This blog post starts with a confession: I used to love McDonald’s. When I was a kid I played in McDonald’s playgrounds and collected the toys from Happy Meals – we have some of them still at home. I can even remember what I ordered from McDonald’s because I had exactly the same thing every time: a Happy Meal with a hamburger, and six chicken McNuggets that I shared with Dad.
Lately I’ve had a bit of a falling out with McDonald’s – and I’m not the only one. In 2004, Michael Spurlock’s documentary, Supersize Me, graphically depicted the effects of prolonged fast-food consumption. Eric Schlosser’s book, Fast Food Nation, showed how the evolution of the fast-food industry had endangered the health of both consumers and industry employees. As America’s obesity epidemic gained momentum, health activists pointed the finger at the food industry, generating law suits, public protests and the threat of government regulation.
One particularly pressing concern was how Big Food targeted children in advertising for its products. Academic research – including studies commissioned by the World Health Organization – described the manipulative tactics used by the food industry to take advantage of children’s susceptibility to commercial messaging, as well as prolific advertising for fast-food, sugary cereals, sodas and salty snacks.
This research also showed that advertising influences children’s food preferences, what they ask their parents to purchase for them and their actual consumption habits, independent of other factors. This effect occurs through children’s overall exposure to advertising – regardless of whether they or adults are the advertiser’s target market.
The food industry has responded rapidly to pressure from governments, consumers and health advocates to change its marketing practices. Food companies have developed internal policies on advertising to children, accompanied by the creation of healthier children’s foods and beverages, reduced portion sizes, improved product labeling and the provision of nutrition information to consumers. Multinationals such as McDonald’s and PepsiCo incorporate these measures in sophisticated corporate social responsibility programs, which are supported by dedicated teams of nutritionists, policy advisors, scientists and lawyers.
Food companies have also joined together to create industry-wide obesity prevention initiatives, often in partnership with national governments, NGOs and health organizations. These initiatives include advertising ‘pledges’ that aim to shift advertising to children towards healthier food and beverages. One of the first such pledges was the US Children’s Food and Beverage Advertising Initiative(CFBAI), established in 2006 by 10 leading US food companies. Similar pledges followed rapidly in other national and international jurisdictions, including in Canada, Australia, Spain and the European Union.
These advertising pledges all follow a similar format. Companies agree to abide by a set of principles on food advertising to children, set out in a main code document. Participants write ‘action plans’ describing how they will apply these principles to the company’s advertising practices. The pledges are accompanied by processes for administering the scheme and monitoring participants’ advertising conduct – but sanctions for non-compliance are uncommon.
Participants to the American CFBAI agree to market only ‘healthier products’ in media that has an audience share of 35% or more children (defined as those aged 12 years or under). Companies use nutrition criteria to determine which of their products meet maximum caps for sodium, fat, sugar and total calorie content and are suitable for advertising to children. Companies also restrict their use of licensed characters, celebrities, movie tie-ins and interactive games to promotions for healthier products. Additionally, the CFBAI prohibits product placement in food advertising to children, as well as food marketing in elementary schools.
The CFBAI is accompanied by its own mini-bureaucracy. The pledge is administered by the Council of Better Business Bureaus, an NGO that sets self-regulatory standards for business. Companies write statements describing how they will implement the codes’ core principles, and they report to the Council each year on their compliance practices. The Council also monitors companies’ advertising practices and produces an annual report on the CFBAI’s operation.
According to these annual reports, the CFBAI has been a huge success. Companies have reduced the salt, sugar and fat content in products advertised to children, and have included more fruits, vegetables and whole grains in their foods. The Happy Meal of today looks a little different to the one I ate as a child, with McDonald’s automatically including a bag of apple slices in each meal, making low-fat chocolate milk available as a beverage option and including a smaller serving of French fries. Several companies say they have stopped advertising to children under 12 altogether, including Hillshire Brands (formerly Sara Lee) and Coca-Cola.
The Council of Better Business Bureaus reports high levels of compliance with the CFBAI, with only a few instances of (unintentional) non-compliance. It points to the progressive evolution of the CFBAI as another sign of success, including the code’s expansion to videos, computer games, and cellphone and viral marketing, and the adoption of more stringent uniform nutrition criteria in 2014. (Previously, companies used nutrition criteria of their choice to identify ‘healthier products’ that can be advertised to children.)
These findings are echoed in the Federal Trade Commission’s 2012 report on food marketing to children, which concluded that “the food and beverage industry, and in particular the CFBAI, have made major strides since the early days of self-regulation in 2006.” First Lady Michelle Obama also praised the program at the 2013 White House Convening on Food Marketing to Children, saying that “these new standards are beginning to have an impact, and I commend all of these companies for taking action.”
Yet health activists challenge the industry’s claim to success. Independent studies find much higher rates of non-compliance with advertising pledges than industry-sponsored research. According to public health experts, reports of an overall decline in child-directed advertising hide increases in specific categories of promotion, including advertising for fast-food restaurant,s and promotions in new forms of media, such as on websites and in social media such as Facebook.
Researchers conclude that voluntary advertising pledges have done little to reduce children’s overall exposure to marketing for unhealthy foods and beverages. The conflict between these findings and those of the food industry may result from differences in how each party measures the success of self-regulation. But in the US context at least, it also reflects a series of loopholes in the terms and conditions of the CFBAI.
1. The CFBAI is voluntary
The CFBAI has seventeen members, including Burger King, Campbell Soup, Coke, Hershey’s, Kellogg, Kraft, Mars and McDonald’s. Despite these companies being some of the world’s biggest food advertisers, 40% of US television food advertising comes from companies that aren’t members of the code. Non-participants can’t be forced to join the CFBAI, making it difficult for the code to achieve coverage of all food promotions.
