Kidvid Flashbacks? FTC Considers Curtailing Proposed Voluntary Principles for Marketing Food to Children

By Cassandra A. Soltis –

Earlier this year, we reported on the Interagency Working Group’s (“IWG’s”) proposed voluntary principles for marketing food to children.  The IWG includes representatives from the Federal Trade Commission (“FTC”), the Centers for Disease Control and Prevention, the Food and Drug Administration, and the United States Department of Agriculture (“USDA”).  As a result of comments the IWG received from stakeholders, it now appears that the proposed voluntary principles will be significantly modified. 

In recent testimony before the House Energy and Commerce Committee’s Subcommittee on Health and Subcommittee on Commerce, Manufacturing, and Trade, the FTC’s David Vladeck, Director of the Bureau of Consumer Protection, stated that consumer and public health advocates “strongly supported the proposal as one that would significantly improve the nutritional profile of foods marketed to children.”  In contrast, the “common theme of industry . . . was that the proposal was simply unworkable and should be withdrawn.”  However, the Council of Better Business Bureau’s Children’s Food and Beverage Advertising Initiative ("CFBAI"), which currently has 17 member companies, did submit its own nutrition principles to the IWG for consideration. 

The “anticipated revisions” to the voluntary principles are apparently intended to “address industry’s concerns” and overlap somewhat with the CFBAI’s nutrition standards.  Some of the changes include revising the marketing activities that fall within the scope of children’s media to those “used most extensively to specifically target children ages 2 to 11,” which would exclude adolescents ages 12 to 17, except for certain in-school marketing activities.  In addition, the criteria for determining whether marketing is directed to children would be modified so that they “are flexible enough to be neither over-inclusive – covering marketing to a general or family audience – nor under-inclusive – leaving out marketing that is clearly targeted to children.”

So why the change of heart?  Perhaps the FTC is having flashbacks from its unsuccessful “Kidvid” rulemaking, in which the Commission’s efforts to ban certain television advertisements directed to children ultimately resulted in Congress passing a law withdrawing the FTC’s authority to regulate advertising to children as unfair.  (The FTC retains the authority to take action against deceptive advertising to children, however.)  In addition, Congress allowed the FTC’s funding to lapse, which caused the agency to temporarily shut down.  (An FTC article provides an excellent overview of the Kidvid matter.)

The proposed revisions described in Mr. Vladeck’s testimony “are recommendations contemplated by the Working Group and have not yet been formally approved by the member agencies.”  The Commission will vote on the IWG’s report, provide it to the Department of Health and Human Services and USDA for final approval, and then submit it to Congress as directed in the accompanying statement to the 2009 Omnibus Appropriations Act.