made. Lunchables products that did not comply with the CFBAI nutrition standards had packaging featuring child-directed media, such as for children’s movies and characters. Ultimately, children and their caretakers have little way of knowing which products within the brand category were CFBAI-approved when making purchasing decisions, whether in-store or online.
Additional concerns relate to child-directed marketing techniques not covered by the CFBAI. For example, Coca-Cola states that it does not market to any children less than 12. However, the company utilizes characters that are especially appealing to young children, including cartoon polar bears and Santa Claus. These characters are used for family programming, watched heavily by young children but for which they comprise less than 35% of the audience. 40 Similarly, Coca-Cola’s ads in sponsorship of the World Cup and Pepsi billboards featuring Beyoncé in Times Square, New York City, are not covered by the CFBAI but are seen by millions of children.
Disparities in marketing targeting different racial and ethnic minorities are also not captured by the CFBAI. One report found that Coca-Cola disproportionately advertised their products to youth who watch Spanish-language TV and PepsiCo disproportionately advertised their products to youth who watch Black-targeted TV, as compared to television viewed by their white counterparts. 41 Moreover, even unhealthy food categories are more likely to be advertised to racial and ethnic minorities. For example, the same study found that although candy advertising made up 9.4% of all television food advertising, it contributed 13.3% and 18.3% of food-related spending on Spanish-language TV and Black-targeted TV, respectively. 42
Lastly, the age of the children covered by CFBAI is also noteworthy. CFBAI only applies to advertising for children less than age 12 years old, 43 which is not consistent with the Federal Communications Commission’s definition of children’s programming which includes 12-year-old children as well. 44 Conversely, the Interagency Working Group’s voluntary nutritional standards were recommended for foods marketed to children up through age 17. 45
In summary, the combination of real concerns over First Amendment barriers and the CFBAI’s well-promoted but limited self-regulatory program has allowed industry to deflect and avoid meaningful policy conversations around mandatory food marketing regulation in the United States.
Persistent Problematic Marketing Tactics Amenable to Regulation
Since KidVid, modern practices and techniques to market to children online have eclipsed the role of traditional television commercials for marketing to children. Recent research has documented major public health concerns with the marketing and promotion of unhealthy food on educational websites,Reference Emond, Fleming-Milici, McCarthy, Ribakove, Chester, Golin, Sargent, Gilbert-Diamond and Polacsek 46 social media apps,Reference Kent, Pauzé, Roy and de Billy 47 through online host-selling (i.e., the use of program characters to deliver commercial messages adjacent to children’s programming featuring that character 48 ), and through child influencers (“online celebrities with large social media fan bases who shape fans’ opinions by subtly or overtly endorsing products”Reference Alruwaily, Mangold, Greene, Arshonsky, Cassidy, Pomeranz and Bragg 49 ). Companies pay influencers to create content and endorse their products. A communications expert explained that influencers verify a brand’s “credibility” within their target demographic and “build trust” in a way that traditional advertising cannot. 50 These methods and venues are now even more concerning as work, school, entertainment, and socialization have increasingly moved online.
Government regulation has not been able to keep pace with modern practices. For example, the Children’s Online Privacy Protection Act (COPPA) was enacted to protect young children from disclosing personally identifiable information without their parents’ consent. However, this statute only applies when the operator has actual knowledge that the user is less than 13 years old and does not require operators to ask for age verification. 51 Moreover, once parental consent is obtained (e.g., through an email with a hyperlink to the operator’s online notice of its information practices, known as its privacy policy), marketers can then freely use the information to double-down on marketing efforts specifically designed to target young children. 52 Further, COPPA does not apply to the content of the material so operators can still “show” children anything they want on their websites. 53
The spirit of the Common Rule is to protect human subjects and especially vulnerable populations like children, from human subject research and it applies to researchers receiving federal funds. Food industry entities would meet these criteria for marketing research on children, but for the fact that the IRS has not signed on to the Common Rule. Such an exception has pervasive and international implications, as it allows food companies to conduct questionable research on children which can be used to successfully target racial and ethnic minority youth through food marketing and to encourage all children in the United States and globally to desire, consume, and pester their parents for unhealthy foods and beverages.
As a second example, the Federal Communications Commission prohibits host-selling on television because it takes “unfair advantage of the trust which children place in program characters,” 54 but no similar prohibitions have been created for online host-selling. As a result, YouTube and YouTube Kids have become major platforms for host-selling. 55 Similarly, there are no specific regulations to protect children from “native advertising” (advertising that bears a similarity to the entertainment content surrounding it online). 56 The FTC does require that influencers and other people paid to advertise a product online must include some type of disclosure (e.g., #ad) in their messaging, but this is easily overlooked or not capable of being understood by children.
