Advertising obesity: can the U.S. follow the lead of the UK in limiting television marketing of unhealthy foods to children?

• Author: Darwin, David

ABSTRACT

Childhood obesity has tripled in the U.S. since the 1970s, and television advertisement of unhealthy foods has been linked to the unhealthy eating habits of children. The United Kingdom, facing a similar problem, promulgated regulations in 2007 banning the advertisement of foods high in fat, sodium, and sugar during programming directed at children below age 16.

In the U.S., industry representatives, public policy advocates, and government officials are debating whether to rely on self-regulation efforts or to implement government-established guidelines. Industry representatives argue that government guidelines would do little to solve the childhood obesity problem and that the UK regulations did more damage than good. Advocates argue that these advertisements significantly encourage unhealthy eating habits. This Note compares the path such regulations would have to take in the U.S. as compared to that in the UK and analyzes the arguments for and against implementing UK-style regulations in the U.S. This Note concludes that American implementation of the UK's limited restriction of such advertising is an appropriate step toward reversing the rate of childhood obesity in the United States.

TABLE OF CONTENTS I. INTRODUCTION II. BACKGROUND A. History of U.S. Efforts B. UK Ban III. COMMUNICATIONS REGULATORY STRUCTURE IN THE UNITED KINGDOM AND THE UNITED STATES A. Ofcom B. The Federal Communications Commission C. The Federal Trade Commission D. Self-Regulation: The Children's Food and Beverage Advertising Initiative IV. ARGUMENTS AGAINST IMPOSING THE BRITISH SYSTEM A. Criticism From the Media, Advertisers, and Food and Beverage Manufacturers 1. Reduced Funding for Quality Children's Programming 2. Minimal Impact of Advertising on Children's Health 3. Inappropriate Age Range B. Criticism from Public Advocates V. TRANSLATION INTO UNITED STATES POLICY A. Some Action Should Be Taken 1. With Such a Large Target Consumer Market, Children's Television Programming Can Rebound 2. Advertising of Unhealthy Food Does, in Fact, Impact Children's Health 3. Advertising Restrictions Should Be Extended to Cover Older Children as Well B. Constitutional Implications and a Pre-Watershed Absolute Ban VI. CONCLUSION I. INTRODUCTION

In the United States and the United Kingdom, advocates, government officials, and parents have expressed concern over the drastic increase in the weight of children. (1) In just three decades, the rate of childhood obesity in the U.S. has more than tripled, from about 4% of six- to eleven-year-olds in the 1970s to more than 15% of the same age group in 2004. (2) In the UK, the problem is even more serious. Between 1995 and 2004, the rate of obesity in British children between ages two and ten rose from 10% to 16% in boys and from 10% to 11% in girls. (3) At the same time in the UK, the rate among children between ages eleven to fifteen rose from 14% in boys and 15% in girls to 24% and 26%, respectively. (4) These alarming statistics have regulators and legislators searching for solutions, and some proposals include television advertisements targeting children. (5) In the U.S., the problem remains that half of all television advertisements promote food. (6) Moreover, of that half, 72% promote candy and snacks, cereal, and fast food. (7)

Why do such advertisements present such a problem for children's eating habits? Advertisers take aim at children because of their significant buying power, either through direct purchases made on their own or through pressure exerted on their parents, specifically in regards to food purchased at the grocery store and restaurants. (8) Further, while "the fast food industry is an important force in the obesity epidemic ... [,] the television and video industries play a key role by directly advertising foods to children and by encouraging sedentary behavior. The best single predictor of obesity is television viewing." (9) Although advertisers contend that advertisements do not lead directly to over-consumption of unhealthy foods and consumers believe that they are not susceptible to advertising, television advertisements are an effective tool when directed at children. (10)

U.S. regulators have long addressed advertising to children but have never implemented sweeping or direct initiatives dealing with it. (11) However, the connection between childhood obesity and television advertisements of unhealthy foods has sparked new life in the debate over such initiatives. (12) The UK has similarly discussed the issue for some time, (13) but, unlike the inaction in the U.S., UK regulators have taken a more forceful and direct stand against certain advertising practices targeting children--completely banning the advertising of certain food categories to children. (14)

