Food, Federalism, and Foie Gras

Food, Federalism, and the Curious Case of Foie Gras

Thursday, February 23rd

12:00 to 1:00 p.m.

WCC 1010 Classroom

Come hear practicing law and policy experts, including a New York poultry farmer and an animal rights lawyer, discuss cutting-edge constitutional issues in Food Law as they relate to California’s attempt to ban foie gras — and how these same legal issues affect all the other food on our plates.

Lunch — and foie gras! — will be served.

 

 

Watch “Food Marketing to Children”

Dear Friends,
We had an overflow turnout for the 3rd Annual UCLA-Harvard Food Law conference, held this year in Los Angeles. The conference addressed the regulation of food marketing to children.  The conference flyer and agenda is attached to this email.  We are pleased to report that CSPAN showed up and taped two of our panels and the keynote address by Senator Tom Harkin.  CNN will air these parts of the conference on the time schedule, listed below.  If you’d like to purchase a DVD or mp3 audio track of any of these videos, you can do so by clicking “purchase a DVD or Download” next to “More information” underneath the videos.
 
The Science Panel featuring Lori Dorfman (BSMG), Jason Halford (University of Liverpool), Marlene Schwartz (Rudd Center, UConn) and Emilie Aguirre (Moderator, Resnick Program) is scheduled for:
Nov 23, 2016 | 9:16pm EST | C-SPAN 2
Nov 25, 2016 | 2:39am EST | C-SPAN 1
Nov 25, 2016 | 2:24pm EST | C-SPAN 1
 
The video can be accessed when the time comes and will remain available on the C-SPAN video library: https://www.c-span.org/video/?417139-2/discussion-focuses-science-behind-food-marketing-children
 
The Law Panel featuring law Profs. Jacob Gersen (Harvard), Steve Sugarman (Berkeley), Eugene Volokh (UCLA), and Jennifer Pomeranz (Moderator, NYU) has already aired and is scheduled again for:
Nov 21, 2016 | 11:39am EST | C-SPAN 1
Nov 23, 2016 | 4:04am EST | C-SPAN 2
Nov 25, 2016 | 4:10pm EST | C-SPAN 1
 
 
Former Senator Harkin’s keynote is scheduled for:
Nov 24, 2016 | 12:03pm EST | C-SPAN 1
Nov 25, 2016 | 10:22pm EST | C-SPAN 1
 
Best,
Michael Roberts and Jacob Gerson
Michael T. Roberts
Executive Director | Resnick Program for Food Law and Policy
UCLA School of Law | 3237B 385 Charles E. Young Drive East
Office: (310) 825-3345 | Cell: (310) 619-7751 | roberts@law.ucla.edu
Jacob E. Gersen
Director, the Food Law Lab
Harvard Law School
1563 Mass. Ave.
Cambridge, MA 02138
foodlawlab.org

The Legal Case for Limitations on Food Marketing Targeted at Children

This is the third of a three part series by former food law lab student Nadia Arid.  More updates from the HLS-UCLA Conference on Food Marketing to Kids tomorrow. 

As mentioned in Parts I and II of this series, technological and informational developments have occurred in recent decades that have made regulations on marketing to children significantly more feasible and more appealing. Not only has the food and beverage industry created standards for what can be considered nutritional and lower calorie snacks, but the recent hike in obesity and public health issues in the United States has increased public support of limits on the advertising of unhealthy foods to children, and emerging research has begun drawing clearer connections between marketing strategies and the consumption of unhealthy foods. The political climate seems to be ideal for a movement to limit these marketing tactics. Yet, the FTC has still failed to act. One explanation may be the lingering legal considerations that the FTC must face in promulgating rules that would regulate marketing tactics by the food and beverage industry. This last part of the series will explain why common legal challenges to restrictions on food marketing do not apply in the case of marketing unhealthy foods specifically to children.

