Expect More Scrutiny of Food Marketing to Children

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The national epidemic of childhood obesity is gaining ground in the public's consciousness every day, and the efforts of health advocates to focus government attention on the subject are slowly gathering momentum.

Recent activity at the Federal Trade Commission, the Department of Health and Human Services and self-regulatory agencies such as the National Advertising Review Council are signs of a regulatory "perfect storm" that may affect direct marketers that currently are, or are considering, marketing food or weight-loss products to children.

Sensitivity to the issue is advised, and marketers should examine their campaigns - and products - directed to children to identify and deal with any regulatory issues or litigation risks that lurk.

In April, the FTC and HHS released a joint report on food marketing and childhood obesity as the product of a workshop on the topic held by the agencies in July 2005. The report's recommendations were wide-ranging and emphasized self-regulation, but specifically addressed the development of products.

For example, the agencies recommended that food companies develop minimum nutritional standards and other efforts to "improve the overall nutritional profile of foods marketed to children."

The report also discussed methods used to market to children, suggesting that the industry consider whether "paid product placement of foods in contexts other than television programming (e.g., movies, video games, Web sites) is appropriate" and whether industry guidelines established by the Children's Advertising Unit of the Council of Better Business Bureaus (CARU) should be modified to address advertising in media other than television.

In addition, as directed by the conference report for the agency's 2007 appropriations bill, the FTC prepared a report to Congress on the food industry's marketing activities and expenditures targeted to children.

To assist in preparing the report, the agency issued a Notice Requesting Information and Comment. Through the notice, the FTC requested data from marketers on topics including the types of foods and beverages marketed to children and adolescents, the types of media used for advertising directed toward children and, specifically, the extent of Internet marketing efforts directed toward children, including product placement in video games, known as "advergaming." Comments in response to the notice were due April 3.

Developments have occurred in enforcement as well. In April and May, the FTC announced two actions against marketers selling dietary supplements claimed to cause weight loss in children. One case involved a $3 million penalty. Though the allegations in those cases were based on deception and not standards that are unique to products or marketing intended for children, they provide reason for renewed focus on the industry.

Reading tea leaves can be risky, but it appears that the issues surrounding childhood obesity will remain in the spotlight for the near future. The direct marketing industry should monitor developments at the FTC and CARU as well as at the Food and Drug Administration, HHS and other agencies.

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