While other nations, such as Sweden and Norway, have addressed these and other concerns by completely banning all advertising directed at children of certain ages, lawmakers in the U.S. recently have only considered regulation to narrow television advertising directed at children. (15) Since the February 2007 announcement by the British Office of Communications (Ofcom) concerning its new policies regarding food advertising to children, (16) U.S. policymakers have begun discussing the implementation of similar methods. (17) This Note addresses how the authority of U.S. regulatory agencies, including the Federal Trade Commission (FTC) and the Federal Communications Commission (FCC), can interpret--as the law stands or through Congressional action--their directives in order to mirror Ofcom and the Food Standards Agency (FSA) with respect to the issue of banning the advertisement of all unhealthy foods during children's television programming.

While others have advocated the implementation of restrictions against certain advertising practices, this Note focuses only on a total ban on the advertisement of unhealthy food to children and the boundaries of such a ban. Some advocate the reduction in overall amount of time allowed for advertisement during children's programming; (18) however, it is the content of commercials that causes damage to children and not the duration of or number of advertisements. (19) Similarly, some advocate restrictions on the use of character selling (the use of brand characters or licensed characters to promote products), product placement, and other advertising techniques. (20) However, critics counter that restricting advertising tools rather than the advertisements as a whole would not significantly address the problem because "the problem is not so much that advertisements are deceptive, but that the products advertised are most often for food of poor nutritional quality." (21) Therefore, as the problem of childhood obesity is accentuated not merely by the advertising techniques used but by the wholesale advertisement of those products, this Note addresses the elimination of advertising those products rather than restricting methods used to promote those products through television advertising. Given that advertisers are willing to spend hundreds of millions of dollars each year marketing food, beverages, and restaurants to children, (22) they likely will find a means of making those advertisements effective.

Part II of this Note discusses the background of the issue, including a brief history of regulation of children's advertising in the U.S. and the details of Ofcom's newest regulations. Part III will compare the current authority and limitations of U.S. and UK regulators in dealing with children's advertising. Part IV addresses arguments against the imposition of Ofcom's regulations both in the UK and the U.S. Part V proposes the implementation and implications of new Ofcom regulations in the United States. Finally, the conclusion summarizes the reasoning for rejecting criticisms of and accepting the U.S. translation of Ofcom's policy banning unhealthy food advertisements from children's television.

2. BACKGROUND

   1. History of U.S. Efforts

      Politicians in Washington have hotly debated advertising during children's television programming for several decades. (23) While this issue has recently been characterized by regulatory threats followed by self-regulatory compromises, the 1970s saw demands from public interest groups that fueled a much more aggressive position in the executive agencies. (24) In 1971, the FCC, responding to petitions from the group Action for Children's Television, a public interest group dedicated to reformation of programming and advertising, issued regulations requiring a "clear separation" between programming and advertising. (25) The regulations included bans on program-length commercials targeting children, host-selling (advertisement by a character in a program during that program's airing), and requirements that advertisements be clearly delineated from programming by phrases such as "We'll be back after these messages." (26) Action for Children's Television then persuaded the FTC that children's advertising unfairly targeted children because they are too young to understand the intent of advertising. (27) Television and advertising companies countered quickly by successfully lobbying Congress for legislation restricting the FTC from taking such action, which effectively ended any such broad regulations. (28)

      During the 1980s, several public advocacy groups, including the National Coalition on Television Violence, the National Citizen Committee for Broadcasting, and the Parent Teacher Association, released reports and public policy statements encouraging federal action to promote educational children's programming and discouraging violent content. (29) Action for Children's Television used this atmosphere to make its final push for legislative action, resulting in the Children's Television Act of 1990 (CTA), the first federal legislation directly addressing children's programming. (30) Congress based this new legislation on the premise that "as...