In various aspects of life and law, parents are expected to act as gatekeepers, 57 such as in the case of preserving a child’s personally identifiable information under COPPA. Opponents of government regulation of marketing to children argue that government action would undermine parental control. 58 Yet, parental oversight and control has become less feasible in the face of new covert online marketing practices, such as host-selling, native advertising, and the use of influencers and other celebrities. Moreover, exemptions to COPPA and the very existence of a self-regulatory food marketing mechanism make it clear that parents have little ability to act as the sole deciding factor for what types of food their children are exposed.
Modern marketing practices are intended to, and successfully, blur the distinction between marketing and entertainment. Decades of research on traditional advertising showed that even when the separation between content and advertising would be clear to adults (e.g., “we will be back after this commercial break”), young children still had difficulty distinguishing advertisements. 59 For television advertising, children cannot consistently discriminate between the program and commercial content up to age 4 or 5; and do not effectively comprehend the persuasive intent of marketing and tend to accept commercial claims as truthful and factual statements up to the age of 8. 60
Modern uses of branded advertising, influencer promotions, online host-selling, and native advertising take advantage of children’s limited stages of cognitive development and leverage their trust and lack of skepticism. Research indicates that even adults have difficulty identifying sponsored content online. 61 There are also distinct concerns for adolescents, who are not covered by any protections, because adolescents are early adopters of digital media and vulnerable to marketers’ influence due to neurobiology susceptibility.Reference Montgomery and Chester 62
Thus, modern forms of marketing circumvent children’s (and teens and adults’) ability to actively process advertising information or engage in skeptical reasoning because they cannot always identify marketing as such. These are arguably unfair and deceptive methods to market unhealthy food and beverage to youth.
Food Companies’ Marketing Research on Children
In other areas outside of marketing, it is recognized that youth lack the capacity to make informed decisions. One such area is academic research that involves children. First published in 1991 and revised in 2018, the Common Rule is the federal policy for the protection of human subjects in research; twenty federal agencies have signed onto the Common Rule. It requires that all research on human subjects conducted or supported by these agencies must receive Institutional Review Board (IRB) approval prior to conducting research (see Table 1 for the definition of research). This approval includes the requirement that “adequate provisions are made for soliciting [both] the assent of the children and the permission of their parents or guardians.” 63 The basis of this requirement is to ensure that basic ethical principles and safety considerations are followed.
The Common Rule defines children as “persons who have not attained the legal age for consent to treatments or procedures involved in the research, under the applicable law of the jurisdiction in which the research will be conducted.” 64 While state law is not generally clear on this question,Reference Field and Behrman 65 the Department of Health and Human Services (HHS) has determined that in this context: “Generally the law considers any person under 18 years old to be a child.” 66
However, strikingly, there are no similar requirements for or prohibitions on commercial research on children. A Report of the American Psychological Association Task Force on Advertising and Children concluded:
Along with the growth in marketing efforts directed toward youth has come an upsurge in the use of psychological knowledge and research to more effectively market products to young children. There is an increasing number of companies headed by people trained as child psychologists that specialize in market research on children… [Advertising industry] publications draw upon principles in developmental psychology and apply them to the goal of more effectively persuading children to want advertised products and to influence their parents to purchase these products. … For example, one report described a study of children that was designed to determine which message strategy would most effectively induce children to nag their parents to buy the advertised product (‘The old nagging game’). 67
The disparity in rules for academic institutions seeking to engage in marketing research, who must obtain children’s assent and parental consent, 68 versus no requirements for for-profit entities engaging in the same activity, is striking.
Beyond ethical concerns, there are legal nuances that provide some, albeit limited, basis that the current Common Rule could be applied to food industry marketing research on children. The code of federal regulations for the protection of human research subjects states that “Federal funds administered by a Federal department or agency may not be expended for research involving human subjects unless the requirements of this policy have been satisfied.” 69 Private food companies do in fact receive federal funding through tax expenditures administered by a federal agency. Tax expenditures are subsidies delivered through the tax code that provide exceptions to the normal tax structure, including exemptions, exclusions, deductions, credits, and preferential tax rates. 70 Advertising and marketing is a deductible business expense under the federal Income Tax Code, which is administered by the Internal Revenue Service. Although the IRS did not sign on to the Common Rule, 71 it is a federal agency that administers federal funds that are expended for marketing research involving human subjects. One calculation in 2014 found that the U.S. government provided the food and beverage industry a tax subsidy of nearly $80 million a year for youth-directed television advertising alone.Reference Sonneville, Long, Ward, Resch, Wang, Pomeranz, Moodie, Carter, Sacks, Swinburn and Gortmaker 72 (This is likely a very conservative estimate. 73 )
The spirit of the Common Rule is to protect human subjects and especially vulnerable populations like children, from human subject research and it applies to researchers receiving federal funds. 74 Food industry entities would meet these criteria for marketing research on children, but for the fact that the IRS has not signed on to the Common Rule. Such an exception has pervasive and international implications, as it allows food companies to conduct questionable research on children which can be used to successfully target racial and ethnic minority youth through food marketing and to encourage all children in the United States and globally to desire, consume, and pester their parents for unhealthy foods and beverages.