Justifying Regulation Under a “Deceptive Practices” Framework

In response to the FTC’s attempts to regulate marketing to children in the late 1970s (described in Part II of this series), Congress passed the FTC Improvements Act of 1980, which states that the FTC “shall not have any authority to promulgate any rule in the children’s advertising . . . on the basis of a determination by the Commission that such advertising constitutes an unfair act or practice.” While the FTC has treated this response by Congress as a death knoll for any attempts to regulate children’s advertising, the Act only limited one piece of the FTC’s two-pronged approach to rulemaking, as authorized under Section 18 of the FTC Act. Regulations on advertising to children may be off limits to the FTC under an “unfair practices” approach, but they are still fair game under the FTC’s authority to propose rulemaking to prohibit deceptive practices. The FTC Policy Statement on Deception sets forth the FTC’s criteria for determining that a deceptive practice has occurred. The determination is made based on three key elements: (1) “there must be a representation, omission or practice that is likely to mislead a consumer;” (2) that issue is analyzed from the perspective of a consumer acting reasonably in the circumstances; and (3) “the representation, omission or practice must be material.” A rule by the FTC restricting unhealthy food advertisements targeted at children would meet all of the requirements necessary under the FTC’s deceptive practices authority.

First, marketing of unhealthy foods is likely to mislead children. There is no requirement that the action is in fact misleading, but rather that it is likely to mislead a consumer, which means that even advertising that is not explicitly untrue can be deemed deceptive. Advertising strategies employed by the food and beverage industry have become increasingly more sophisticated in terms of avoiding blatantly untrue statements, but under the deceptive practices prong, the FTC can still make a case for limiting advertising aimed at children if the advertising is likely to mislead through unconscious associations and subtle forms of priming or psychological manipulation. Public health and psychological research demonstrates that children lack “the rational capacity to resist” the influence of “advertising for energy-dense, nutrient-poor food.”

Second, rulemaking on the issue of advertising directed at children will be analyzed from the perspective of the children affected by the advertising, making it easier to support this type of regulation. FTC regulations against deceptive practices are analyzed from the perspective of a reasonable consumer in those circumstances, and as such, the FTC will determine whether a marketing strategy is misleading or deceptive based on the “sophistication” of the audience. In the Policy Statement on Deception, the FTC stated the following: “When representations or sales practices are targeted to a specific audience, such as children, the elderly, or the terminally ill, the Commission determines the effect of the practice on a reasonable member of that group.” For marketing targeted to children, the FTC would analyze the practice from the perspective of children, taking into account their cognitive ability, brain development, and social and emotional responses to visual stimuli. In fact, in a 1964 case, the FTC concluded that “deceptive advertising claims beamed at children tend to exploit unfairly a consumer group unqualified by age or experience to anticipate or appreciate the possibility that representations may be exaggerated or untrue.” Even more research exists now than it did in the 1960s to support that claim.

Third, regulations on food marketing to children will pass the materiality test as articulated by the FTC. A “material misrepresentation or act of deception is “one which is likely to affect a consumer’s choice of or conduct regarding a product.” The FTC has further clarified that a finding of materiality is a “finding that injury is likely to exist because of the representation, omission, sales practice, or marketing technique” and that “[i]njury exists if consumers would have chosen differently but for the deception.” Public health and psychological research demonstrates that children lack “the rational capacity to resist” the influence of “advertising for energy-dense, nutrient-poor food.” This influence on children translates into material choices because children and teens will either use their own money to purchase advertised products or they will convince their parents to purchase the products (known as the “pester power” effect)—these mechanisms are described at more detail in Part I of this series. By relying on this research and other studies that have recently been published on this issue, the FTC can build a solid case to demonstrate that materiality and injury exist in the case of marketing of unhealthy food aimed specifically at children.

Withstanding Judicial Review

In addition to being justified within the FTC’s own mandate and authority, a regulation by the FTC on the issue of marketing to children would have to be able to survive under judicial review. As described by the Third Circuit, the standard of judicial review established by Congress for FTC rulemaking is relatively deferential:

A court may set aside the FTC conclusion if it is not supported by substantial evidence in the rulemaking record taken as a whole, or if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. The substantial evidence standard is applied only to the FTC’s factual determinations, while the arbitrary and capricious standard is applied to all other determinations. The arbitrary and capricious standard is very deferential … [and] the court must determine whether the decision was based on consideration of relevant factors and whether there has been a clear error of judgment.

 

While this may not have been the case back in the 1970s when the FTC last visited this issue, substantial evidence now exists connecting food advertisements to the consumptions habits of children and to the recent childhood obesity epidemic in the US. Because of the deference granted to agencies, characterizing this kind of regulation as arbitrary and capricious would be significantly more difficult now given the recent developments in research dedicated to this health issue. Furthermore, regulations promulgated under deceptive prong avoid causation problems that are typically associated with the unfairness prong because a deceptive practice inquiry focuses on the deceptive act itself rather than on the injury to the consumers. While it may be difficult to connect specific health issues directly to consumer choices, the evidence is much clearer and more convincing on the issue of the psychological and emotional effects of marketing tactics aimed at children.

