The breath of the obesity epidemic being witnessed in the United States is troubling.  Some states now show that over 30% of their respective populations are obese, with many of these metrics still growing.  Worse, the epidemic’s fastest acceleration has been in its youngest demographic: children (although that may finally be slowing).

FTC Sizing Up Conference Logo

Theories have been entertained to determine what is causing the obesity problem in children.  Sedentary activities like video games and television regularly are brought out to the whipping post as the cardinal reason for the rapid rise but another view, that of food marketing to youth, has received increasing attention.  That attention culminated in a summit put together by the FTC called Sizing Up.

For older readers in our audience, this may seem to be a cruel reminder of the history behind this issue.  Back in 1978, the FTC made a move to ban just this type of advertising before it was stripped of that very ability by Congress later in 1980.  Fueled by the obesity epidemic, the FTC felt compelled to revisit the issue some 30 years later.  Nutrition Wonderland also felt compelled to attend the star-studded event (by government standards at least), with Kathleen Sebelius, the secretary of the US Health and Human Services department giving the keynote – and plenty of other notable attendees present.

The View From Above

Secretary Sebelius opened the conference with a keynote speech that was both informative and defensive.  She took her audience through some of the statistics about obesity, the most striking is that it will cost the US an estimated $350-400 billion dollars by 2020 to address the obesity epidemic if it continues to grow as it has in the past.  Remember those numbers are in 2005 dollars and inflation will likely raise that cost another 40-50%.


A 2008 Map of Obesity Rates in US by State, note that red is +30%

Her other thoughts were focused on what the FDA is doing to counteract the problem of advertising food to minors.  Namely, the FDA is doing a comprehensive review of what they term as ‘front of package labeling‘ (FOP).  This concept deals with all the eye candy food marketers use to indicate how healthy their products are – especially in the cereal industry.  The industry sponsored Smart Choices program, which the industry was doing to coordinate their nutritional packaging information (deemed a debacle by the agency), was the unspoken focus of much of the attention here.  FDA regulators are moving towards creating a new standard to be applied across the industry that will supersede the self-regulatory efforts of industry up until this point, welcome news to consumers – but this was about the point at which welcome news ended.

Evidence is Beyond Compelling

Major research presented at the conference following Sebelius did not really uncover anything new.
 It reinforced findings that TV advertising is directly causing overeating with a variety of interesting approaches taken by the research teams around the world to prove this point.  Some looked at the ads themselves on TV and how that influenced behavior while other approaches studied the psychological effects of newer ‘advergames’ on the internet children play.  Whatever the method, the message was clear: all this advertising was having a major effect on children’s eating behaviors, pushing them to eat more often and lower quality foods then they would otherwise.

Childhood Obesity Up Close

Still, this part of the FTC conference actually had a good speed to it and they quickly went through all the research.  In many ways, the research phase of the conference felt like a warm-up and, if you think about it, this makes sense.  The whole premise of the FTC is to protect the consumer so the mere fact they are holding a conference on the subject assumes there is a serious problem with the way foods are being marketed to children.

What was disappointing, however, was the way all this information was presented – in FTC’s own building! – with very little commitment to action.  We understand the desire to present the information but if the FTC, a consumer protection agency, calls a conference on a subject, there must a scientific consensus that action needs to be taken.  We found this portion of the conference incredibly counterproductive.  You just don’t get a many opportunities with the best minds in one room – why waste it presenting information everyone was already familiar with, especially with no commitment to action following those presentations?

How Free is this Speech?

The High Court, by laura padgett on flickr

Getting more to the actual issues at hand was the second phase of the conference.  The FTC called together some very bright lawyers to interpret how the 1st amendment applies to childhood advertising by food companies. What may at first sound trivial – how free speech applies to advertisements – is, in fact, crucial to understanding what regulators can legally do in this situation to limit these destructive ads.  The short answer: very little.

The core of the problem is that the Supreme Court views corporations as people, dating from a distant 1880s decision that created the idea of ‘corporate personhood’.  With that view, the Supreme Court has routinely held the view that corporations are fully entitled to the same free speech rights anyone of us would have.  This softened a bit as it crystallized into a set of legal standards to see if the corporate speech qualifies for protection via a case in 1980s called Central Hudson. The four part test looks like this (notice how each step is interconnected):

  • (1) whether the speech at issue concerns lawful activity and is not misleading;
  • (2) whether the asserted government interest is substantial; and, if so,
  • (3) whether the regulation directly advances the governmental interest asserted; and
  • (4) whether it is not more extensive than is necessary to serve that interest.

