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Demystifying the Laws on Marketing to Children (Liveblog from the Consuming Kids Summit )

This is the final session at Day 1 of the summit. The title is “Demystifying the Laws on Marketing to Children” and features the three lawyers listed below. I’m  expanding this document and updating it every few minutes during the panel.

Angela Campbell of the Institute for Public Representation, Michele Simon, author of Appetite for Profit and president of Eat Drink Politics, and Cara Wilking, Public Health Advocacy Institute.

Michele Simon:

There is no first amendment right to deceptive advertising. Each state has its own deception-related laws.

Food industry has voluntary, self-regulatory system; it’s not exactly working.

Related to self-regulation is the idea that the food industry has covered its culpability with “healthy food” marketing. Plays right into industry’s game. McDonald’s has it covered by shrinking size of french fries and adding milk to the “Happy Meal.”

Next speaker, Cara Wilking:

Deceptive advertising is deceptive, no matter the product. Tactics being used are important, from a legal point of view.

Example of food marketing 1)products intended to be eaten by children to adults (target is parents; thus health claims like immunity, keeps kid focused, etc.); typically there is a bogus claim without substantiation. The companies tend to crumble as soon as this is revealed. But regulators hold up these cases as examples of how they’re protecting children. We must keep pressure on; deceptive claims designed to appeal to adults don’t cover enough ground.

Then 2) children who are going to ask their parents to ask for thing. A toy premium means the market is 8 and under for the ad. These tactics are problematic but difficult under current legal structure to fight.

Then there is 3) foods that appear to be targeted to older kids and families; sweepstakes, etc. are an example. They target is getting younger and younger, e.g., ages 6–12 for sweepstakes. Typically there is parental consent requested. But sweepstakes laws are required to protect state lotteries. An illegal lottery is what they must avoid (that’s why, “no purchase necessary” is laid out).

Kids under 8 cannot, however, understand “no purchase necessary,” that “I don’t need to have a physical cereal box to win this prize.” So this renders such appeals an illegal lottery.

State laws do not have age limits on eligibility to win prizes.

Then there is “cause marketing.” She holds up a cookie box, where a hunger  cause is being marketed on the box. Having clear rules of the road around cause marketing is important. Organizations should be tuned into this. There must be a way to call these practices out that doesn’t pit people against each other, i.e. anti-hunger organizations. Or money for your school is offered by some other companies. But the companies are getting much more than they’re giving, when they’re doing cause marketing.

Third speaker, Angela Campbell, discusses federal level law around privacy:

The IPR represents nonprofit organizations including CCFC before the FTC and FCC to prevent unfair and deceptive marketing. In 2010 FTC took public comment on the privacy legislation for children. The rules were adopted this past December and they won’t take effect until July. The new law makes photos, videos, and audiofiles private information. It also prevents location tracking via cellphones.

The law takes away marketer’s access to Persistent identifiers, numbers associated with particular computers or devices or can be placed on your browser (e.g., cookies), which are used to track people from site to site to see what they’re looking at; what features are used, what they read, etc. , (without parental consent in advance of collecting the information.)

Michele Simon again:

  • When it comes to litigation we’re challenged in private court system because of a legal concept called standing. Mother may sue Kellogg for making a false claim as a consumer who purchased a product, whereas a child may simply be bombarded by advertising.
  • CSPI brought lawsuit in California in class action lawsuit; it was thrown out because of standing. The deception is to the child, but the standing is only applicable to the parent.
  • Kix cereal, aimed at small children, has the word natural on it; there’s controversy around GMOs. Natural does not equal GMOs, of course. That’s deceptive labeling. Parents are being duped with these products.
  • Role of attorneys general: state AG office are extremely important and effective; they did play a role against the #tobacco industry.

Angela Campbell again:

One of the things that the self-regulatory organizations (a band of about 14) did to avert more regulation was to change standards and have everyone pledge to the same nutrition guidelines. That hasn’t taken effect but will in (?) 2015; those standards aren’t as strong as the voluntary guidelines that the government had put out for comment. Foods are reformulated to meet the guidelines. They’re “better for you” products not actually good for you!

It has to be demonstrated that the industry can’t police itself to go forward before government will step in.

Michelle notes says Campbell wrote an article a few years ago is that what is needed is at  least the threat of regulation. We don’t even have that.

The industry’s not afraid of being actually regulated, says Simon.

Campbell says what they’re trying to regulate here isn’t deceptive speech; it’s claims about food that can’t actually be proved or disproved. The industry has a first amendment claim whether they can say something like “It’s FUN to eat x!”

Liveblog Update: It’s 4:36 p.m. and this panel is almost over. I’m switching over to Twitter for coverage…Oh goody, the topic now is “Pester Power!”

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