Avoiding First Amendment Commercial Speech Issues

A common legal argument against restrictions on marketing or advertising is that these practices are forms of “commercial speech” protected by the First Amendment. The Supreme Court has stated that “public and private benefits from commercial speech derive from confidence in its accuracy and reliability.” Accordingly, the type of rulemaking proposed here would not fall under a First Amendment analysis—statements that are false, deceptive, or misleading are not accurate or reliable and are thus not protected under the First Amendment. In compliance with the First Amendment, the government has the power to regulate three types of deceptive material: actually misleading, inherently misleading, and potentially misleading speech—the first two can be banned outright while the third type of speech can only be limited by requiring parties to “remedy the misleading nature of the speech.”

In the case of marketing to children, however, scientific research shows that children are unable to “recognize the persuasive intent of ads and tend to accept them as accurate and unbiased,” as described in detail in Part I of this series. Informational remedies, such as qualifying disclosures, written disclosures, and fine print, would be ineffective in overriding misleading images or information presented to children. In fact, it can also be argued that the speech, because it is specifically targeted at children who are unable to distinguish between puffery and fact, is inherently misleading based on research on cognitive functions of children. Thus, the speech can either be considered inherently misleading or potentially misleading without a proper remedy short of a ban. Either way, the FTC would be justified in proposing regulations that limit advertisements of unhealthy foods targeted to children without running afoul the First Amendment.

Conclusion

The time has come for the Federal Trade Commission (FTC) to revisit the idea of regulating marketing strategies by the food and beverage industry to release the stronghold that the industry currently has on the purchasing and consumption behaviors of children in the United States. Part I of this series described the pernicious effects of food marketing on children to demonstrate that some level of intervention has become necessary—in recent years, the research has become increasingly more determinative of the fact that advertisements targeted at children have a negative effect on the health of children and have contributed to the nation’s obesity epidemic. Part II then discussed the complicated relationship that the FTC has had with child-centered marketing to suggest that the agency’s reluctance to get involved in this arena may be more reactionary and emotionally charged than policy-based. The analysis in Part II also explained how Congress could be uniquely positioned to encourage the FTC to take a chance on this issue once again. Now in this third and final installment, the issue of legality is discussed—aside from the FTC’s institutional hesitation in getting involved in the issue of marketing to children, common arguments against that form of intervention have mostly been legal in nature. Based on an analysis of the FTC’s mandate, the standard of judicial review applied to the agency’s actions, and other constitutional issues that may arise, it has become clear that the law can no longer be used as an excuse to not act to limit the deceptive practices of the food and beverage industry.

With these considerations in mind, Congress should step in to encourage the FTC to intervene against the food and beverage industry in order to promote the health and free choice of children currently subjected to advertising for unhealthy foods. The case for restrictions is legally sound and backed by strong evidence—there is only one question left now for the FTC and Congress: what are you waiting for?

FTC Regulations on Food Marketing to Children: A Complicated and Tense History

Part II of a series of posts by Nadia Arid, a  former Harvard Law School student in the Food Law Lab:

With technology increasing children’s exposure to advertisements and companies finding increasingly innovative ways to target this population, the health effects of food marketing on children will continue to compound as time passes. Part I of this series discussed the emerging data demonstrating that food marketing has negative health effects on children and has been a primarily driver of the childhood obesity epidemic in US. This section will provide context for why the Federal Trade Commission, the relevant regulatory body, has steered clear of attempts to regulate food marketing to children in recent years, despite the growing evidence that regulation may be warranted. Continue reading

Advertising to Kids

In anticipation of our annual food law and policy conference next week at UCLA, here is the first in a three part series by Nadia Arid, a former food law lab student at HLS.  Part II tomorrow….

Building A Case for Regulations on Youth-Targeted Food Marketing: The Time Is Now

Nearly four decades have passed since the US government’s last attempt to intervene with and regulate food marketing targeted at children. Meanwhile a new age of food marketing has emerged in the last few years as a result of increasing access to technology. Children are no longer passive recipients to advertising and now interact with companies through online marketing and in-app advertisements. Licensing deals with popular children’s characters through media companies, like Disney, are used to reach increasingly younger audiences. Companies have begun infiltrating social networks and gaining access to personal data from young Internet users. Food and beverage companies rely on tracking mechanisms to understand youth preferences.

