Advertising and childhood obesity: the role of the federal government in limiting children's exposure to unhealthy food advertisements.

• Author: Mikailova, Milena

Table of Contents I. Introduction II. the Role of the Federal Government in Curbing Childhood Obesity III. The Inadequacy of Self-Regulation IV. International Perspectives A. Overview of Efforts to Limit Unhealthy Food Advertisements in Europe B. A Closer Look: The United Kingdom and Quebec 1. United Kingdom 2. Quebec V. The Children's Television Act VI. Proposed Solution VII. The First Amendment and Regulations Limiting Commercial Speech as They Relate to Restrictions on Advertising A. The Applicable Standard B. Regulation of Unhealthy Advertisements Directed at Children as a Valid Restriction on Commercial Speech 1. Constitutionally Protected Speech and Substantial Government Interest 2. Regulation Directly Advances the Government Interest 3. Narrowly Tailored Standard VIII. Conclusion I. INTRODUCTION

Children are inundated with advertising for foods of poor nutritional quality, watching approximately 4,000 food-related advertisements per year in the United States, ninety-eight percent of which feature products that are high in fat, sugar, or sodium. (1) Exposure to such advertisements has been shown to influence the food preferences, purchase requests, and dietary intake of children aged two to eleven. (2) One in seven children between the ages of two and eleven are currently obese. (3) Obese children are more likely to develop serious health conditions, such as high blood pressure, asthma, cardiovascular disease, and type 2 diabetes. (4) With hospitalizations of children for obesity-related illnesses on the rise, the annual direct cost of childhood obesity is reaching nearly $14.3 billion. (5) Despite these statistics, television advertisements for unhealthy foods continue to be aired during children's programming.

The federal government has recognized that childhood obesity is a problem that must be addressed. Although the Joint Task Force on Media and Childhood Obesity and the Interagency Working Group on Food Marketed to Children were launched with good intentions, they have not helped to reverse the trend in childhood obesity. (6) Furthermore, industry self-regulation has been ineffective at adequately reducing the number of television advertisements featuring nutritionally poor foods. (7) Children continue to be exposed to a large volume of commercials that advertise products containing high amounts of saturated fat, sugar, and sodium. (8)

The federal government must reevaluate its efforts to decrease the prevalence of childhood obesity. Congress should provide explicit direction to the Federal Communications Commission ("FCC") to restrict the advertisement of unhealthy foods during children's programming, defined in the regulations issued by the FCC pursuant to the Children's Television Act of 1990 ("CTA") (9) as programs "originally produced and broadcast primarily for an audience of children 12 years old and younger." (10) Further, Congress should delegate to the Food and Drug Administration ("FDA") the task of determining and adopting nutritional standards identifying which foods are unhealthy for consumption by children in this age group.

Part II of this Note examines the various initiatives that have been launched by the federal government in an effort to combat childhood obesity. Although the government has attempted to play a role in reducing the prevalence of childhood obesity, it must become more involved in order to make any significant progress. Part III of this Note then discusses the Children's Food and Beverage Advertising Initiative, an attempt at industry-self regulation that has failed to considerably reduce children's exposure to unhealthy food advertisements. Part IV of this Note surveys the measures taken by numerous European countries to reduce children's exposure to televised advertisements of unhealthy food and then provides a closer examination of the efforts made by the governments of the United Kingdom and Quebec, Canada, to achieve this goal. The success of these foreign efforts should prompt the United States government to undertake a more active role in the nation's fight against childhood obesity.