Recommendations
Despite years of Supreme Court cases aimed at providing increased protection to corporate speech and commercial communications, all Justices have thus far agreed that false, deceptive, and empirically-proven misleading speech about commercial products remains unprotected. 75 A legally viable method for the FTC and state attorneys general to address unfair and deceptive acts and practices is to base any food marketing regulation on evidence of deception. 76 For example, for children less than age 8 who cannot understand that commercial communications are intended to persuade them, by definition such food marketing should be considered a deceptive and misleading way to propose a commercial transaction to them and should not be considered protected speech under the First Amendment. 77
Another outstanding question for the FTC and state attorneys general is to what extent gaps in the CFBAI should be considered a false, unfair, or deceptive act or practice. For example, Coca-Cola’s repeated public statement that it does not market to children under 12, should be questioned in light of Coca-Cola’s wide-spread use of Santa Claus, the Coca-Cola bears, and other child-targeted marketing. 78 Santa Claus has such an obvious appeal to children that the beer industry’s self-regulatory mechanism, the Beer Institute, specifically states that “Beer advertising and marketing materials should not depict Santa Claus.” 79 Coca-Cola’s statements about their commitments to restricting marketing to children are intended to increase good will, create brand loyalty, and ultimately sell more of their products, and thus are commercial speech. 80 The FTC and state attorneys general should evaluate whether these types of representations in furtherance of the CFBAI qualify as a false, deceptive, or unfair act or practice on its own.
Significantly, food companies’ ability to conduct marketing research on children without oversight enables food marketers to more precisely and successfully influence children to desire, purchase, and consume unhealthy food and beverage products. It is not logical or ethical that human subject protections are necessary for academic and other researchers but not for researchers at for-profit corporate entities. Moreover, there are health disparities associated with targeted marketing to Black and Latino children indicating that companies’ marketing research is conducted to specifically and more precisely target ethnic and racial minorities. This provides additional and elevated cause for concern and legal questions about such practices. The federal government and state attorneys general should investigate companies’ marketing research on children in light of the spirit and purpose of the Common Rule and civil rights protections. Moreover, the FTC and state attorneys general should determine whether such practices, especially as it relates to targeted marketing, constitute unfair or deceptive acts or practices.
Congress should also repeal the FTC Improvement Act of 1980 that removed the FTC’s authority to address child marketing as unfair. In order to do enable the FTC to engage in future rulemaking on marketing directed at children more efficiently and effectively, Congress should also permit the FTC to use Administrative Procedure Act rulemaking (like most other federal agencies), rather than their current authority which takes years to complete. 81 In the meantime, the FTC should use its authority to gather information to issue a new report on food marketing to children focusing on the range of online platform-types and marketing tactics.
Congressional bills have been introduced to address some of the issues identified above and wider support is needed for their passage. For example, the Kids Act would make it unlawful for online platforms directed to children under the age of 16 (identified through content, the use of characters, child-celebrities, and empirical evidence on the intended audience, among other means) to use host-selling, branded content, native advertising, program length advertisements, or product placement for marketing to children.82
The issues identified herein also highlight important areas for future research. These include research: (1) on children’s abilities at different ages to discern between program and commercial content online, understand the persuasive intent of online marketing, and accept commercial claims as truthful and accurate factual statements when implemented through modern marketing approaches including branded advertising, influencer promotions, online host-selling, and native advertising, among others; (2) on the methods and impact of marketing occurring in the in-person and online retail space; and (3) to generate empirical evidence on the age of users for online platforms.
Conclusions
Food marketing to children has been associated with unhealthy food consumption. The First Amendment’s barrier to restricting truthful commercial communications is not a barrier to addressing false, deceptive, or unfair practices directed at children especially through new online tactics. Moreover, marketing research conducted on children by for-profit companies should be investigated. The conversation over protecting children from food marketers must move from nutritional standards and limited, voluntary, self-regulation to effective policies that address modern marketing practices targeting children and marketing research, especially on racial and ethnic minorities, currently functioning without oversight.
Note
This research was funded by NIH grant project number: 2R01HL115189-06A1; title: Cost-Effectiveness of Health System and State-Level Strategies to Improve Diet and Reduce Cardiometabolic Diseases. Additionally, Dr. Mozaffarian reports research funding from the Gates Foundation, The Rockefeller Foundation, Vail Innovative Global Research, and the Kaiser Permanente Fund at East Bay Community Foundation; personal fees from Acasti Pharma, Barilla, Danone, and Motif FoodWorks; scientific advisory board, Beren Therapeutics, Brightseed, Calibrate, Discern Dx, Elysium Health, Filtricine, HumanCo, Instacart, January Inc., Perfect Day, Tiny Organics, and (ended) Day Two and Season Health; stock ownership in Calibrate and HumanCo; and chapter royalties from UpToDate.