Establishing a Link: The Impact of Research on Building Awareness

The power, reach, and effects of food marketing on children have dramatically increased in recent years, and so have the concerns from parents and the attention that health specialists are paying to this growing phenomenon. Scientists are beginning to establish a link between food advertisements and food consumption and drawing connections between food marketing and the growing childhood obesity epidemic.

As recently as last month, research has been rolling in to support a potential decision to regulate food marketing aimed at children. A study in the American Journal of Clinical Nutrition, published in January 2016, found that unhealthy food advertising exposure over television and Internet significantly increased food consumption in children. The study concluded that “recommendations for enacting environmental strategies and policy options to reduce children’s exposure to food advertising are evidence-based and warranted.”

Back in 1978 when the US last regulated the food marketing to children, politicians may have had inclinations that the prevalence of junk food marketing might be somehow related to noticeable hike in obesity rates in the US, but now in 2016 the growing research accumulated on the subject is finally supporting those intuitions. Armed with this recent data, health advocates should encourage agency officials and political leaders to revisit the need for increased regulations on youth-targeted marketing tactics used by fast food, snack food, and soft drink companies.

The Troubling Health Effects of Food Marketing Aimed at Children

The need for action has become urgent. Childhood obesity is now a leading public health concern in the US, with rates more than doubling among children and quadrupling among adolescents in the past 30 years. Today, more than one third of youths (more than 23 million total) are overweight or obese. While exercise has become the focus of recent media and political campaigns to improve the health of the nation’s children, diet and eating habits play a significant role, and the effect of food marketing on children’s diet cannot be overlooked.

Food marketing has the ability to affect children’s eating habits in three ways: (1) by targeting parents in an effort to convince them to purchase certain products for their children, (2) by increasing the “pester power” of children (i.e. encouraging children to persuade their parents to purchase products for them), and (3) by encouraging children and teens to use their own money to purchase products. The latter two are particularly problematic as they specifically target the children and take advantage of their relatively vulnerable state. In fact, scientists have found parallels between the craving responses elicited by drugs and those elicited by food cues, including the mere exposure to the sight of certain food through visual advertisements. Worse yet, marketing aimed at children has long-reaching effects because food preferences and behaviors are typically developed during childhood and can be very difficult to override later in life.

Multiple studies have emerged in recently years drawing a connection between food marketing and obesity among children. In 2005, the Institute of Medicine released a study called Food Marketing to Children and Youth: Threat or Opportunity?, which performed an exhaustive review of the scientific evidence on food marketing and obesity. The researchers found that food and beverage marketing to children ages 12 and under had a heightened effect on their consumption of high calorie, low nutrient foods. According to the Center for Science in the Public Interest, three-quarters (73%) of the foods advertised on children’s TV shows intended for children are for fast foods and sweets. The effect of advertising is even stronger on younger children because children under the age of 8 are unable to “recognize the persuasive intent of ads and tend to accept them as accurate and unbiased.”

The Social Justice Implications of Food Marketing Tactics

Not only does food marketing lead to negative health effects, but it also implicates social justice and racial justice concerns. The food and beverage industry’s marketing tactics are not equally felt across the nation’s children: youth of color are disproportionately harmed. Black and Latino children are statistically more likely to be overexposed to food marketing and as a result have been found to consume higher levels of junk food and fast food. In his book Social Justice and the Urban Obesity Crisis, Melvin Delgado, Co-Director of the Center of Addictions Research and Services, explores the health, social, and economic consequences of obesity and the effect that marketing has on youth from minority backgrounds. A 2008 study cited in the book found that African Americans were more likely to be exposed to marketing for foods and drinks high in calories when compared to other racial groups. Not only are youth of color more exposed to junk food marketing than their white counterparts, but research has also shown that “minority youth are more interested in, and positive towards, media and marketing than non-Hispanic Whites” and that youth from minority populations “respond more favorably to ethnically targeted marketing than white youth.” A study of Latino children conducted in 2009 showed that children who were overweight were more able to recognize the logos of fast food restaurants when compared to other food logos.

And this unequal effect of food marketing tactics is not simply unintended or coincidental: large players in the food and beverage industry and digital marketers have prioritized strategies targeted at ethnic youth. A research group backed by companies, such as McDonald’s, Kraft, and PepsiCo, has identified Latinos as “the most important U.S. demographic growth driver in the food, beverage, and restaurant sectors.” Advertising experts are studying how to reach “multicultural markets” and counseling their food and beverage industry clients on how to take advantage of the fact that “African-American, Hispanic, and Asian consumers download more mobile ringtones, games and images than their white counterparts.” Furthermore, billboards and other outdoor advertisements for unhealthy foods around child-serving institutions have been positively associated with race and are predominantly found in poor and working class communities of color.