2. It excludes key marketing techniques and communication channels
The food industry has expanded the CFBAI to incorporate more media platforms and marketing techniques, but it still excludes company-owned characters such as Ronald McDonald and Hershey’s M&Ms ‘spokes candies.’ Also excluded are premium offers (i.e., offering a free gift or toy with a fast-food meal or other food product), product packaging and labeling, in-store promotions, product displays and forms of promotion in and around fast-food restaurants.
3. It doesn’t cover all forms of school-based promotion
Companies agree not to advertise food in elementary schools, but they continue to promote food in middle and elementary schools. Restrictions on in-school advertising also exclude fundraising sponsored by food companies, donations to schools, curricula materials and reward programs, including Nestle’s Healthy Steps for Healthy Lives, a program that helps educators teach children about health, Pizza Hut BOOK IT!, which rewards children with free pizza, and General Mills Box Tops for Education, a fund-raising program for schools.
Image of: boxtops4education.com
The CFBAI doesn’t apply to corporate sponsorship of children’s sports events, such as McDonald’s support for Little League, or sponsorship of concerts and other cultural events that may be attended by large numbers of children.
4. Weak nutritional standards allow companies to advertise a range of unhealthy products to children
The Federal Trade Commission’s 2012 report described improvements in the nutritional quality of food advertised to children, with decreases in sodium, sugar and fat due to the reformulation of existing products, the creation of new products, and unhealthier products being removed from the market. Yet the nutrition standards adopted by the CFBAI in 2014 allow companies to advertise products to children such as Coco-Pops, Chocolate Lucky Charms and Hershey’s Cookies ‘n’ Crème cereals, Popsicles, Kid Cuisine Cheese Pizzas and Mini Corn Dogs, and Kraft Macaroni and Cheese dinners.
5. Companies can circumvent nutrition standards through brand promotion
Companies can circumvent the CFBAI’s nutrition standards by promoting their brands rather than food products per se. This could include, for example, Ronald McDonald visiting schools to teach children about nutrition, or sports equipment and classroom material branded with companies’ logos. Yet brand logo exposure increases children’s long-term preference for branded products, helping companies turn children into life-long customers. Branding can also influence taste perceptions: in one study, children said they preferred the taste of food that they thought was from McDonald’s compared to identical unbranded products
6. The definition of ‘advertising to children’ excludes the vast bulk of companies’ promotions
The CFBAI’s biggest loophole is the way in which it defines ‘advertising primarily directed to children.’ Companies must not advertise in media that has an audience share of 35% or more children, yet only around 5% of television programs meet this requirement. As a result, companies can circumvent the code by advertising in family programs watched by large numbers of children, but where children make up less than 35% of the audience. This includes holiday movie specials such as Shrek the Halls and Charlie Brown Christmas, and programs such as Hannah Montana, American Idol and Modern Family.
Image from: Wikipedia.com
Very few websites that are popular with children meet the 35% audience share requirement. Nick.com, Neopets.com, CartoonNetwork.com and Disney Channel are four of the most popular websites with children aged 2-11 years, but they have an audience share of less than 35% children. They also account for 83% of the food advertising on the top 20 most popular children’s websites – around 235, 325 views per month. The exclusion of popular children’s websites is particularly concerning given food companies’ increasing advertising spend in digital media, with the majority of online food advertising promoting high-sugar cereals and fast-food restaurants.
Where to from here?
To summarize, the CFBAI’s loopholes mean that it rarely applies to food advertising, and when it does, it makes few hard-hitting demands of companies that participate in the pledge. It leaves participants free to promote their products through sophisticated advertising strategies that integrate promotions across multiple communication channels, such as mobile apps, advergames, facebook pages and banner ads on third-party websites, as well as advertisements in more traditional forms of media such as television and radio.
We can draw the conclusion that food advertising should be regulated more tightly, but the food industry fights aggressively against any form of government interference in its profit. In 2009, following concerns about the CFBAI, the US Congress directed the Federal government to convene an Interagency Working Group on Marketing to Children, with representatives from four government agencies. This group sought to develop uniform standards for the nutritional quality of food advertised to children, which the food industry would (voluntarily) adopt for use in the CFBAI.
During congressional committee hearings, members of the Republican Party and the food industry argued that the standards were ‘quasi-regulatory,’ ineffective and encroached on First Amendment rights. The food industry spent $6.6 million lobbying against the standards during the first quarter of 2011 and also announced that it would adopt its own (weaker) uniform nutrition criteria, doing away with the need for the Working Group’s tougher standards.
The Working Group revised its proposal following industry resistance, but Congress then required the standards to undergo a cost-benefit analysis – a measure usually applied only to mandatory regulation, and one which effectively sunk the Working Group’s proposal.
This is just one example of how Big Food has forestalled, weakened and subverted government policy on obesity prevention. Health activists have responded to such tactics by calling for strong, mandatory regulation of the industry’s practices and products. They argue that the industry can’t be an effective partner in public health initiatives because of a fundamental conflict of interest between its need to make a profit, and the public health objective of reducing consumption of junk food.
In light of Big Food’s political power, and constitutional protections on free speech, public health activists need to design innovative strategies for regulating food advertising that don’t necessarily involve full-scale legislative bans. This could include heightened government oversight of self-regulatory programs, independent third-party monitoring and audits of compliance, external review and meaningful sanctions for non-compliance.
The ultimate goal of food advertising regulation must be to decrease children’s exposure to food advertising, rather than reducing advertising that targets them directly, which is only a very small amount of the advertising that children see. By clearing junk food advertising out of children’s physical and online environments, we might help shift social norms about what’s appropriate to feed to our children. And then perhaps the next generation of children won’t grow up loving McDonald’s as much as I did.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.