The Balancing Act

Applying these standards has proven difficult.  The FTC’s ability to make industry wide advertising bans was stripped in the 1980s so individual legal action against each TV spot, referencing the above Central Hudson test, would be required.  Obviously, that avenue is nearly impossible, which makes the Congressional decision to tie the FTC’s hands an invitation for more of this behavior.  The situation is compounded by separate corporate speech cases that have been challenged against Central Hudson, thereby strengthening the original decision and how it might be used to defend against childhood obesity.

With the idea that food industry “advocacy is not fraud,” Martin Redish, a professor of law at Northwestern University that has written more than ten books on the first amendment, shows, convincingly, that there is a defense for industry here hidden away here inside the First Amendment.

His view is that corporate speech is a slippery slope, even with the Central Hudson 4 step tango. He takes a strict constructionist view of the first amendment here: the second any type of agency from the government makes the choice that certain types of communication from a ‘person’ can be regulated you undermine the entire basis of the first amendment – which is the free expression of ideas.

Using Redish as a crutch, the following speaker Dan Jaffe, executive Vice President of Government Relations (read: lobbyist) for the Association of National Advertisers (ANA) threw his two cents into the mix, in a much less convincing package.  He presented his case on whether or not to ban childhood advertising and – surprise surprise! – he felt that the government should leave the whole thing alone because corporations are entitled to free speech, echoing Redish.

Further, Jaffe reminded us, the prestigious Institute of Medicine evaluated the issue of obesity and “restricting free speech was not in their list of recommendations.”  The ANA itself has launched a bunch of initiatives to show they are trying to get their act together but the measure rang hollow, especially at conference that was specifically aimed at curtailing their very activities.  Jaffe immediately reminded us of an old saying from Mr. Upton Sinclair:  “It is difficult to get a man to understand something, when his salary depends upon his not understanding it.”  Enough said.

Yet another view of the first amendment was presented by David Yosifon of Santa Clara University and I found his argument the most compelling on this panel.  He focused on the concept of power economics and the efficiency of the market – basically arguing that information is so overwhelming and so sneaky that it is not truly information being communicated in a just manner, effectively failing the first point of the central hudson test.  In essence, the consumer does not have the ability to do decide on the efficacy of the argument being made, especially since they are so young.  “Puffery” is name he gave to the practice of corporations sliding messages into advertisements and it seems apt to apply that here.

The Long and Winding Road

We can tell you this much from these speeches (which were excellent): Dr. Redish presented the first amendment as so flexible in regards to corporate personhood that it would not make sense for the FTC to repeat their defeat in the 1980s of trying to get childhood advertising banned.  If you go further into the issues presented here today, you get the overriding sense that the Supreme Court is forcing consumers to act on their own behalf.  This idea really does speak to the ideal of what America is about but its blind to the reality facing our society.

When our youngest people are being assaulted by subliminal messages to eat, embedded in a distribution model that is almost invisible to them, the first amendment can not – and should not – apply.  Free speech is limited in many ways.  You can’t scream ‘fire’ in a theatre full of adults, why should you be able to whisper ‘eat Froot Loops’ into a kid’s head ten times a day?

Everyone on either side of the issue clearly understood the connection between the way these ads aimed at children are literally targeting their subconscious behaviors, training them into obese eating machines before they even possess the ability to make conscious decisions.  How this could not be construed as violating one tenet of the Hudson test is beyond us.

Time to Walk that Walk

The practice is simply gross, there are no others words to describe it.  But shame doesnt get very far with multinational companies – and the FTC of all organizations should know  this.  The real emphasis seems like it should be put into creating a legal framework from which the FTC can actually create binding regulations to limit the practice, or at least rules on how as to not harm consumers.  As so often is the case, the buck really stops with Congress as they write the laws and would have to directly address corporate personhood or give the FTC back the industry-wide banning abilities it took from them in 1980.  The history is especially interesting:

Seeing as this is not a legal blog, the details of how this would be implemented are outside our areas of expertise, but the continued use of the first amendment as a way to turn America’s youth into obese zombies should be off the table.  Even industry, with their feigned attempts at creating self-regulatory mechanisms, seems aware of the contradiction here.

So, we left this conference, like so many others, wondering what the goal was.  Networking is admirable inside any industry but the FTC is a special unit of the US government tasked with protecting consumers.  They herded the best minds in the world into one room, where everyone is keenly aware of how these junk food ads are creating obese kids, and did nothing.  It would seem a far better use of everyone’s time would to bring these experts together to a multi-day conference where the end goal is produce a concrete way to eliminate these ads – one that involved the appropriate Congressional subcommittees who could act on the issue.  Nothing at this conference brought us any closer to that reality.