Part V of this Note provides a brief overview of the CTA and the requirements that it imposes on broadcasters and the FCC. Following the summary of the CTA, Part VI proposes a regulation restricting the advertisement of certain food products during children's programming as a possible solution to the childhood obesity problem. Part VII of this Note then outlines the development of the commercial speech doctrine and examines the Central Hudson test, the modern-day analysis used by the courts to determine whether a regulation on commercial speech is constitutional. Finally, this Note applies the four-part Central Hudson test to the proposed legislation and determines that the courts will likely uphold such a regulation. (11)

2. THE ROLE OF THE FEDERAL GOVERNMENT IN CURBING CHILDHOOD OBESITY

   The federal government has acknowledged that the high incidence of childhood obesity across the nation is a problem that must be resolved. In 2006, the Joint Task Force on Media and Childhood Obesity ("Task Force") was created to bring together the food and beverage industry, advertisers, media companies, and government officials to evaluate the effect of media on childhood obesity and to establish voluntary industry standards to reduce advertising that is directed specifically at children. (12)

   Following the first meeting of the Task Force, then-Congressman Ed Markey, former Chairman of the House Subcommittee on Telecommunications and the Internet, (13) sent a letter to FCC Chairman Kevin Martin and Commissioners Deborah Taylor Tate and Michael Copps. (14) In this letter, then-Congressman Markey conveyed his concern that the Task Force and industry self-regulation may not succeed in reducing the volume of advertisements of unhealthy food products targeted at children. (15) Citing to the CTA, then-Congressman Markey stated that the FCC has an "affirmative obligation and the statutory authority to examine whether placing limitations on certain food advertising to children would further the public interest." (16) According to then-Congressman Markey, the FCC should establish limits on this kind of advertising unless the Task Force and industry self-regulation result in "dramatic and swift elimination of advertisements for junk food during children's programming." 17 Specifically, then-Congressman Markey recommended that the FCC prohibit stations from broadcasting any programming containing advertisements for unhealthy foods among its core educational programming requirements and enforce limits on the overall amount of advertisements that can be aired during children's programming. (18)

   As then-Congressman Markey predicted in his letter, achieving the goals set by the Task Force proved to be difficult. (19) While some voluntary commitments were made, ultimately the Task Force did not come to an agreement on two fundamental issues. First, the Task Force was unable to agree on uniform nutritional standards that could be used to distinguish healthy foods from unhealthy foods. (20) Second, no agreement was reached on the willingness of media companies to set a limit on their advertising of unhealthy foods during children's programming. (21) Although the Task Force was not entirely successful in accomplishing its stated objectives, the fact that it was convened in the first place is significant. The establishment of this Task Force reflects acknowledgement by the federal government, media companies, and the food and beverage industry that the role of the media in contributing to childhood obesity must be addressed.

   In addition to the Task Force, the Interagency Working Group on Food Marketed to Children ("Working Group") was formed pursuant to a provision of the 2009 Omnibus Appropriations Act (22) to help reduce the incidence of childhood obesity. (23) The Working Group, consisting of representatives from the FDA, Center for Disease Control ("CDC"), U.S. Department of Agriculture, and the Federal Trade Commission ("FTC"), was responsible for developing recommendations for uniform nutrition standards for foods marketed to children aged two to seventeen and for determining the scope of media to which such standards should apply. (24) In April 2011, the Working Group released for public comment tentative voluntary standards to guide industry self-regulatory efforts in improving the nutritional content of foods that are most heavily advertised to children. (25) Among the Working Group's proposed restrictions were targets for limiting the amount of sodium, saturated fat, trans fat, and added sugar. (26) The Working Group recommended that the food industry, through self-regulatory efforts, ensure that all food products within the categories of food most heavily marketed to children meet these standards by 2016. (27) These limitations would apply to advertisements on television during programs where children between the ages of two and eleven years old constitute thirty percent of the audience and where adolescents from twelve to seventeen years old constitute twenty percent of the audience. (28)

   On October 12, 2011, the FTC testified about the Working Group and its own efforts to help address childhood obesity before the U.S. House of Representatives. (29) The FTC testified that the Working Group was considering the many comments it received and was contemplating making significant revisions to its initial proposed principals before submitting final recommendations to Congress. (30) However, Congress was concerned that companies would find it difficult to follow the proposed guidelines, which in its view were overly restrictive and unrealistic. (31) Ultimately, the final guidelines were never released because the Working Group dissolved following Congress's comments. (32) Nevertheless, the fact that the federal government established the Working Group as an effort to reduce the occurrence...