Draft Nutrition Standards Proposed for Marketing Foods to Children

By Cassandra A. Soltis –

At the Federal Trade Commission’s ("FTC’s") conference yesterday on food marketing and childhood obesity, officials from the FTC, the Centers for Disease Control and Prevention, the Food and Drug Administration, and the United States Department of Agriculture unveiled tentative proposed standards for companies marketing foods to children aged 2-17.  The draft standards are the result of Congress’ 2009 Omnibus Appropriations Act (H.R. 1105), which directed these federal agencies to create an interagency working group to study and develop recommendations for such standards and to determine the scope of media to which the standards should apply. 

There are currently three tentative standards that companies can use in deciding whether a food can be marketed to children.  A food falling within Standard One is deemed to be a part of a healthful diet and may be marketed to children without regard to the requirements of Standards Two and Three.  Standard One foods include 100% fruit and fruit juices in all forms, 100% whole grains, and 100% non-fat and low-fat milk and yogurt.  “100%” is defined “as no added nutritive or non-nutritive sweeteners and no other functional ingredients added to the product, except for flavoring for water, milk, and yogurt.” 

Standards Two and Three are intended to be read together.  Standard Two lists foods that provide a meaningful contribution to a healthful diet, and Standard Three lists limits on the amounts of certain nutrients that can be present in Standard Two foods.  Standard Two foods include fruits, fruit juices, beans, vegetables, fish, nuts, and eggs, among other items.  Standard Two foods must be present in the product in a specific amount.  Standard Three limits the amount of trans fat, saturated fat, sugar, and sodium in the Standard Two foods.  Accordingly, if a vegetable product contains enough vegetables to qualify as a Standard Two food but contains, for example, 0.5 g or more of trans fat per reference amount customarily consumed, the food should not be marketed to children.   

The interagency working group stressed that the standards are not a regulatory proposal, but the final report on the standards will be given to Congress no later than July 15, 2010.  The group will publish a notice in the Federal Register that will request comments on the draft standards and ask for feedback on several questions, such as whether there should be standards for two age groups instead of one large age group, whether certain foods should be added or eliminated from the standards, and how “marketing to children” should be defined.