 

Let’s Start Calling for Intervention

It’s time to build a case for new regulations against food marketing to children. Almost two generations of individuals in the United States have grown up in a society without accountability, enforcement, and oversight over the tactics that the food and beverage industry uses to market their products to children. We’ve seen it done with tobacco through restrictions on cigarette advertising and promotion, and now we must begin to acknowledge that food marketing targeted at children has similarly strong links to public health concerns and that restricting junk food advertisements may be a necessary first step to loosen the hold that the food and beverage industry has on the nation’s youth.

Part II of this series will explore what regulatory challenges must be tackled to begin regulating food marketing to children and the power that the food and beverage industry wields over independent agencies like the Federal Trade Commission. Part III will analyze common legal arguments against the regulations, such as claims that the advertisements are commercial free speech, and discuss how these legal responses can be addressed. There are powerful actors at play here, but the battle is worth choosing—regulations could have a profound effect on the health of children in the US, particularly those already living in vulnerable and under-resourced communities.

 

What to Think of the New GMO Labeling Law?

In late July, President Obama signed a bill requiring some form of labeling of foods containing genetically engineered materials. The measure preempts state laws, like Vermont’s, that require different labels than those mandated by the federal measure. The law requires companies to disclose any genetically engineered materials, but does not require them to disclose that fact on the label or product itself. Rather, if companies choose, they can simply put a bar code or QR code that consumers could scan with a smartphone to retrieve the relevant information. Smaller companies would be allowed to include only a phone number that consumers could call to learn whether their food is genetically engineered. The call-me-later approach to food labeling is more than a bit unusual.  But might it actually be right?  Read more analysis from me and Steve Ansolabahere over at Forbes.

Food Law and Food Waste

The Harvard Food Law and Policy Clinic has been working hard to help solve the problem of food waste.  They write that about 40 percent of food produced in the United States is wasted each year. The Federal government estimates that each household of four wastes about 2 million calories each year.  Politicians, chefs, activists, and industry are working on the problem, but what is to be done?  Some thoughts on how law can hurt or help over at Time.com:

The Single Bad Reason We Waste Billions of Pounds of Food

 

 

 

Food Marketing to Children. Save the Date!

3rd Annual UCLA-Harvard Food Law and Policy Conference

Food Marketing to Children: The Current Reality and What Can Be Done 

*Featuring a Keynote Address by Senator Tom Harkin*

October 21, 2016

UCLA School of Law

The Resnick Program for Food Law and Policy at UCLA School of Law and The Food Law Lab at Harvard Law School invite you to the 3rd Annual UCLAHarvard Law School Food Law and Policy Conference, which this year will address the issue of food marketing to children.

Event Description

American youth are heavily exposed to food marketing – indeed, food and beverage companies spent nearly $1.8 billion dollars on youth oriented marketing in 2009, and most youth oriented marketing is for products with a poor nutritional profile. In recent years, while still utilizing traditional marketing channels of television, sponsorships, and celebrity promotion, youth oriented marketing has also evolved to include a vast array of digital and social mechanisms. This marketing is capable of influencing children’s diets and arguably shaping their food preferences for years to come.

Some argue that, given the extent and nature of unhealthy food and beverage marketing in the United States and the increasing prevalence of youth diabetes as well as high obesity rates, more – much more – should be done to limit child and adolescent exposure to promotion of unhealthy foods and beverages. In recent years industry self-regulation has been the primary approach for reducing youth exposure to the marketing of unhealthy foods and beverages, yet research has shown the unevenness of this approach to date. At the same time, any call for government action raises questions about both First Amendment and legislative limitations.

This one day long conference will convene an interdisciplinary group of experts from science, law, and policy to discuss these issues and consider the scale, impact of, and legal considerations with regard to food and beverage marketing to children in the United States.

We hope you save the date of October 21st to join us for this event.

To keep up‐to‐date on Resnick program information and events, please visit http://www.law.ucla.edu/Resnick.

For questions, or to be added to our mailing list for future events and opportunities, please email resnickprogram@law.ucla.edu.

To keep up‐to‐date on the Food Law Lab program information and events, please visit thefoodlawlab.org.  For any questions about the Food Law Lab, please email thefoodlawlab@law.harvard.edu.